Exhibit 1.1
CWABS, INC.
Asset-Backed Certificates, Series 2004-2
UNDERWRITING AGREEMENT
Dated the date specified on the signature
page hereof
The Firm or Firms
of Underwriters named
on the signature page hereof
Ladies and Gentlemen:
CWABS, Inc., a Delaware corporation ("CWABS"), proposes to cause to
be issued and to sell, severally and not jointly, to you, as underwriter
(each, an "Underwriter"), the principal amount of each class of Asset-Backed
Certificates of the series specified on the signature page hereof and
described in Section 2 hereof (the "Underwritten Public Certificates" and,
together with any certificates of such series retained by CWABS or CHL, if
any, set forth on the cover page of the Prospectus Supplement (as defined
below), collectively, the "Public Certificates") having the characteristics
set forth in the Prospectus Supplement, evidencing ownership interests in a
trust consisting of mortgage loans acquired by CWABS and secured primarily by
first liens on one- to four-family residential properties (the "Mortgage
Loans") and related property (collectively, the "Trust Fund"). The Mortgage
Loans will be of the type and will have the characteristics described in the
Prospectus Supplement, subject to the variances, ranges, minimums and maximums
set forth in the Prospectus Supplement, and will have the aggregate principal
balance set forth in the Prospectus Supplement, subject to an upward or
downward variance in principal balance, not to exceed the percentage set forth
in the Prospectus
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Supplement, the precise aggregate principal balance within such range to be
determined by CWABS in its sole discretion.
The Public Certificates, together with the other classes of
certificates of the series specified on the signature page hereof (the
"Private Certificates," and collectively with the Public Certificates, the
"Certificates") are to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of March 1, 2004 (the "Cut-off
Date"), among CWABS, as Depositor, Countrywide Home Loans, Inc., as seller
("CHL") one or more special purpose entities established by Countrywide
Financial Corporation, (together with CHL, the "Sellers"), Countrywide Home
Loans Servicing LP, as master servicer (the "Master Servicer"), The Bank of
New York, as trustee (the "Trustee") and BNY Western Trust Company, a
subsidiary of the Bank of New York, Inc., as co-trustee (the "Co-Trustee") as
specified in the Prospectus Supplement. The Underwritten Public Certificates
of each class will be issued in the minimum denominations and will have the
terms set forth in the Prospectus Supplement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto
in the Pooling and Servicing Agreement.
1. Representations and Warranties. CWABS represents and warrants to,
and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-109272),
including a prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and, as amended, has become effective under
the Securities Act of 1933, as amended (the "Act"). As of the Closing
Date (as hereinafter defined), no stop order suspending the effectiveness
of such registration statement has been issued and no proceedings for
that purpose have been initiated or, to CWABS's knowledge, threatened
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by the Commission. The prospectus in the form in which it will be used in
connection with the offering of the Public Certificates is proposed to be
supplemented by a prospectus supplement dated the date hereof relating to
the Certificates and, as so supplemented, to be filed with the Commission
pursuant to Rule 424 under the Act. (Such registration statement is
hereinafter referred to as the "Registration Statement;" such prospectus
supplement as first filed with the Commission, is hereinafter referred to
as the "Prospectus Supplement;" and such prospectus, in the form in which
it will first be filed with the Commission in connection with the
offering of the Underwritten Public Certificates, including documents
incorporated therein as of the time of such filing and as supplemented by
the Prospectus Supplement is hereinafter referred to as the
"Prospectus"). For purposes of this Agreement, the term "Basic
Prospectus" shall mean the Prospectus, in the form in which it was filed
with the Commission and declared effective on October 10, 2003. Any
reference herein to the Registration Statement, a preliminary prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date on which the Registration
Statement, as amended, became effective or the issue date of such
preliminary prospectus or the date on which the Prospectus is filed
pursuant to Rule 424 (b) under the Act, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date on which the Registration
Statement became effective or the issue date of any preliminary
prospectus
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or the date on which the Prospectus is filed pursuant to Rule 424(b)
under the Act, as the case may be, deemed to be incorporated therein by
reference.
(b) The Registration Statement and the Basic Prospectus, as of the
time the Registration Statement became effective did, and the
Registration Statement and the Prospectus, as of the date of the
Prospectus Supplement will, conform, and the Registration Statement and
the Prospectus as revised, amended or supplemented prior to the
termination of the offering of the Underwritten Public Certificates, as
of their respective effective or issue dates, will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder applicable to such documents as
of such respective dates, and the Registration Statement and the
Prospectus as revised, amended or supplemented as of the Closing Date
will conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder applicable to such
documents as of the Closing Date. The Registration Statement, at the time
it became effective, did not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and the
Prospectus as of the date of the Prospectus Supplement, and the
Prospectus as revised, amended or supplemented prior to the Closing Date,
as of the Closing Date, will not include any untrue statement of a
material fact and will not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that CWABS makes no representations, warranties or agreements as
to (i) the Underwriter Information contained in or omitted from the
Prospectus or any revision or amendment thereof or supplement
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thereto, such Underwriter Information being defined in the
Indemnification and Contribution Agreement, dated the date hereof (the
"Indemnification Agreement"), among CWABS, CHL and the other parties
named therein.
(c) The Certificates will conform in all material respects to the
description thereof contained in the Prospectus, and each of the
Certificates, when validly authenticated, issued and delivered in
accordance with the Pooling and Servicing Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement. Each Certificate of the classes, if any,
indicated to be "mortgage related securities" under the heading
"Summary--Legal Investment Considerations" in the Prospectus Supplement
will, when issued, be a "mortgage related security" as such term is
defined in Section 3(a)(41) of the Exchange Act.
(d) Each of this Agreement and the Indemnification Agreement has
been duly authorized, executed and delivered by CWABS. As of the Closing
Date, the Pooling and Servicing Agreement, the Indemnification Agreement,
and each insurance agreement, if any, referred to in the Prospectus
Supplement (each an "Insurance Agreement" and collectively, the
"Insurance Agreements"), between CWABS and the third party provider of
credit enhancement, if any (the "Certificate Insurer") included in the
Trust Fund will have been duly authorized, executed and delivered by
CWABS and will conform in all material respects to the description of the
Mortgage Insurance Policy contained in the Prospectus and, assuming the
valid execution and delivery thereof by the other parties thereto, this
Agreement, the Indemnification Agreement, the Insurance Agreements and
the Pooling and Servicing Agreement each will constitute a legal, valid
and binding agreement of CWABS enforceable in accordance with its terms,
except as the same may
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be limited (a) by bankruptcy, insolvency, reorganization or other similar
laws affecting creditors' rights generally, (b) by general principles of
equity and (c) by public policy limitations under applicable securities
laws as to rights of indemnification and contribution thereunder.
(e) CWABS has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Pooling and Servicing Agreement, the Insurance
Agreements, the Indemnification Agreement and this Agreement.
(f) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement,
the Indemnification Agreement, the Insurance Agreements, each Subsequent
Transfer Agreement or this Agreement, will conflict with or result in the
breach of any material term or provision of the certificate of
incorporation or bylaws of CWABS, and CWABS is not in breach or violation
of or in default (nor has an event occurred which with notice or lapse of
time or both would constitute a default) under the terms of (i) any
indenture, contract, lease, mortgage, deed of trust, note, agreement or
other evidence of indebtedness or other agreement, obligation or
instrument to which CWABS is a party or by which it or its properties are
bound, or (ii) any law, decree, order, rule or regulation applicable to
CWABS of any court or supervisory, regulatory, administrative or
governmental agency, body or authority, or arbitrator having jurisdiction
over CWABS, or its properties, the default in or the breach or violation
of
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which would have a material adverse effect on CWABS or the Certificates
or the ability of CWABS to perform its obligations under the Pooling and
Servicing Agreement, the Indemnification Agreement, the Insurance
Agreements, or this Agreement; and neither the delivery of the
Certificates, nor the consummation of any other of the transactions
contemplated herein, nor the compliance with the provisions of the
Pooling and Servicing Agreement, the Indemnification Agreement, the
Insurance Agreements or this Agreement will result in such a breach,
violation or default which would have such a material adverse effect.
(g) No filing or registration with, notice to, or consent, approval,
authorization or order or other action of any court or governmental
authority or agency is required for the consummation by CWABS of the
transactions contemplated by this Agreement, the Indemnification
Agreement, the Insurance Agreements, or the Pooling and Servicing
Agreement (other than as required under "blue sky" or state securities
laws, as to which no representations and warranties are made by CWABS),
except such as have been, or will have been prior to the Closing Date,
obtained under the Act, and such recordations of the assignment of the
Mortgage Loans to the Trustee or the Co-Trustee, as applicable (to the
extent such recordations are required pursuant to the Pooling and
Servicing Agreement) that have not yet been completed.
(h) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which CWABS or any
of its affiliates is a party, or to the best of CWABS's knowledge
threatened against CWABS or any of its affiliates, which could reasonably
result individually or in the aggregate in any material adverse change in
the condition (financial or otherwise), earnings, affairs,
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regulatory situation or business prospects of CWABS or could reasonably
interfere with or materially and adversely affect the consummation of the
transactions contemplated in the Pooling and Servicing Agreement, the
Insurance Agreements, the Indemnification Agreement or this Agreement.
(i) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) CWABS will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"), except to the extent permitted
in the Pooling and Servicing Agreement, and will not have assigned to any
person other than the Trust Fund any of its right, title or interest in
the Mortgage Loans, (2) CWABS will have the power and authority to
transfer the Mortgage Loans to the Trust Fund and to transfer the
Underwritten Public Certificates to the Underwriters and to transfer the
remaining Certificates to CHL, (3) upon execution and delivery to the
Trustee or the Co-Trustee, as applicable, of the Pooling and Servicing
Agreement, and delivery of the Certificates to CWABS, the Trust Fund will
own the Mortgage Loans free of Liens, other than Liens permitted by the
Pooling and Servicing Agreement, and (4) upon payment and delivery of the
Underwritten Public Certificates to you, you will acquire ownership of
the Underwritten Public Certificates, free of Liens, other than Liens
permitted by the Pooling and Servicing Agreement or created or granted by
you.
(j) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Indemnification Agreement, the Pooling and Servicing Agreement, the
Insurance Agreements and the Certificates have been or will be paid by
CWABS at or prior to the Closing Date, except for fees for
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recording assignments of the Mortgage Loans to the Trustee or the
Co-Trustee, as applicable, pursuant to the Pooling and Servicing
Agreement that have not yet been completed, which fees will be paid by or
on behalf of CWABS in accordance with the Pooling and Servicing
Agreement.
(k) The Master Servicer is qualified to do business in all
jurisdictions in which its activities as servicer of the Mortgage Loans
require such qualification except where failure to be so qualified will
not have a material adverse effect on such servicing activities.
(l) CWABS is not doing business with Cuba.
(m) CWABS is not in violation of its certificate of incorporation or
bylaws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is
a party or by which it or its properties may be bound, which default
might result in any material adverse change in the financial condition,
earnings, affairs or business of CWABS or which might materially and
adversely affect the properties or assets thereof.
(n) Neither CWABS nor the Trust Fund created by the Pooling and
Servicing Agreement will be subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended (the "1940
Act").
(o) CWABS possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it
and as described in the Prospectus, and CWABS has received no notice of
proceedings relating to the revocation or modification
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of any such license, certificate, authority or permit which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the business, operations,
financial condition or earnings of CWABS.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, CWABS
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from CWABS, the respective original Certificate Principal Balance of
each Class of Underwritten Public Certificates to be purchased by such
Underwriter as specified in Schedule A attached hereto. The purchase price at
which each Underwriter will purchase its Underwritten Public Certificates
shall be as described under the heading "Method of Distribution" in the
Prospectus Supplement.
3. Delivery and Payment. The Underwritten Public Certificates shall
be delivered at the office, on the date and at the time specified in the
Prospectus Supplement, which place, date and time may be changed by agreement
between the Underwriters and CWABS (such date and time of delivery of and
payment for such Underwritten Public Certificates being hereinafter referred
to as the "Closing Date"). Delivery of the Underwritten Public Certificates
shall be made to each of the Underwriters as against their respective payment
of the purchase price therefor to or upon the order of CWABS in immediately
available federal funds. The Underwritten Public Certificates shall be
registered in such names and in such denominations as the respective
Underwriters may have requested or as required by book-entry registration not
less than two full business days prior to the Closing Date. CWABS agrees to
make the Underwritten Public Certificates available for inspection, checking
and packaging in New York, New York, on the business day prior to the Closing
Date.
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4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Underwritten Public Certificates for sale as set forth in
the Prospectus and that the Underwriters will not offer, sell or otherwise
distribute the Underwritten Public Certificates (except for the sale thereof
in exempt transactions) in any state in which the Underwritten Public
Certificates are not exempt from registration under "blue sky" or state
securities laws (except where the Underwritten Public Certificates will have
been qualified for offering and sale at the Underwriters' direction under such
"blue sky" or state securities laws).
5. Agreements. CWABS agrees with each Underwriter that:
(a) CWABS will cause the Prospectus to be filed with the Commission
pursuant to Rule 424 under the Act and, if indicated in the Prospectus,
within 15 days of the Closing Date, will file a report on Form 8-K
setting forth specific information concerning the Mortgage Loans, and
will promptly advise each Underwriter when the Prospectus has been so
filed, and, prior to the termination of the offering of the Public
Certificates, will also promptly advise each Underwriter (i) when any
amendment to the Registration Statement has become effective or any
revision of or supplement to the Prospectus has been so filed (unless
such amendment, revision or supplement does not relate to the
Certificates), (ii) of any request by the Commission for any amendment of
the Registration Statement or the Prospectus or for any additional
information (unless such request for additional information does not
relate to the Certificates), (iii) of any written notification received
by CWABS of the suspension of qualification of the Public Certificates
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or the institution or to the
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knowledge of CWABS, the threatening of any proceeding for that purpose.
CWABS will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal
thereof. Except as otherwise provided in Section 5(b) hereof, CWABS will
not file prior to the termination of such offering any amendment to the
Registration Statement or any revision of or supplement to the Prospectus
(other than any such amendment, revision or supplement which does not
relate to the Certificates) which shall be disapproved by the
Underwriters after reasonable notice and review of such filing.
(b) If, at any time when a prospectus relating to the Public
Certificates is required to be delivered under the Act (i) any event
occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein in
the light of the circumstances under which they were made not misleading,
or (ii) it shall be necessary to revise, amend or supplement the
Prospectus to comply with the Act or the rules and regulations of the
Commission thereunder, CWABS promptly will notify each Underwriter and
will, upon the request of any Underwriter, or may, after consultation
with each Underwriter, prepare and file with the Commission a revision,
amendment or supplement which will correct such statement or omission or
effect such compliance, and furnish without charge to each Underwriter as
many copies as such Underwriter may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance.
(c) CWABS will furnish to each Underwriter and counsel to the
Underwriters, without charge, conformed copies of the Registration
Statement (including exhibits
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thereto) and, so long as delivery of a prospectus relating to the
Public Certificates is required under the Act, as many copies of the
Prospectus and any revisions or amendments thereof or supplements thereto
as may be reasonably requested.
(d) CWABS will, as between itself and the Underwriters, pay all
expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing,
printing and reproducing the Registration Statement, the Prospectus, the
Pooling and Servicing Agreement and the Certificates, (ii) the cost of
delivering the Underwritten Public Certificates to the Underwriters,
insured to the Underwriters' reasonable satisfaction, (iii) the fees
charged by securities rating services for rating the Certificates, (iv)
the fees and expenses of the Trustee or the Co-Trustee, as applicable,
except for fees and expenses of Trustee's or the Co-Trustee's, as
applicable, counsel, which will be borne by the Trustee or the
Co-Trustee, as applicable, and (v) all other costs and expenses
incidental to the performance by CWABS of CWABS's obligations hereunder
which are not otherwise specifically provided for in this subsection. It
is understood that, except as provided in this paragraph (d) and in
Section 9 hereof, each Underwriter will pay all of its own expenses,
including the fees of any counsel to such Underwriter.
(e) So long as any Certificates are outstanding, upon request of any
Underwriter, CWABS will, or will cause the Master Servicer to, furnish to
such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the Master Servicer to the Trustee
or the Co-Trustee, as applicable, under the Pooling and Servicing
Agreement, (ii) the annual independent public accountants' servicing
report furnished to the Trustee or the Co-Trustee, as applicable,
pursuant to the
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Pooling and Servicing Agreement, (iii) each report of CWABS regarding the
Certificates filed with the Commission under the Exchange Act or mailed
to the holders of the Certificates and (iv) from time to time, such other
information concerning the Certificates which may be furnished by CWABS
or the Master Servicer without undue expense and without violation of
applicable law.
(f) CWABS will file a current report on Form 8-K for purposes of
filing any Computational Materials, Structural term sheets or Collateral
term sheets (as such terms are defined in the Indemnification Agreement)
furnished to CWABS by an Underwriter prior to the time of filing of the
Prospectus as provided in Section 5(a) hereof and will include therein
all Computational Materials, Structural term sheets or Collateral term
sheets.
(g) CWABS will timely file all reports with respect to the Trust
Fund required to be filed under the Exchange Act, as such requirements
may be modified by any No-Action relief granted to CWABS.
6. Conditions to the Obligations of Underwriters. The obligation of
each Underwriter to purchase the Underwritten Public Certificates to be
purchased by it as indicated in the Prospectus Supplement shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of CWABS contained herein as of the date hereof and as of the Closing
Date, to the accuracy of the statements of CWABS made in any officer's
certificate pursuant to the provisions hereof, to the performance in all
material respects by CWABS of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted and
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be pending or shall have been threatened, and the Prospectus shall have
been filed or transmitted for filing with the Commission not later than
required pursuant to the rules and regulations of the Commission.
(b) CWABS shall have furnished to the Underwriters a certificate,
dated the Closing Date, of CWABS, signed by a vice president of CWABS, to
the effect that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of CWABS herein are true
and correct in all material respects on and as of the Closing Date with the
same effect as if made on and as of the Closing Date, and CWABS has
complied with all agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge, have
been threatened as of the Closing Date; and
(iii) Nothing has come to the attention of such person that
would lead him to believe that the Prospectus (other than any
Computational Materials (as defined in the Indemnification Agreement)
incorporated therein by reference) at the date thereof contained or at
the Closing Date contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) CHL shall have furnished to the Underwriters a certificate,
dated the Closing Date, of CHL, signed by a vice president or an
assistant vice president of CHL,
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to the effect that (i) the signer of such certificate has carefully
examined the Prospectus and nothing has come to the attention of such
person that would lead him to believe that the Prospectus contains any
untrue statement of a material fact with respect to CHL or the Mortgage
Loans or omits to state any material fact with respect to CHL or the
Mortgage Loans necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and
(ii) CHL has complied with all agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date under this Agreement, the Insurance Agreements, the
Indemnification Agreement, and the Pooling and Servicing Agreement.
(d) CWABS shall have furnished to you an opinion, dated the Closing
Date, of Sidley Xxxxxx Xxxxx & Xxxx LLP, special counsel to CWABS, to the
effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and not withdrawn, no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration
Statement, the Prospectus and each amendment or supplement thereto, as of
their respective effective or issue dates (other than (a) the financial
and statistical information contained therein as to which such counsel
need express no opinion, (b) any description in the Prospectus of any
third party providing credit enhancement to the Certificates, as to each
of which such counsel expresses no opinions and (c) the Underwriter
Information), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder;
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(ii) To the best knowledge of such counsel, there are no
material contracts, indentures or other documents of a character required
to be described or referred to in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement other
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) Assuming that this Agreement, the Insurance Agreements,
the Indemnification Agreement, and the Pooling and Servicing Agreement
have each been duly authorized, executed and delivered by the parties
thereto, each constitutes a valid, legal and binding agreement of CWABS,
and of CHL in the case of the Pooling and Servicing Agreement, the
Insurance Agreements and the Indemnification Agreement enforceable
against CWABS or CHL, as applicable, in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and to general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law and subject to limitations of
public policy under applicable securities laws as to rights of indemnity
and contribution thereunder;
(iv) Assuming that the Certificates have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement and delivered and in the case of the
Underwritten Public Certificates paid for by the Underwriters as provided
in this Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement;
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(v) The Certificates and the Pooling and Servicing Agreement
conform in all material respects to the descriptions thereof contained in
the Prospectus;
(vi) The statements in the Prospectus and the Prospectus
Supplement, as the case may be, under the headings "Material Federal
Income Tax Consequences," "ERISA Considerations" and "Summary-Legal
Investment," to the extent that they constitute matters of New York or
federal law or legal conclusions with respect thereto, have been reviewed
by such counsel and are correct in all material respects;
(vii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund created by the Pooling and Servicing Agreement is not required
to be registered under the 1940 Act; and
(viii) Each REMIC described in the Pooling and Servicing
Agreement will qualify as a real estate mortgage investment conduit
within the meaning of Section 860D of the Internal Revenue Code of 1986,
as amended (the "Code"), assuming: (i) an election is made to treat the
assets of each REMIC as a real estate mortgage investment conduit, (ii)
compliance with the Pooling and Servicing Agreement and (iii) compliance
with changes in the law, including any amendments to the Code or
applicable Treasury regulations thereunder.
Such counsel shall also state that nothing has come to its attention
that would lead such counsel to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus, as of
the date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue
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statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need express no view as to (i) financial and statistical
information contained therein or (ii) any description in the Prospectus of any
third party providing credit enhancement to the Certificates.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may be qualified as an opinion only on the
laws of the State of New York and the federal law of the United States. To the
extent that such firm relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such firm that is delivered to
the Underwriters.
(e) CWABS shall have furnished to the Underwriters an opinion, dated
the Closing Date, of counsel to CWABS (who may be an employee of CWABS or
of an affiliate of CWABS), to the effect that:
(i) CWABS has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and
is duly qualified to do business in, and is in good standing as a foreign
corporation under the laws of, the State of California;
(ii) The Certificates have been duly authorized and executed
and, assuming authentication and delivery in the manner contemplated in
the Pooling and Servicing Agreement, are validly issued and outstanding,
and upon delivery by CWABS of the Certificates to be purchased by the
Underwriters, the Underwriters will acquire
19
such Certificates free and clear of any lien, pledge, encumbrance or
other security interest;
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by CWABS;
(iv) This Agreement, the Insurance Agreements, and the
Indemnification Agreement have each been duly authorized, executed and
delivered by CWABS;
(v) No consent, approval, authorization or order of any
California or federal court or governmental agency or body or to the best
of its knowledge of such counsel any order or decree of a California or
federal court is required for the consummation by CWABS of the
transactions contemplated by the terms of this Agreement, the
Indemnification Agreement, the Insurance Agreements or the Pooling and
Servicing Agreement except such as may be required under the "blue sky"
or state securities laws of any jurisdiction in connection with the
offering, sale or acquisition of the Certificates, any recordations of
the assignment of the Mortgage Loans to the Trustee or the Co-Trustee, as
applicable, (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) that have not yet been completed and
such other approvals as have been obtained;
(vi) The sale of the Certificates to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any of
the transactions contemplated by the terms of the Pooling and Servicing
Agreement, the Indemnification Agreement, the Insurance Agreements or
this Agreement do not conflict with or result in a breach or violation of
any material term or provision of, or constitute a default under,
20
the certificate of incorporation of CWABS, or any indenture or other
agreement or instrument to which CWABS is a party or by which it is
bound, or any California or federal law, statute, regulation, order or
decree applicable to CWABS or to the best of its knowledge an order of
any California or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over CWABS; and
(vii) There are no legal or governmental actions,
investigations or proceedings pending to which CWABS is a party, or, to
the best knowledge of such counsel, threatened against CWABS, (A)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement, the Indemnification Agreement, the Insurance Agreements or the
Certificates, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this
Agreement, the Pooling and Servicing Agreement, the Insurance Agreements
or the Indemnification Agreement, (C) which might materially and
adversely affect the performance by CWABS of its obligations under, or
the validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement, the Indemnification Agreement, the Insurance
Agreements or the Certificates or (D) seeking to affect adversely the
federal income tax attributes of the Public Certificates as described in
the Prospectus under the heading "Federal Income Tax Consequences." For
purposes of the foregoing, such counsel may state that it has not
regarded any legal or governmental actions, investigations or proceedings
to be "threatened" unless the potential litigant or governmental
authority has manifested to the legal department of CWABS a present
intention to initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the
21
parties to this Agreement, the Insurance Agreements, the Indemnification
Agreement and the Pooling and Servicing Agreement. Such opinion may assume the
due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than CWABS or its affiliates.
Such opinion may be qualified as an opinion only on the laws of the States of
Delaware and California and the federal law of the United States. To the
extent that such counsel relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered
to the Underwriters.
(f) CHL shall have furnished to the Underwriters an opinion, dated
the Closing Date, of counsel to CHL (who may be an employee of CHL), to
the effect that:
(i) CHL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of New York;
(ii) The Pooling and Servicing Agreement, the Insurance
Agreements and the Indemnification Agreement have each been duly
authorized, executed and delivered by CHL;
(iii) No consent, approval, authorization or order of any New
York or federal court or governmental agency or body is required for the
consummation by CHL of the transactions contemplated by the terms of the
Pooling and Servicing Agreement, the Insurance Agreements or the
Indemnification Agreement except any such as may be required under the
"blue sky" or state securities laws of any jurisdiction in connection
with the offering, sale or acquisition of the Certificates, any
recordations of the assignment of the Mortgage Loans evidenced by the
Certificates to the Trustee or the Co-Trustee, as applicable (to the
extent such recordations are required pursuant to the
22
Pooling and Servicing Agreement) that have not yet been completed and any
approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated
by the terms of the Pooling and Servicing Agreement, the Insurance
Agreements or the Indemnification Agreement do not conflict with or
result in a breach or violation of any material term or provision of, or
constitute a default under, the charter or bylaws of CHL, or, to the best
knowledge of such counsel, any indenture or other agreement or instrument
to which CHL is a party or by which it is bound, any New York or federal
law, statute, regulation, order or decree applicable to CHL or any order
of any New York or federal court, regulatory body, administrative agency
or governmental body having jurisdiction over CHL other than with respect
to the right of indemnity thereunder; and
(v) There are no legal or governmental actions, investigations
or proceedings pending to which CHL is a party, or, to the best knowledge
of such counsel, threatened against CHL, (A) asserting the invalidity of
the Pooling and Servicing Agreement, the Insurance Agreements or the
Indemnification Agreement or (B) which might materially and adversely
affect the performance by CHL of its obligations under, or the validity
or enforceability of, the Pooling and Servicing Agreement, the Insurance
Agreements or the Indemnification Agreement. For purposes of the
foregoing, such counsel may state that it has not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested to
the legal department of CHL a present intention to initiate such
proceedings.
23
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than CHL. Such opinion may be qualified as an opinion only on the laws of New
York and the federal law of the United States. To the extent that such counsel
relies upon the opinion of other counsel in rendering any portion of its
opinion, the opinion of such other counsel shall be attached to and delivered
with the opinion of such counsel that is delivered to the Underwriters.
(g) Each party providing credit enhancement to the Certificates
shall have furnished to the Underwriters an opinion, dated the Closing
Date, of its counsel, with respect to the Registration Statement, the
Prospectus, the Mortgage Insurance Policy and such other related matters,
in the form previously agreed to by such provider and the Underwriters.
(h) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Underwritten Public Certificates, the Registration
Statement and the Prospectus, and such other related matters as the
Underwriters may reasonably require.
(i) CWABS's independent accountants, Xxxxx Xxxxxxxx and Deloitte &
Touche LLP, shall each have furnished to the Underwriters a letter or
letters addressed to the Underwriters and dated as of or prior to the
date of first use of the Prospectus Supplement in the form and reflecting
the performance of the procedures previously agreed to by CWABS and the
Underwriters.
24
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or
affecting the business or properties of CWABS or any of its affiliates
which in your reasonable judgment materially impairs the investment
quality of the Underwritten Public Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Underwritten Public Certificates as contemplated by the
Prospectus.
(k) The Underwritten Public Certificates shall be rated not lower
than the required ratings set forth under the heading "Ratings" in the
Prospectus Supplement, such ratings shall not have been rescinded and no
public announcement shall have been made that any such required rating of
the Certificates has been placed under review (otherwise than for
possible upgrading).
(l) The Underwriters shall have received copies of any opinions of
counsel to CWABS supplied to the rating organizations relating to certain
matters with respect to the Underwritten Public Certificates. Any such
opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters addressed to the
Underwriters. (
(m) All Classes of Underwritten Public Certificates being publicly
offered by the Underwriters shall have been issued and paid for pursuant
to the terms of this Agreement.
(n) The Trustee and the Co-Trustee, if any, shall have furnished to
the Underwriters an opinion dated the Closing Date, of counsel to the
Trustee or the Co-Trustee, as applicable (who may be an employee of the
Trustee or the Co-Trustee, as applicable), in form and substance
satisfactory to the Underwriters and their counsel.
25
(o) CWABS shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may
reasonably have requested, and all proceedings in connection with the
transactions contemplated by this Agreement and all documents incident
hereto shall be in all material respects reasonably satisfactory in form
and substance to the Underwriters and their counsel.
(p) As of the Closing Date, each of the Pooling and Servicing
Agreement, the Insurance Agreements and the Indemnification Agreement
will have been duly authorized, executed and delivered by, and will
constitute a legal, valid and binding obligation of CWABS, the Master
Servicer and CHL, as applicable, enforceable against such parties in
accordance with their terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting
creditors' rights generally and as to enforceability, to general
principles of equity (regardless of which enforcement is sought in a
proceeding in equity or at law) and subject to limitations of public
policy under applicable securities laws as to rights of indemnity and
contribution thereunder.
(q) [Reserved]
(r) The Master Servicer shall have furnished to the Underwriters an
opinion, dated the applicable Closing Date, of counsel to the Master
Servicer (who may be an employee of the Master Servicer), to the effect
that:
(i) The Master Servicer has been duly organized and is validly
existing as a limited partnership in good standing under the laws of
Texas;
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Master Servicer;
26
(iii) No consent, approval, authorization or order of any
California or federal court or governmental agency or body is required
for the consummation by the Master Servicer of the transactions
contemplated by the terms of the Pooling and Servicing Agreement or the
Insurance Agreements except any such as may be required under the "blue
sky" or state securities laws of any jurisdiction in connection with the
offering, sale or acquisition of the Certificates, any recordations of
the assignment of the Mortgage Loans evidenced by the Certificates to the
Trustee (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) that have not yet been completed and any
approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated
by the terms of the Pooling and Servicing Agreement or the Insurance
Agreements do not conflict with or result in a breach or violation of any
material term or provision of, or constitute a default under, the
certificate of limited partnership or the partnership agreement of the
Master Servicer, or, to the best knowledge of such counsel, any indenture
or other agreement or instrument to which the Master Servicer is a party
or by which it is bound, any California or federal law, statute,
regulation order or decree applicable to the Master Servicer or any order
or decree of any California or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Master Servicer other than with respect to the right of indemnity
thereunder; and
(v) There are no legal or governmental actions, investigations
or proceedings pending to which the Master Servicer is a party, or, to
the best knowledge of such counsel, threatened against the Master
Servicer, (A) asserting the invalidity of the Pooling and Servicing
Agreement or the Insurance Agreements or (B) which might
27
materially and adversely affect the performance by the Master Servicer of
its obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement or the Insurance Agreements. For purposes of the
foregoing, such counsel may state that it has not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested to
the legal department of the Master Servicer a present intention to
initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the Insurance
Agreements and the Pooling and Servicing Agreement. Such opinion may assume
the due authorization, execution and delivery of the instruments and documents
referred to therein by the parties thereto other than CWABS or its affiliates.
Such opinion may be qualified as an opinion only on the laws of the States of
Delaware and California and the federal law of the United States. To the
extent that such counsel relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such counsel that is delivered
to the Underwriters.
(vi) The underwriters shall have received an opinion as to
certain matters regarding the seller(s) other than CHL in form and
substance reasonably suitable to the underwriters and their counsel.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, this Agreement and all obligations of an Underwriter hereunder with
respect to a particular offering may be canceled at, or at any
28
time prior to, the Closing Date by such Underwriter. Notice of
such cancellation shall be given to CWABS in writing, or by telephone or
telegraph confirmed in writing.
7. Termination. This Agreement shall be subject to termination in
the Underwriters' absolute discretion, by notice given to CWABS prior to
delivery of and payment for the Underwritten Public Certificates, if prior to
such time (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets is such as to make it, in the
Underwriters' judgment after consultation with CWABS, impracticable to market
the Underwritten Public Certificates on the terms specified in this Agreement.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
CWABS and its officers and of each Underwriter set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or CWABS, and will
survive delivery of and payment for the Underwritten Public Certificates. The
provisions of Section 5(d) and Section 9 hereof shall survive the termination
or cancellation of this Agreement.
9. Reimbursement of Underwriter Expenses. If for any reason, other
than default by any Underwriter in its obligation to purchase the Underwritten
Public Certificates or termination by any Underwriter pursuant to Section 7
hereof, the Underwritten Public Certificates are not delivered by or on behalf
of CWABS as provided herein, CWABS will reimburse each Underwriter for all
out-of-pocket expenses of such Underwriter, including reasonable fees and
disbursements of its counsel, reasonably incurred by such Underwriter in
29
making preparations for the purchase, sale and delivery of the Underwritten
Public Certificates, but CWABS shall then be under no further liability to any
Underwriter with respect to the Underwritten Public Certificates, except as
provided in Section 5(d) hereof.
10. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for any of the Underwritten Public
Certificates agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the aggregate principal amount of all the
Underwritten Public Certificates of the various Classes set forth opposite
their names in the Prospectus Supplement bears to the aggregate principal
amount of all of the Underwritten Public Certificates of the various Classes
set forth opposite the name of all the remaining Underwriters) the
Underwritten Public Certificates that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Underwritten Public Certificates
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of all of the Underwritten
Public Certificates set forth in the Prospectus Supplement, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Underwritten Public Certificates, and if
such nondefaulting Underwriters do not purchase all the Underwritten Public
Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter or CWABS. In the event of a default by any
Underwriter as set forth in this Section 10, the Closing Date shall be
postponed for such period, not exceeding seven days, as the nondefaulting
Underwriters shall determine in order that required changes in the
Registration Statement and the Prospectus or in
30
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any,
to CWABS and to any nondefaulting Underwriter for damages occasioned by its
defaulting hereunder.
11. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters
and CWABS, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Underwriters within the meaning of Section 15 of the
Act, and for the benefit of directors of CWABS, officers of CWABS who have
signed the Registration Statement and any person controlling CWABS within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 11, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
12. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
13. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof, other than the
Indemnification Agreement. 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.
31
14. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to an Underwriter, shall be delivered
to the address specified on the signature page hereof; or if sent to CWABS,
shall be delivered to 0000 Xxxx Xxxxxxx, X.X. XX-00, Xxxxxxxxx, Xxxxxxxxxx
00000, attention of Deputy General Counsel for Corporate Finance.
32
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding
agreement by and among CWABS and each Underwriter on March 11, 2004 relating
to Asset-Backed Certificates, Series 2004-2.
Very truly yours,
CWABS, INC.
By: /s/ Xxxxx Xxxxxxx
------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
The foregoing Agreement is
hereby confirmed and accepted.
COUNTRYWIDE SECURITIES CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Address: 0000 Xxxx Xxxxxxx, X.X. XX-00
Xxxxxxxxx, Xxxxxxxxxx 00000
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
Address: One Banc Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxxx Xxxxxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Senior Managing Director
Address: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
33
SCHEDULE A
Countrywide Securities Banc One Capital Bear, Xxxxxxx
Class Corporation Markets, Inc. & Co. Inc.
----- ---------------------- ---------------- --------------
Class 1-A....... $ 973,840,000 $ 0 $ 0
Class 2-A....... $ 465,535,000 $ 0 $ 0
Class 3-A-1..... $ 257,110,200 $ 14,283,900 $ 14,283,900
Class 3-A-2..... $ 200,000,000 $ 0 $ 0
Class 3-A-3..... $ 43,246,000 $ 0 $ 0
Class 3-A-4..... $ 101,363,400 $ 5,631,300 $ 5,631,300
Class M-1....... $ 136,620,000 $ 7,590,000 $ 7,590,000
Class M-2....... $ 45,540,000 $ 2,530,000 $ 2,530,000
Class M-3....... $ 39,847,500 $ 2,213,750 $ 2,213,750
Class M-4....... $ 28,462,500 $ 1,581,250 $ 1,581,250
Class M-5....... $ 39,847,500 $ 2,213,750 $ 2,213,750
Class M-6....... $ 34,155,000 $ 1,897,500 $ 1,897,500
Class M-7....... $ 28,462,500 $ 1,581,250 $ 1,581,250
Class B......... $ 22,770,000 $ 1,265,000 $ 1,265,000
Total.... $ 2,416,799,600 $ 40,787,700 $ 40,787,700
34
