EXHIBIT 1.2
CWABS 200_-__
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated ___________, 200_ (this "Agreement"), among CWABS, Inc.,
a Delaware corporation ("CWABS"), [CHL] (defined below) and the Broker-Dealers
(defined below).
WITNESSETH:
WHEREAS, CWABS and one or more of the Broker-Dealers are parties to the
Underwriting Agreement (defined below), providing for the sale by CWABS and
the purchase, severally and not jointly, by such Broker-Dealers of the Public
Certificates (defined below); and
WHEREAS, CWABS and one or more of the Broker-Dealers are parties to the
Purchase Agreement (defined below), providing for the sale by CWABS and the
purchase, severally and not jointly, of the Private Certificates (defined
below) other than the Retained Certificates; and
WHEREAS, as an inducement to the Broker-Dealers to enter into the
Underwriting Agreement and the Purchase Agreement, CWABS and the
Broker-Dealers wish to provide for indemnification and contribution on the
terms and conditions hereinafter set forth; and
WHEREAS, the purchase price to be paid by CWABS to the Sellers (defined
below) for the Mortgage Loans will be the proceeds of the sale by CWABS to the
Broker-Dealers of the Public Certificates and the Private Certificates other
than the Retained Certificates, and as an inducement to the Broker-Dealers to
enter into the Underwriting Agreement and the Purchase Agreement, [CHL] agrees
to perform certain obligations set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
1.1. Certain Defined Terms.
The following terms shall have the meanings set forth below, unless the
context clearly indicates otherwise:
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 CWABS relating to the offering from time to
time of one or more series of asset backed certificates.
Bloomberg Submission: The material submitted to Bloomberg for ultimate
access by investors.
Broker-Dealer: Each of the signatories to this Agreement other than CWABS
or [CHL].
Certificates: Asset-Backed Certificates, Series 200_-__ of CWABS.
[CHL]: [Countrywide Home Loans, Inc.], a [New York] corporation and its
successors in interest.
Closing Date: On or about __________, 200_.
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.
CWABS: CWABS, Inc., a Delaware corporation and its successors in
interest.
CWABS Memorandum Information: All information contained or incorporated
in the Memorandum other than the Purchaser Information.
CWABS Prospectus Information: All information contained or incorporated
in the Prospectus other than the related Senior Underwriter Information.
CWABS Registration Information: All information contained or incorporated
in the Registration Statement other than the related Senior Underwriter
Information.
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Disclosure Package: The Issuer Free Writing Prospectus 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 CWABS with respect to the Mortgage Loans and including any ABS ICM or
Preliminary 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 CWABS
furnished by CWABS to the Underwriters in connection with the Public
Certificates.
Offered Certificates: The Public Certificates and the Private
Certificates.
Pool Error: Any error or omission in the Seller Mortgage Loan
Information.
Preliminary Term Sheet: A Free Writing Prospectus that describes the
Certificates 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.
Private Certificates: The Class [M-6], Class [M-7], Class [M-_], Class
[B], Class [P] and Class [C] Certificates.
Prospectus: The Base Prospectus together with the Prospectus Supplement.
Prospectus Supplement: The Prospectus Supplement dated the date hereof,
as the same may be amended or supplemented, of CWABS relating to the offering
of the Public Certificates.
Public Certificates: The Senior Certificates.
Purchase Agreement: The Purchase Agreement, if any, dated the Closing
Date, between CWABS and the Purchaser providing for the purchase and sale of
the Private Certificates, other than the Retained Certificates that are
Private Certificates.
Purchase Spread: The excess, if any, of (i) the purchase prices paid by
investors to the Purchaser for the Private Certificates other than the
Retained Certificates over (ii) the purchase price paid by the Purchaser to
CWABS for the Private Certificates other than the Retained Certificates
pursuant to the Purchase Agreement.
Purchaser: The Broker-Dealer that is purchasing the Private Certificates
other than the Retained Certificates pursuant to the Purchase Agreement.
Purchaser Information: The only written information furnished by or on
behalf of the Purchaser to CWABS specifically for use in connection with the
preparation of the
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Memorandum, such information being the information relating to the Purchaser
set forth in the Memorandum under the caption "Method of Placement."
Registration Statement: As defined in the Underwriting Agreement.
Retained Certificates: The Class A-R, Class [P] and Class [C]
Certificates.
Rules and Regulations: The rules and regulations of the Commission
promulgated under the Act.
Sellers: [CHL] and [one or more special purpose entities established by
[Countrywide Financial Corporation] or one of its subsidiaries].
Seller Mortgage Loan Information: Information relating to the Mortgage
Loans furnished by or on behalf of any Seller to any Broker-Dealer.
Senior Certificates: The Class [1-AF-1], Class [1-AF-2], Class [1-AF-_],
Class [2-AV-1], Class [2-AV-2], Class [2-AV-_], Class [M-1], Class [M-2],
Class [M-3], Class [M-4], Class [M-5] and Class A-R Certificates.
Senior Spread: The excess, if any, of (i) the purchase prices paid by
investors to the Senior Underwriters for the Senior Certificates over (ii) the
purchase price paid by the Senior Underwriter to CWABS for the Senior
Certificates pursuant to the Underwriting Agreement.
Senior Structure: Information contained in a Preliminary Term Sheet or
ABS ICM specifying paydown rules for the classes and characteristics of the
Senior Certificates.
Senior Underwriters or Underwriters: Each Broker-Dealer that is
purchasing the Senior Certificates pursuant to the Underwriting Agreement.
Senior Underwriter Information: As to any Senior Underwriter: (i) the
only written information furnished by or on behalf of such Senior Underwriters
to CWABS specifically for use in connection with the preparation of the
Registration Statement or the Prospectus, such information being the
information relating to such Senior Underwriter set forth in the Prospectus
Supplement in the last paragraph of the cover page thereof and under the
caption "Method of Distribution" therein and (ii) any Computational Materials
prepared by such Senior Underwriter.
Underwriting Agreement: The Underwriting Agreement, dated the date
hereof, among CWABS and each Senior Underwriter providing for the purchase and
sale of the Senior Certificates.
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 or the Purchase Agreement.
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1.3. Interpretive Principle.
A Broker-Dealer may be acting in more than one capacity. References herein to
a Broker-Dealer acting in a particular capacity shall refer to such
Broker-Dealer in such capacity only and shall not refer to other capacities,
if any, being served by such Broker-Dealer.
ARTICLE II
Representations and Warranties
2.1. Mutual Representation.
Each party hereto represents to the other parties hereto that:
(a) the execution, performance and delivery of this Agreement has
been duly authorized by such party;
(b) this Agreement has been duly executed and delivered by such
party; and
(c) this Agreement constitutes the legal and valid obligations of
such party.
2.2. Other Representations.
(a) CWABS has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement; and
(b) [CHL] has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement.
(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 Certificates 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 Certificates of that Class to the public in
that Relevant Member State prior to the publication of a prospectus in
relation to the Certificates 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 Certificates 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;
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(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
Certificates of that Class to the public" in relation to any Class of
Certificates, 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 Certificates
to be offered so as to enable an investor to decide to purchase or subscribe
the Certificates of that Class, as the same may be varied in that Member State
by any measure implementing the Prospectus Directive in that 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 CWABS 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 CWABS 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 CWABS or its counsel reasonably
objects, and (z) shall convey such Traditional Term Sheet in final
form to counsel for CWABS and to each potential investor in the
class or classes of Public Certificates 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
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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 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.
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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.
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 Public Certificate,
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
CWABS, (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(a)(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 CWABS
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) CWABS represents to and agrees with each Underwriter as follows:
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1. CWABS shall file any ABS ICM or Preliminary Term
Sheets delivered to its counsel as provided in 2.3(a)(iii)
above as and when required by the Rules and Regulations.
2. CWABS 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.
ARTICLE III
Indemnification
3.1. Indemnification.
(a) CWABS 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 CWABS Memorandum Information, the CWABS
Prospectus Information, the CWABS 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 CWABS
Registration Information, the CWABS Prospectus Information or in any
revision or amendment thereof or supplement thereto a material fact
required to be stated therein or the omission or alleged omission to
state a material fact in the CWABS Memorandum Information, the CWABS
Prospectus Information, the CWABS 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 CWABS 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 made in reliance upon and in conformity with the
Senior Underwriter Information, the Purchaser Information or the
Collateral Strats, as applicable. This indemnity agreement will be in
addition to any liability which CWABS may otherwise have.
(b) Each Broker-Dealer severally agrees to indemnify and hold
harmless CWABS, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWABS
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnities from CWABS 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
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in reliance upon and in conformity with the Senior Underwriter
Information and the Purchaser Information. This indemnity agreement will
be in addition to any liability which any Broker-Dealer may otherwise
have.
(c) Each Underwriter severally agrees to indemnify and hold harmless
CWABS, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWABS
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 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 CWABS and
its counsel at least [one] business day prior to the anticipated first
use and neither CWABS 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
Senior Underwriters or the
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Purchaser, as applicable, in the case of paragraph (a) of this Section
3.1, representing the related indemnified parties under such paragraph
(a) who are parties to such action), (ii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall,
without the consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
3.2. Contribution.
(a) If the indemnification provided for in Section 3.1(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 CWABS on the one hand and the
Broker-Dealers on the other from the offering of the Offered Certificates
or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of CWABS 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 CWABS on the one hand
and the Broker-Dealers on the other shall be in such proportion so that
the Broker-Dealers are responsible for an amount equal to the Senior
Spread and the Purchase Spread and CWABS is responsible for the balance.
The relative benefits received by the Senior Underwriters and the
Purchaser shall be the Senior Spread, in the case of the Senior
Underwriters and the Purchase Spread, in the case of the Purchaser. 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 CWABS 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
Senior Spread in the case of the Senior Underwriter, or the Purchase
Spread, in the case of the Purchaser, 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.
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(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 CWABS 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
CWABS on the one hand and such Underwriter on the other from the offering
of the Public Certificates or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of CWABS 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 Senior Spread over the amount of
any 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 CWABS under this Article III shall be in addition to any
liability which CWABS 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 CWABS who signed the Registration Statement or any amendment
thereof, to its directors, and to each person who controls CWABS within the
meaning of either the Act or the Exchange Act.
3.4. [CHL] Obligation.
[CHL] agrees with each Broker-Dealer, for the sole and exclusive benefit of
such Broker-Dealer and each person who controls a Broker-Dealer within the
meaning of either the Act or the Exchange Act and not for the benefit of any
assignee thereof or any other person or persons dealing with such
Broker-Dealer, to indemnify and hold harmless each Broker-Dealer and each
person who controls a Broker-Dealer within the meaning of either the Act or
the Exchange Act against any failure by CWABS to perform any of its
obligations under this Agreement. [CHL] agrees that there are no conditions
precedent to the obligations of [CHL] hereunder other than written demand to
CWABS to perform its obligations under this Agreement.
ARTICLE IV
Expenses
4.1. Other Expenses.
Any costs and expenses incurred in connection with the qualification of any of
the Offered Certificates under the "blue sky" or securities laws of any state
shall be paid by the Broker-
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Dealer requesting such action. Unless otherwise agreed to among the
Broker-Dealers, any advertising or "tombstone" expenses shall be paid by the
Broker-Dealer incurring the same. Each Broker-Dealer shall be responsible for
all other costs and expenses incurred by it in connection with the purchase
and sale of the Offered Certificates.
ARTICLE V
General
5.1. Survival.
This Agreement and the obligations of the parties hereunder shall survive the
purchase and sale of the Offered Certificates and any termination of the
Underwriting Agreement and/or the Purchase Agreement.
5.2. Successors.
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Article III hereof and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
5.3. Applicable Law.
This Agreement will be governed by and construed in accordance with the laws
of the State of New York, disregarding principles of conflict of laws.
5.4. Miscellaneous.
Neither this Agreement nor any term hereof may be changed, waived, discharged
or terminated except by a writing signed by the party against whom enforcement
of such change, waiver, discharge or termination is sought. This Agreement may
be signed in any number of counterparts, each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.
5.5. Notices.
All communications hereunder shall be in writing and effective only on receipt
and, if sent to a Broker-Dealer, shall be delivered to the address specified
on the signature page hereof; or if sent to CWABS, shall be delivered to [4500
Park Granada, M.S. 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.
CWABS, INC.
By: _____________________________
Name:
Title:
Address: [4500 Park Granada, M.S. CH-143
Calabasas, California 91302]
[COUNTRYWIDE HOME LOANS, INC.]
By: _____________________________
Name:
Title:
Address: [4500 Park Granada, M.S. XX-000
Xxxxxxxxx, Xxxxxxxxxx 00000]
_______________________________________
____________________________
By:
Name:
Title:
Address:
_______________________________________
By: _____________________________
Name:
Title:
Address:
