EXHIBIT 1.1(a)
CWHEQ, INC.
Revolving Home Equity Loan Asset Backed Notes, Series 200_-_
UNDERWRITING AGREEMENT
Dated the date specified on
the signature page hereof
The Firm or Firms
of Underwriters named
on the signature page hereof
and in any Terms Agreement hereto
Ladies and Gentlemen:
CWHEQ, Inc., a Delaware corporation ("CWHEQ"), proposes to cause
to be issued and to sell, severally and not jointly, to you, as underwriter,
the principal amount of Asset Backed Notes of the series specified on the
signature page hereof and described in Section 2 hereof (the "Notes") having
the characteristics set forth in the Prospectus Supplement (as defined below).
The Notes will be issued by CWHEQ Revolving Home Equity Loan Trust, Series
200_-_ (the "issuing entity"). The issuing entity is a Delaware statutory
trust formed pursuant to the Trust Agreement, dated _______, 200_ (the "Trust
Agreement") between CWHEQ and Wilmington Trust Company, as owner trustee (the
"Owner Trustee"). The Notes will be issued pursuant to an Indenture, dated as
of _______, 200_ (the "Indenture"), between the issuing entity and JPMorgan
Chase Bank, N.A., as indenture trustee (the "Indenture Trustee"), and will be
secured by the pledge of a pool of mortgage loans secured by first or second
liens on one- to four-family residential properties (the "Mortgage Loans").
The Mortgage Loans will be sold by Countrywide Home Loans, Inc.
("Countrywide"), as sponsor (in such capacity, the "Sponsor") to CWHEQ
pursuant to a purchase agreement, dated as of _______, 200_ (the "MLPA"), and
by CWHEQ to the issuing entity pursuant to the Sale and Servicing Agreement,
dated as of
_______, 200_ (the "SSA"), among CWHEQ, the issuing entity, Countrywide, as
master servicer (in such capacity, the "Master Servicer"), and the Indenture
Trustee. 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 Supplement,
the precise aggregate principal balance within such range to be determined by
CWHEQ in its sole discretion.
This Agreement (as defined below), the Indemnification and
Contribution Agreement, the Trust Agreement, the Custodial Agreement, the
MLPA, the SSA, the Indenture and the Insurance Agreement are sometimes
referred to herein collectively as the "Transaction Documents." The Notes 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 Indenture or
the SSA.
The Notes will have the benefit of a financial guaranty insurance
policy (the "Policy") issued by [LOAN INSURER] (the "Loan Insurer") pursuant
to the Insurance Agreement, dated as of _______, 200_ (the "Insurance
Agreement"), among CWHEQ, the Sponsor, the Trust, the Indenture Trustee and
the Loan Insurer.
Whenever CWHEQ determines to make an offering of the Notes (each,
an "Offering") pursuant to this Underwriting Agreement through you, it will
enter into an agreement (the "Terms Agreement," and collectively with this
Underwriting Agreement, this "Agreement") providing for the sale of a
specified amount of Notes to, and the purchase and public offering thereof by,
you and such other underwriters, if any, as have entered into such
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Terms Agreement (the underwriters designated in any such Terms Agreement
referred to herein as "Underwriters," which term shall include you and each
Underwriter specified in the related Terms Agreement whether acting alone in
the sale of any Notes or as a member of an underwriting syndicate). Each such
Offering which CWHEQ elects to make pursuant to this Agreement shall be
governed by this Agreement, and this Agreement shall inure to the benefit of
and be binding upon each Underwriter with respect to such Offering. Each Terms
Agreement, which shall be substantially in the form of Exhibit A hereto, shall
specify, among other things, the principal balance of the Notes to be
purchased in the Offering (the "Offered Notes"), each subject to any stated
variance, the names of the Underwriters participating in such Offering
(subject to substitution as provided in Section 10 hereof) and the price or
prices at which such Offered Notes are to be purchased by the Underwriters
from CWHEQ.
1. Representations and Warranties. CWHEQ represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-[_______]),
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 date
of each Contract of Sale (as defined in the indemnification agreement,
dated the date hereof (the "Indemnification Agreement") among CWHEQ, CHL
and the other parties named therein) and as of each Closing Date (as
defined herein), no stop order suspending the effectiveness of such
registration statement has been issued and no proceedings for that
purpose have been initiated or, to CWHEQ's knowledge, threatened by the
Commission. The prospectus in the form in which it will be used in
connection with the offering of the Notes (the "Base Prospectus")
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is proposed to be supplemented by a prospectus supplement dated the date
hereof relating to the Notes and, if so specified in the related Terms
Agreement, as further supplemented by a supplement to the prospectus
supplement 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, together with any related supplements, if applicable, as
filed with the Commission, is herein 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 Notes,
including documents incorporated therein as of the time of such filing
and as supplemented by the Prospectus Supplement, together with any
related supplements, if applicable, is hereinafter referred to as the
"Prospectus.") For purposes of this Agreement, the term "Base
Prospectus" shall mean the Prospectus, in the form in which it was filed
with the Commission and declared effective on [February ], 2006. 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
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the issue date of any preliminary prospectus 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 Base Prospectus, as of the
time the Registration Statement became effective did, and the
Registration Statement and the Prospectus, as of the date of the related
Prospectus Supplement and the Registration Statement as of the date of
each Contract of Sale will, conform, and the Registration Statement and
the Prospectus as revised, amended or supplemented prior to the
termination of the Offering of the related Offered Notes, as of their
respective effective or issue dates and the Registration Statement as of
the date of each Contract of Sale, 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 related Prospectus as
revised, amended or supplemented as of the applicable 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 applicable Closing Date. The Registration Statement,
at the time it became effective and as of the date of each Contract of
Sale, 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 related Prospectus as of
the date of the applicable Prospectus Supplement, and the Prospectus as
revised, amended or supplemented prior to the applicable Closing Date,
as of such Closing Date, will not include any untrue statement of a
material fact and will not omit to state a material fact necessary to
make the
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statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that CWHEQ makes no
representations, warranties or agreements as to (i) the Underwriter
Information contained in or omitted from the related Prospectus or any
revision or amendment thereof or supplement thereto, such Underwriter
Information being defined in the Indemnification Agreement, and (ii) the
information contained in the Prospectus Supplement under the headings
"The Loan Insurer" and "Description of the Notes--The Policy."
(c) The issuing entity Free Writing Prospectus (as defined in the
Indemnification Agreement) as of its date (the "Start Date") and as of
each day through the Closing Date, constitutes and will constitute an
"issuing entity free writing prospectus" as defined in Rule 433 of the
Act and does not and will not as of any such time conflict with the
information in the Registration Statement or the Prospectus. The issuing
entity Free Writing Prospectus has been filed with the Commission as
required by Rule 433. The issuing entity Free Writing Prospectus and the
Base Prospectus (collectively, the "Disclosure Package") as of the Start
Date and as of each day through the Closing Date does not and will not
include an untrue statement of a material fact and does not and will not
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(d) The Seller Mortgage Loan Information (as defined in the
Indemnification Agreement) as of the date it is forwarded to an
Underwriter, is accurate in all material respects.
(e) The Notes will conform in all material respects to the
description thereof contained in the Disclosure Package and the
Prospectus, and each of the Notes, when
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validly authenticated, issued and delivered in accordance with the
Indenture, will be duly and validly issued and outstanding, will
constitute the legal, valid and binding obligations of the issuing
entity, enforceable in accordance with their terms, subject, as to
enforceability, to bankruptcy, insolvency and similar laws affecting the
rights of creditors generally and to general principles of equity, and
will be entitled to the benefits and security afforded by the Indenture.
(f) Each of this Agreement and the Indemnification Agreement has
been duly authorized, executed and delivered by CWHEQ. As of the Closing
Date, the Indenture and each Transaction Document to which CWHEQ is a
party will have been duly authorized, executed and delivered by CWHEQ
and will conform in all material respects to the descriptions thereof
contained in the Disclosure Package and the Prospectus and, assuming the
valid execution and delivery thereof by the other parties thereto, this
Agreement, the Indemnification Agreement and each such Transaction
Document will constitute a legal, valid and binding agreement of CWHEQ
enforceable in accordance with its terms, except as the same may 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. On the
Closing Date, the Trust Agreement will be effective to establish the
issuing entity as a valid statutory trust under the laws of the State of
Delaware.
(g) CWHEQ 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
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Disclosure Package and the Prospectus and to enter into and perform its
obligations under the Indemnification Agreement and the applicable
Transaction Documents.
(h) Neither the issuance or delivery of the Notes, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Indemnification Agreement or the
applicable Transaction Documents, will conflict with or result in the
breach of any material term or provision of the certificate of
incorporation or bylaws of CWHEQ, and CWHEQ 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 CWHEQ is a party or by which it or its
properties are bound, or (ii) any law, decree, order, rule or regulation
applicable to CWHEQ of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over CWHEQ, or its properties, the default in or the
breach or violation of which would have a material adverse effect on
CWHEQ or the Notes or the ability of CWHEQ to perform its obligations
under the Indemnification Agreement or the applicable Transaction
Documents; and neither the delivery of the Notes, nor the consummation
of any other of the transactions contemplated herein, nor the compliance
with the provisions of the Indemnification Agreement or the applicable
Transaction Documents will result in such a breach, violation or default
which would have such a material adverse effect.
(i) 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
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the consummation by CWHEQ of the transactions contemplated by the
Indemnification Agreement or the applicable Transaction Documents (other
than as required under "blue sky" or state securities laws, as to which
no representations and warranties are made by CWHEQ), except such as
have been, or will have been prior to the Closing Date or Subsequent
Transfer Date, as applicable, obtained under the Act, and such
recordations of the assignment of the Mortgage Loans to the Indenture
Trustee (to the extent such recordations are required pursuant to the
Indenture) that have not yet been completed.
(j) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which CWHEQ or any
of its affiliates is a party, or to the best of CWHEQ's knowledge
threatened against CWHEQ 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, regulatory situation or business prospects of CWHEQ or could
reasonably interfere with or materially and adversely affect the
consummation of the transactions contemplated in the Indemnification
Agreement or the Transaction Documents.
(k) At the time of execution and delivery of the SSA, (1) CWHEQ
will own the Mortgage Loans being transferred to the issuing entity
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 Indenture, and will not
have assigned to any person other than the issuing entity any of its
right, title or interest in the Mortgage Loans, (2) CWHEQ will have the
power and authority to transfer the Mortgage Loans to the issuing entity
and to transfer the Notes to the Underwriter, (3) upon execution and
delivery to the Owner Trustee of the Trust Agreement, and delivery
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of the Transferor Certificates and the Notes to CWHEQ, the issuing
entity will own the Mortgage Loans free of Liens, other than Liens
permitted by the Indenture or granted by the Underwriter, and (4) upon
payment and delivery of the Notes to the Underwriter, the Underwriter
will acquire ownership of the Notes, free of Liens, other than Liens
permitted by the Indenture.
(l) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Indemnification
Agreement, the Transaction Documents and the Notes have been or will be
paid by CWHEQ at or prior to the Closing Date, except for fees for
recording assignments of the Mortgage Loans to the Indenture Trustee
pursuant to the Indenture that have not yet been completed, which fees
will be paid by or on behalf of CWHEQ in accordance with the Indenture.
(m) 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.
(n) CWHEQ is not doing business with Cuba.
(o) CWHEQ 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 CWHEQ or which might
materially and adversely affect the properties or assets thereof.
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(p) Neither CWHEQ nor the issuing entity will be subject to
registration as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(q) CWHEQ 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 CWHEQ has
received no notice of proceedings relating to the revocation or
modification 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 CWHEQ.
(r) As of the earliest time after filing of the Registration
Statement that CWHEQ or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Act) of the Notes,
CWHEQ was not and will not be an "ineligible issuing entity" as defined
in Rule 405 under the Act.
(s) CWHEQ represents and agrees that, other than the Disclosure
Package and the Final Free Writing Prospectus, it has not made and will
not make any offer relating to the Notes that would constitute a "free
writing prospectus" as defined in Rule 405 under the Act;
(t) CWHEQ has complied and will comply with the requirements of
Rule 433 under the Act applicable to the issuing entity Free Writing
Prospectus, including timely filing with the Commission or retention
where required and legending.
(u) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
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2. Purchase and Sale. Subject to the execution of the Terms
Agreement for a particular Offering and subject to the terms and conditions
and in reliance upon the representations and warranties set forth in this
Agreement and such Terms Agreement, CWHEQ agrees to sell, and each Underwriter
agrees, severally and not jointly, to purchase from CWHEQ, the respective
initial balance of the Offered Notes to be purchased by such Underwriter as
specified in the related Terms Agreement. The purchase price at which each
Underwriter will purchase the Offered Notes shall be the price shown in the
applicable Terms Agreement.
The parties hereto agree that settlement for all securities sold
pursuant to this Agreement shall take place on the terms set forth herein and
not as set forth in Rule 15c6-1(a) under the Exchange Act.
3. Delivery and Payment. The Offered Notes shall be delivered at
the offices of Sidley Austin LLP, New York, New York, at 10:00 a.m. New York
City time, on the date specified in the applicable Prospectus Supplement,
which place, date and time may be changed by agreement between the
Underwriters and CWHEQ (such date and time of delivery of and payment for such
Offered Notes being referred to herein as the applicable "Closing Date").
Delivery of the Offered Notes shall be made to each of the related
Underwriters as against their respective payment of the purchase price
therefor to or upon the order of CWHEQ in immediately available federal funds.
The Offered Notes 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.
4. Offering by Underwriters. (a) It is understood that the
Underwriters propose to offer the Offered Notes for sale as set forth in the
related Prospectus and that the Underwriters will not offer, sell or otherwise
distribute the Offered Notes (except for the sale thereof in
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exempt transactions) in any state in which the Offered Notes are not exempt
from registration under "blue sky" or state securities laws (except where the
Offered Notes will have been qualified for offering and sale at the
Underwriters' direction under such "blue sky" or state securities laws).
(b) Each Underwriter agrees that it shall not enter into any
Contract of Sale with any investor with respect to any class of Notes
with a minimum denomination of $1,000 until the Base Prospectus and
Prospectus Supplement have been delivered to such investor.
(c) In the event that an Underwriter used a "road show" (as
defined in Rule 433(h)(4) under the Act) in connection with the offering
of the Notes, the Underwriter agrees that all information in such road
show shall be provided orally only and not as a "written communication"
(as defined in Rule 405 under the Act). Each Underwriter agrees that any
slideshow used in connection with a road show (i) shall only be provided
as part of the road show and not separately, (ii) if handed out at any
meeting as a hard copy, shall be retrieved prior to the end of the
meeting and (iii) will otherwise be used only in a manner that does not
cause the slideshow to be treated as a "free writing prospectus" (as
defined in Rule 405 under the Act).
(d) If any "written communication" (as defined in Rule 405 under
the Act) in connection with the offering of the Notes contains an untrue
statement of material fact or omits to state a material fact necessary
to make the statements, in light of the circumstances under which they
were made, not misleading at the time that a Contract of Sale was
entered into, when taken together with all information that was conveyed
to any
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person with whom a Contract of Sale was entered into, then the
applicable Underwriter shall provide any such person with the following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the existing
Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that is necessary
to correct the misstatements or omissions in the information given at
the time of the original Contract; and
(iv) A meaningful ability to elect to terminate or not terminate
the prior Contract of Sale and to elect to enter into or not enter into
a new Contract of Sale.
5. Agreements. CWHEQ agrees with each Underwriter that:
(a) CWHEQ will cause each Prospectus to be filed with the
Commission pursuant to Rule 424 under the Act and, if necessary, within
15 days of _______, 200_, will file a report on Form 8-K setting forth
specific information concerning the Mortgage Loans, and will promptly
advise each Underwriter when the applicable Prospectus has been so
filed, and, prior to the termination of the related Offering, 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 Notes), (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 Notes),
(iii) of any written notification received by CWHEQ of the suspension of
qualification of the Notes for sale in any jurisdiction or the
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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
knowledge of CWHEQ, the threatening of any proceeding for that purpose.
CWHEQ 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, CWHEQ 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 Notes) which shall be disapproved by the
Underwriters after reasonable notice and review of such filing.
(b) If, at any time when a statutory prospectus relating to the
Notes 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 related Prospectus
to comply with the Act or the rules and regulations of the Commission
thereunder, CWHEQ 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.
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(c) If, at any time after the Start Date and prior to the Closing
Date any event occurs as a result of which the Disclosure Package 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 light of the circumstances under which they were
made, not misleading, or would conflict with the information in the
Registration Statement, CWHEQ 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 (as may be
required under the Rules and Regulations) a revision, amendment or
supplement which will correct such conflict, statement or omission, and
furnish without charge to each Underwriter as many copies as such
Underwriter may from time to time reasonably request of such revision,
amendment or supplement.
(d) CWHEQ will cause to be delivered to each Underwriter and
counsel for the Underwriters an agreed upon procedures letter from KPMG
LLP and/or Deloitte & Touche LLP:
(i) as of the Start Date with respect to the issuing entity Free
Writing Prospectus; and
(ii) with respect to the Prospectus as provided in Section 6(i).
(e) CWHEQ will furnish to each Underwriter and counsel to the
Underwriters, without charge, conformed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus relating to the Notes is required under the Act, as many
copies of the related Prospectus and any revisions or amendments thereof
or supplements thereto as may be reasonably requested.
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(f) CWHEQ 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 Disclosure
Package, each Prospectus, the Transaction Documents and the Notes, (ii)
the cost of delivering the Offered Notes to the Underwriters, insured to
the Underwriters' reasonable satisfaction, (iii) the fees charged by
securities rating services, if any, for rating the Notes, (iv) the fees
and expenses of the Owner Trustee and the Indenture Trustee except for
fees and expenses of Indenture Trustee's counsel which will be borne by
the Indenture Trustee and (v) all other costs and expenses incidental to
the performance by CWHEQ of CWHEQ's obligations hereunder which are not
otherwise specifically provided for in this subsection. It is understood
that, except as provided in this paragraph (f) and in Section 9 hereof,
each Underwriter will pay all of its own expenses, including the fees of
any counsel to such Underwriter.
(g) So long as any Notes are outstanding, upon request of any
Underwriter, CWHEQ 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
Indenture Trustee under the SSA, (ii) the annual independent public
accountants' servicing report furnished to the Indenture Trustee
pursuant to the SSA, (iii) each report of CWHEQ regarding the Notes
filed with the Commission under the Exchange Act or mailed to the
holders of the Notes and (iv) from time to time, such other information
concerning the Notes which may be furnished by CWHEQ or the Master
Servicer without undue expense and without violation of applicable law.
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(h) CWHEQ will file ABS ICM of Preliminary Term Sheets (as such
terms are defined in the Indemnification Agreement) furnished to CWHEQ
by an Underwriter if required by the Act prior to the time of filing of
the related Prospectus as provided in the Indemnification Agreement.
(i) If by the third anniversary (the "Renewal Deadline") of the
initial effective date of the Registration Statement, any of the Notes
remain unsold by the Underwriters and the Underwriters have so notified
CWHEQ in writing at least 90 days prior to the Renewal Deadline, CWHEQ
will file, if it has not already done so and is eligible to do so, a new
shelf registration statement relating to the Notes, in a form
satisfactory to the Underwriters and will use its best efforts to cause
such registration statement to be declared effective within 180 days
after the Renewal Deadline. CWHEQ will take all other action necessary
or appropriate to permit the public offering and sale of the Notes to
continue as contemplated in the expired registration statement relating
to the Notes. References herein to the Registration Statement shall
include such new shelf registration statement.
(j) CWHEQ will timely file all reports with respect to the issuing
entity required to be filed under the Exchange Act.
(k) CWHEQ shall cause any provider of credit enhancement for the
Notes to cause their independent auditors to provide a consent to the
incorporation of the auditors' report on the financial statements of
such provider for filing with the Commission as required by its rules
and regulations.
6. Conditions to the Obligations of Underwriters. The obligation
of each Underwriter to purchase the Offered Notes to be purchased by it shall
be subject to the accuracy
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in all material respects of the representations and warranties on the part of
CWHEQ contained herein as of the date hereof and as of the applicable Closing
Date, to the accuracy of the statements of CWHEQ made in any officer's
certificate pursuant to the provisions hereof, to the performance in all
material respects by CWHEQ 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 be pending or shall have been threatened,
and the related 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) CWHEQ shall have furnished to the Underwriters a certificate,
dated the applicable Closing Date, of CWHEQ, signed by a vice president
of CWHEQ, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the related Prospectus
and this Agreement and that:
(i) The representations and warranties of CWHEQ herein are true
and correct in all material respects on and as of such Closing Date with
the same effect as if made on and as of such Closing Date, and CWHEQ 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 such Closing Date; and
(iii) Nothing has come to the attention of such person that would
lead him to believe that the related Prospectus (other than any
Computational Materials (as defined in
-19-
the Indemnification Agreement) incorporated therein by reference) at the
date thereof contained and at the date hereof 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) The Sponsor shall have furnished to the Underwriters a
certificate, dated the applicable Closing Date, of the Sponsor, signed
by a vice president or an assistant vice president of the Sponsor, to
the effect that (i) the signer of such certificate has carefully
examined the related Prospectus and nothing has come to the attention of
such person that would lead him to believe that such Prospectus contains
any untrue statement of a material fact with respect to the Sponsor or
the Mortgage Loans or omits to state any material fact with respect to
the Sponsor 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) the Sponsor 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 under this Agreement, the
Indemnification Agreement, and the Transaction Documents.
(d) CWHEQ shall have furnished to you an opinion, dated the
applicable Closing Date, of Sidley Austin LLP, special counsel to CWHEQ,
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 related Prospectus and each amendment or supplement
thereto, as of their respective initial effective or issue dates other
than the financial and
-20-
statistical information contained therein, complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations thereunder;
(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 such
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 the Indemnification Agreement and each
Transaction Document to which CWHEQ, the Master Servicer or the Sponsor
is a party have each been duly authorized, executed and delivered by the
parties thereto, each constitutes a valid, legal and binding agreement
of CWHEQ, the Master Servicer and of the Sponsor, as applicable,
enforceable against CWHEQ, the Master Servicer or the Sponsor, 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, with respect to the
Indemnification Agreement, of public policy under applicable securities
laws as to rights of indemnity and contribution thereunder;
(iv) Assuming that the Notes have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Indenture and delivered and in the case of the Offered Notes paid for by
the Underwriters as provided in this Agreement, the Notes will be
validly issued and outstanding, will constitute the legal, valid and
binding obligations of the issuing entity, enforceable in accordance
with their terms, subject, as to
-21-
enforceability, to bankruptcy, insolvency and similar laws affecting the
rights of creditors generally and to general principles of equity, and
will be entitled to the benefits and security afforded by the Indenture;
(v) The Notes and the Transaction Documents conform in all
material respects to the descriptions thereof contained in the related
Prospectus;
(vi) The statements in the Prospectus Supplement, under the
headings "Material Federal Income Tax Consequences," "ERISA
Considerations" and "Summary--Legal Investment," and in the Prospectus
under "Material Federal Income Tax Consequences," "ERISA
Considerations," and "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 Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and the issuing entity is not
required to be registered under the 1940 Act;
(viii) The Transaction Documents create, for the benefit of the
Indenture Trustee, acting under the Indenture for the benefit of the
Holders of the Notes, a valid security interest under the Uniform
Commercial Code (the "UCC") as in effect in the State of New York in all
right, title and interest of the issuing entity in and to the Trust
Estate and the proceeds thereof; and
(ix) Each REMIC described in the Trust Agreement will qualify as a
"real estate mortgage investment conduit" ("REMIC") within the meaning
of Section 860D of the Internal Revenue Code of 1986, as amended (the
"Code"), (b) the Offered Notes and the Class C Certificates will be
treated as regular interests in the Master REMIC., and (c)
-22-
the rights of the holders of the LIBOR Notes with respect to Basis Risk
Carryforward will represent, for federal income tax purposes,
contractual rights coupled with REMIC regular interests within the
meaning of Treasury regulations ss.1.860G-2(i).
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 initially 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 applicable Prospectus
Supplement, and on such Closing Date, contained or contains an untrue
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 Notes.
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 Transaction Documents. 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) CWHEQ shall have furnished to the Underwriters an opinion,
dated the applicable Closing Date, of counsel to CWHEQ (who may be an employee
of CWHEQ or of an affiliate of CWHEQ), to the effect that:
-23-
(i) CWHEQ 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 Notes have been duly authorized by any necessary action
of CWHEQ and, assuming execution, authentication and delivery in the
manner contemplated in the Indenture, are validly issued and
outstanding, and upon delivery by CWHEQ of the Offered Notes to be
purchased by the Underwriters, the Underwriters will acquire such Notes
free and clear of any lien, pledge, encumbrance or other security
interest;
(iii) The Transaction Documents to which CWHEQ is a party have
been duly authorized, executed and delivered by CWHEQ;
(iv) 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 any
California or federal court is required for the consummation by CWHEQ of
the transactions contemplated by the terms of the Indemnification
Agreement or the Transaction Documents 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 Notes, any
recordations of the assignment of the Mortgage Loans to the Indenture
Trustee (to the extent such recordations are required pursuant to the
Indenture) that have not yet been completed and such other approvals as
have been obtained;
(v) The sale of the Offered Notes to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any of
the transactions contemplated by the terms of the Indemnification
Agreement or the Transaction
-24-
Documents to which CWHEQ is a party 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 incorporation of CWHEQ, or any
indenture or other agreement or instrument to which CWHEQ is a party or
by which it is bound, or any California or federal law, statute or
regulation, applicable to CWHEQ or to the best knowledge of such
counsel, an order or decree of any California or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over CWHEQ; and
(vi) There are no legal or governmental actions, investigations or
proceedings pending to which CWHEQ is a party, or, to the best knowledge
of such counsel, threatened against CWHEQ, (A) asserting the invalidity
of the Indemnification Agreement, the Notes or the Transaction Documents
to which CWHEQ is a party, (B) seeking to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by the
Indemnification Agreement or the Transaction Documents to which CWHEQ is
a party, (C) which might materially and adversely affect the performance
by CWHEQ of its obligations under, or the validity or enforceability of
the Indemnification Agreement, the Notes or the Transaction Documents to
which CWHEQ is a party, or (D) seeking to affect adversely the federal
income tax attributes of the Notes as described in the related
Prospectus under the heading "Material 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 CWHEQ a
present intention to initiate such proceedings.
-25-
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 Transaction Documents. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than CWHEQ 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) The Sponsor shall have furnished to the Underwriters an
opinion, dated the applicable Closing Date, of counsel to the Sponsor (who may
be an employee of the Sponsor), to the effect that:
(i) The Sponsor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of New
York;
(ii) The Indemnification Agreement and each Transaction Document
to which the Sponsor is a party have each been duly authorized, executed
and delivered by the Sponsor;
(iii) No consent, approval, authorization or order of any
California or federal court or governmental agency or body or, to the
best knowledge of such counsel, any order or decree of any California or
federal court is required for the consummation by the Sponsor of the
transactions contemplated by the terms of the Indemnification Agreement
and each Transaction Document to which the Sponsor is a party except any
such as may be required under the "blue sky" or state securities laws of
any jurisdiction in connection
-26-
with the offering, sale or acquisition of the Notes, any recordation of
the assignment of the Mortgage Loans evidenced by the Notes to the
Indenture Trustee (to the extent such recordations are required pursuant
to the Indenture) 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 Indemnification Agreement and each Transaction Document
to which the Sponsor is a party 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 the Sponsor, or, to the best
knowledge of such counsel, any indenture or other agreement or
instrument to which the Sponsor is a party or by which it is bound, any
California or federal law, statute or regulation, applicable to the
Sponsor or, to the best knowledge of such counsel, any order or decree
of any California or federal court, regulatory body, administrative
agency or governmental body having jurisdiction over the Sponsor; and
(v) There are no legal or governmental actions, investigations or
proceedings pending to which the Sponsor is a party, or, to the best
knowledge of such counsel, threatened against the Sponsor, (A) asserting
the invalidity of the Indemnification Agreement or the Transaction
Documents to which the Sponsor is a party or (B) which might materially
and adversely affect the performance by the Sponsor of its obligations
under, or the validity or enforceability of, the Indemnification
Agreement or the Transaction Documents to which the Sponsor is a party.
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
-27-
or governmental authority has manifested to the legal department of the
Sponsor 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 the Transaction Documents. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than the Sponsor. Such opinion may be qualified as an opinion only on the laws
of the State of 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.
(g) Each party, if any, providing credit enhancement to the Notes
shall have furnished to the Underwriters an opinion, dated the applicable
Closing Date, of its counsel, with respect to the Registration Statement, the
Prospectus, the 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 applicable Closing Date, with respect to the
issuance and sale of the Notes, the Registration Statement and the Prospectus,
and such other related matters as the Underwriters may reasonably require.
(i) CWHEQ's independent accountants, KPMG LLP and/or Deloitte &
Touche LLP, shall 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 applicable Prospectus Supplement in the
-28-
form and reflecting the performance of the procedures previously agreed to by
CWHEQ and the Underwriters.
(j) Subsequent to the date of the applicable Terms Agreement,
there shall not have occurred any change, or any development involving a
prospective change, in or affecting the business or properties of CWHEQ or any
of its affiliates which in your reasonable judgment materially impairs the
investment quality of the Offered Notes so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the Offered
Notes as contemplated by the related Prospectus.
(k) The Notes shall be rated not lower than the required ratings
set forth under the heading "Ratings" in the related Prospectus Supplement,
such ratings shall not have been rescinded and no public announcement shall
have been made that any such required rating of the Offered Notes has been
placed under review (otherwise than for possible upgrading).
(l) The Underwriters shall have received copies of any opinions of
counsel to CWHEQ supplied to the rating organizations, the Loan Insurer or the
Indenture Trustee, relating to certain matters with respect to the Notes. Any
such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters addressed to the Underwriters.
(m) The Underwriters shall have received a copy of the opinions of
Xxxxxxxx, Xxxxxx & Finger, counsel for the Owner Trustee, dated the Closing
Date, addressed to the Underwriters and in form and substance reasonably
satisfactory to the Underwriters or accompanied by reliance letters addressed
to the Underwriters.
(n) The Indenture Trustee, shall have furnished to the
Underwriters an opinion dated the applicable Closing Date, of counsel to the
Indenture Trustee (who may be an employee
-29-
of the Indenture Trustee), in form and substance satisfactory to the
Underwriters and their counsel.
(o) CWHEQ 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 applicable Closing Date, each of the Indemnification
Agreement and the applicable Transaction Documents will have been duly
authorized, executed and delivered by, and will constitute a legal, valid and
binding obligation of CWHEQ, the Master Servicer and the Sponsor, 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) As of the Closing Date, the Policy shall have been issued by
the Loan Insurer and shall have been duly authenticated by an authorized agent
of the Loan Insurer, if so required under applicable state law or regulations.
(r) No default, Event of Default or event which with the passage
of time, the giving of notice or both would be an Event of Default under the
Indenture shall have occurred. No Event of Servicing Termination or event
which with the passage of time, the giving of notice or both would be an Event
under the SSA shall have occurred.
-30-
(s) Any of the opinions, officers certificates or letters required
to be delivered and dated on a Closing Date may consist of such documents
issued in connection with a prior closing accompanied by reliance letters
addressed to the Underwriters and confirming that the Underwriters for an
Offering may rely on such documents and that the conclusions therein expressed
are true and correct as of the applicable Closing Date, not the date of
original issuance.
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 time prior to,
the related Closing Date by such Underwriter. Notice of such cancellation
shall be given to CWHEQ in writing, or by telephone or telegraph confirmed in
writing.
7. Termination. This Agreement shall be subject to termination
with respect to a particular Offering in the related Underwriters' absolute
discretion, by notice given to CWHEQ prior to delivery of and payment for the
related Offered Notes, 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 applicable Underwriters'
judgment after consultation with CWHEQ, impracticable to market the Offered
Notes on the terms specified in this Agreement.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
CWHEQ and its officers and of each Underwriter set forth in or made pursuant
to this Agreement will remain in full force and
-31-
effect, regardless of any investigation made by or on behalf of any
Underwriter or CWHEQ, and will survive delivery of and payment for the related
Offered Notes. The provisions of Section 5(f) 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 Offered
Notes or termination by any Underwriter pursuant to Section 7 hereof, the
Offered Notes are not delivered by or on behalf of CWHEQ as provided herein,
CWHEQ will reimburse each applicable Underwriter for all out-of-pocket
expenses of such Underwriter, including reasonable fees and disbursements of
its counsel, reasonably incurred by such Underwriter in making preparations
for the purchase, sale and delivery of the Offered Notes, but CWHEQ shall then
be under no further liability to any Underwriter with respect to the related
Offered Notes, except as provided in Section 5(f) hereof.
10. Default by an Underwriter. If any one or more of the
Underwriters for an Offering shall fail to purchase and pay for any of the
Offered Notes 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 for that Offering shall be obligated severally to take up and pay
for (in the respective proportions which the aggregate principal amount of all
the related Offered Notes of the various Classes set forth opposite their
names in the applicable Terms Agreement bears to the aggregate principal
amount of all of the Offered Notes of the various Classes set forth opposite
the name of all the remaining Underwriters) the Offered Notes that the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate principal amount of
Offered Notes which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of all
of the
-32-
Offered Notes set forth in the applicable Terms Agreement, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Offered Notes, and if such nondefaulting
Underwriters do not purchase all the Offered Notes, this Agreement will
terminate without liability to any nondefaulting Underwriter or CWHEQ. In the
event of a default by any Underwriter for an Offering as set forth in this
Section 10, the related Closing Date shall be postponed for such period, not
exceeding seven days, as the nondefaulting Underwriters for that Offering
shall determine in order that required changes in the Registration Statement
and the related Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to CWHEQ 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 CWHEQ, 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
Securities Act, and for the benefit of directors of CWHEQ, officers of CWHEQ
who have signed the Registration Statement and any person controlling CWHEQ
within the meaning of Section 15 of the Securities 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.
-33-
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York without regard
to the conflicts of laws provision thereof.
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.
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 of the applicable Terms
Agreement, or if sent to CWHEQ, shall be delivered to 0000 Xxxx Xxxxxxx, X.X.
XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000, attention of Deputy General Counsel for
Corporate Finance.
-34-
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 CWHEQ and each Underwriter on _______, 200_ relating to
CWHEQ Revolving Home Equity Loan Trust, Series 200_-_, Revolving Home Equity
Loan Asset Backed Notes, Series 200_-_.
Very truly yours,
CWHEQ, INC.
By:___________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted.
COUNTRYWIDE SECURITIES CORPORATION
By:____________________________
Name:
Title:
Address:
EXHIBIT A
CWHEQ, INC.
Revolving Home Equity Loan Trust Asset Backed Notes, Series 200_-_
TERMS AGREEMENT
---------------
(to Underwriting Agreement,
dated _______, 200_
among CWHEQ, Inc. and
the Underwriters)
CWHEQ, Inc. ________, 200_
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
This letter supplements and modifies the above-captioned Underwriting
Agreement (the "Underwriting Agreement") with respect to the above-captioned
securities solely as the Underwriting Agreement relates to the purchase and
sale of the Offered Notes described below. Each of the undersigned
Underwriters agrees to be bound by the terms and provisions of the
Underwriting Agreement as supplemented and modified by this Terms Agreement.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Underwriting Agreement, unless the context clearly
indicates otherwise.
Section 1. The Notes: The Offered Notes hereunder are as follows:
(a) Classes: The Classes of Notes that constitute "Offered Notes" are listed
below:
Principal Pass-Through Class Purchase
Class Balance Rate Price Percentage
----- ------- ---- ----------------
Each of the undersigned Underwriters agrees, severally and not jointly,
subject to the terms and provisions herein and of the Underwriting Agreement,
to purchase the principal balances of the Classes of the Offered Notes
specified beneath its name below.
Class
-----
(b) The Offered Notes shall have such other characteristics as described in
the related Prospectus.
(c) The "Closing Date" is [_______] [__], 200[_].
Section 2. Purchase Price: The Purchase Price for each Class of the Offered
Notes shall be the Class Purchase Price Percentage therefor (as set forth in
Section 1(a) above) of the initial class principal balance thereof [plus
accrued interest at the applicable interest rate per annum of each such Class
from and including the Cut-off Date up to, but not including, the Closing
Date].
Section 3. Indemnification Agreement: By its execution of this Terms
Agreement, each of the undersigned Underwriters agrees to be bound by the
Indemnification Agreement dated [_______] [__], 200[_].
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between each of the undersigned Underwriters and CWHEQ, Inc.
Very truly yours,
[COUNTRYWIDE SECURITIES CORPORATION]
By: ______________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
CWHEQ, INC.
By: _________________________
Name:
Title:
