EXHIBIT 1.1
CWMBS, INC.
Mortgage Pass-Through Certificates, 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
Ladies and Gentlemen:
CWMBS, Inc., a Delaware corporation ("CWMBS"), proposes to cause to
be issued and to sell to you, as underwriters (each, an "Underwriter"), the
Mortgage Pass-Through Certificates of the series specified on the signature
page hereof and described in Section 2 hereof (the "Underwritten Public
Certificates" and, together with any certificates of such series retained by
CWMBS or [Countrywide Home Loans, Inc.] ("[CHL]"), if any, set forth on the
cover page of the Prospectus Supplement (as defined below), collectively, the
"Public Certificates") having the characteristics set forth in the Prospectus
Supplement, evidencing ownership interests in a trust consisting of mortgage
notes and the related mortgages acquired by CWMBS (the "Mortgage Loans") and
related property (collectively, the "Trust Fund"). The Mortgage Loans will be
of the type and will have the characteristics described in the Prospectus
Supplement, subject to the variances, ranges, minimums and maximums set forth
in the Prospectus Supplement, and will have the aggregate principal balance
set forth in the Prospectus Supplement, subject to an upward or downward
variance in principal balance, not to exceed the percentage set forth in the
Prospectus Supplement, the precise aggregate principal balance within such
range to be determined by CWMBS in its sole discretion.
The Public Certificates, together with the other classes of
certificates of the series specified on the signature page hereof (the
"Private Certificates," and collectively with the Public Certificates, the
"Certificates") are to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of the first day of the month of
the date of this Agreement, among CWMBS, as Depositor, [Countrywide Home Loans
Servicing LP], as master servicer (the "Master Servicer"), [CHL], one or more
special purpose entities established by [Countrywide Financial Corporation] or
one of its subsidiaries (together with [CHL], the "Sellers") and
___________________, as trustee (the "Trustee"). The Public Certificates of
each class will be issued in the minimum denominations and will have the terms
set forth in the Prospectus Supplement. Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto
in the Pooling and Servicing Agreement.
If and to the extent specified in the Pooling and Servicing
Agreement, in addition to the Mortgage Loans conveyed to the Trust Fund on the
Closing Date, CWMBS may convey to the Trust Fund, from time to time during the
period specified in the Pooling and Servicing Agreement (each such period, a
"Conveyance Period") (the date of any such conveyance, a "Supplemental
Transfer Date") Supplemental Mortgage Loans.
1. Representations and Warranties. CWMBS 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 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 CWMBS,
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[CHL] and the other parties named therein) and as of the 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 CWMBS's knowledge threatened
by the Commission. The prospectus in the form in which it will be
used in connection with the offering of the Public Certificates (the
"Base Prospectus") is proposed to be supplemented by a prospectus
supplement dated the date hereof relating to the Certificates and, as
so supplemented, to be filed with the Commission pursuant to Rule 424
under the Act. (Such registration statement is hereinafter referred
to as the "Registration Statement;" such prospectus supplement, as
first filed with the Commission, is 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 Public Certificates, including documents incorporated
therein as of the time of such filing and as supplemented by the
Prospectus Supplement, is hereinafter referred to as the
"Prospectus"). 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
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Registration Statement became effective or 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 as of its effective date, as
of the date of the Prospectus Supplement and as of the date of each
Contract of Sale conformed and 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 dates.
The Prospectus, as of its issue date, as of the date of the
Prospectus Supplement and as revised, amended or supplemented and
filed with the Commission prior to the termination of the offering of
the Public Certificates, conformed and 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 Prospectus as revised, amended or
supplemented and filed with the Commission as of the Closing Date
will conform in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder applicable
to such documents as of the Closing Date. The Registration Statement,
at the time it became effective 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
Prospectus as of the date of the Prospectus Supplement, and the
Prospectus as revised, amended or supplemented and filed prior to the
Closing Date, as of the Closing Date, will not include any untrue
statement of a material fact and will not omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
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were made, not misleading; provided, however, that CWMBS makes no
representations, warranties or agreements as to the information
contained in or omitted from the Prospectus or any revision or
amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to CWMBS by or on
behalf of any Underwriter or Broker-Dealer (as defined in the
Indemnification Agreement) specifically for use in connection with
the preparation of the Prospectus or any revision or amendment
thereof or supplement thereto, such information being defined in the
Indemnification Agreement.
(c) The Issuer 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 "issuer 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
Issuer Free Writing Prospectus has been filed with the Commission as
required by Rule 433. The Issuer 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.
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(e) The Public Certificates will conform in all material
respects to the description thereof contained in the Disclosure
Package and the Prospectus, and each of the Certificates, when
validly authenticated, issued and delivered in accordance with the
Pooling and Servicing Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement. Each Certificate of the classes indicated to be "mortgage
related securities" under the heading "Summary--Legal Investment" in
the Prospectus Supplement will, when issued, be a "mortgage related
security" as such term is defined in Section 3(a)(41) of the Exchange
Act.
(f) This Agreement has been duly authorized, executed and
delivered by CWMBS. As of the Closing Date, the Pooling and Servicing
Agreement, the Indemnification Agreement and each insurance
agreement, if any, referred to in the Prospectus Supplement (each an
"Insurance Agreement" and collectively the "Insurance Agreements")
between CWMBS and the third party provider of credit enhancement, if
any (the "Certificate Insurer"), included in the Trust Fund will have
been duly authorized, executed and delivered by CWMBS 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, each subsequent supplemental transfer
agreement, if any, referred to in the Disclosure Package and the
Prospectus Supplement (each a "Supplemental Transfer Agreement") and
the Pooling and Servicing Agreement each will constitute a legal,
valid and binding agreement of CWMBS enforceable in accordance with
its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting creditors'
rights generally and by general principles of equity.
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(g) CWMBS 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 Disclosure Package and the
Prospectus and to enter into and perform its obligations under the
Pooling and Servicing Agreement, each Supplemental Transfer
Agreement, the Indemnification Agreement, the Insurance Agreements
and this Agreement.
(h) Neither the issuance or delivery of the Certificates,
nor the consummation of any other of the transactions contemplated
herein, nor compliance with the provisions of the Pooling and
Servicing Agreement, the Indemnification Agreement, each Supplemental
Transfer Agreement, the Insurance Agreements or this Agreement, will
conflict with or result in the breach of any material term or
provision of the certificate of incorporation or bylaws of CWMBS, and
CWMBS 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
CWMBS is a party or by which it or its properties are bound, or (ii)
any law, decree, order, rule or regulation applicable to CWMBS of any
court or supervisory, regulatory, administrative or governmental
agency, body or authority, or arbitrator having jurisdiction over
CWMBS, or its properties, the default in or the breach or violation
of which would have a material adverse effect on CWMBS or the
Certificates or the ability of CWMBS to perform its obligations under
the Pooling and Servicing Agreement, the Indemnification Agreement,
each Supplemental Transfer Agreement, the Insurance Agreements or
this Agreement; and neither the delivery of the Certificates, nor
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the consummation of any other of the transactions contemplated
herein, nor the compliance with the provisions of the Pooling and
Servicing Agreement, the Indemnification Agreement each Supplemental
Transfer Agreement, the Insurance Agreement or this Agreement 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 the consummation by
CWMBS of the transactions contemplated by the Pooling and Servicing
Agreement, the Indemnification Agreement, each Supplemental Transfer
Agreement, the Insurance Agreements or this Agreement (other than as
required under "blue sky" or state securities laws, as to which no
representations and warranties are made by CWMBS), except such as
have been, or will have been prior to the Closing Date or
Supplemental Transfer Date, as applicable, obtained under the Act,
and such recordations of the assignment of the Mortgage Loans to the
Trustee (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) 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
CWMBS is a party, or to the best of CWMBS's knowledge threatened
against CWMBS 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 CWMBS or could reasonably interfere with or materially
and adversely affect the consummation of the transactions
contemplated in the Pooling and Servicing Agreement,
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the Indemnification Agreement, each Supplemental Transfer Agreement,
the Insurance Agreements or this Agreement.
(k) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) CWMBS will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"), except to the extent
permitted in the Pooling and Servicing Agreement, and will not have
assigned to any person other than the Trust Fund any of its right,
title or interest in the Mortgage Loans, (2) CWMBS will have the
power and authority to transfer the Mortgage Loans to the Trust Fund
and to transfer the Underwritten Public Certificates to you, (3) upon
execution and delivery to the Trustee of the Pooling and Servicing
Agreement, and delivery of the Certificates to CWMBS, the Trust Fund
will own the Mortgage Loans free of Liens other than Liens permitted
by the Pooling and Servicing Agreement or created or granted by you,
and (4) upon payment and delivery of the Underwritten Public
Certificates to you, you will acquire ownership of the Underwritten
Public Certificates, free of Liens other than Liens permitted by the
Pooling and Servicing Agreement or created or granted by you. At the
time of execution and delivery of each Supplemental Transfer
Agreement, (1) CWMBS will own the Mortgage Loans being transferred to
the Trust Fund pursuant thereto, free and clear of any Lien, except
to the extent permitted in the Pooling and Servicing Agreement, and
will not have assigned to any person other than the Trust Fund any of
its right, title or interest in the related Mortgage Loans, (2) CWMBS
will have the power and authority to transfer the related Mortgage
Loans to the Trust Fund, (3) upon execution and delivery to the
Trustee of each Supplemental Transfer Agreement, the
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Trust Fund will own the related Mortgage Loans free of Liens other
than Liens permitted by the Pooling and Servicing Agreement or
created or granted by you and (4) CWMBS will have complied with the
requirements contained in the Pooling and Servicing Agreement for
transferring the related Mortgage Loans.
(l) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of the Pooling
and Servicing Agreement, the Indemnification Agreement, the Insurance
Agreements, each Supplemental Transfer Agreement, this Agreement and
the Certificates have been or will be paid by CWMBS at or prior to
the Closing Date (or in the case of each Supplemental Transfer
Agreement, the applicable Supplemental Transfer Date), except for
fees for recording assignments of the Mortgage Loans to the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet
been completed, which fees will be paid by or on behalf of CWMBS in
accordance with the Pooling and Servicing Agreement.
(m) The Master Servicer or any subservicer who will be
servicing any Mortgage Loans pursuant to the Pooling and Servicing
Agreement is qualified to do business in all jurisdictions in which
its activities as servicer or subservicer of the Mortgage Loans
serviced by it require such qualification except where failure to be
so qualified will not have a material adverse effect on such
servicing activities.
(n) The transfer of the Mortgage Loans to the Trust Fund at
the Closing Date will be treated by CWMBS for financial accounting
and reporting purposes as a sale of assets and not as a pledge of
assets to secure debt.
(o) As of the earliest time after filing of the Registration
Statement that CWMBS or another offering participant made a bona fide
offer (within the meaning of
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Rule 164(h)(2) under the Act) of the Public Certificates, CWMBS was
not and will not be an "ineligible issuer" as defined in Rule 405
under the Act.
(p) CWMBS is not doing business with Cuba.
(q) CWMBS 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 Public Certificates
that would constitute a "free writing prospectus" as defined in Rule
405 under the Act;
(r) CWMBS has complied and will comply with the requirements
of Rule 433 under the Act applicable to the Issuer Free Writing
Prospectus, including timely filing with the Commission or retention
where required and legending.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set
forth, CWMBS agrees to sell, and each Underwriter agrees, severally
and not jointly, to purchase from CWMBS, the respective Initial Class
Certificate Balance of each Class of Underwritten Public Certificates
to be purchased by such Underwriter as specified in the Prospectus
Supplement. The purchase price at which each Underwriter will
purchase its Underwritten Public Certificates shall be as set forth
in a separate pricing letter dated the date hereof between each such
Underwriter and CWMBS (each, a "Pricing Letter"), and the terms of
each such Pricing Letter are hereby incorporated herein by reference
as if such terms were stated herein in their entirety. References
herein to this "Agreement" shall include the terms of each Pricing
Letter.
3. Delivery and Payment. The Public Certificates shall be
delivered at the office, on the date and at the time specified in the
Prospectus Supplement, which place,
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date and time may be changed by agreement between the Underwriters
and CWMBS (such date and time of delivery of and payment for such
Public Certificates being referred to herein as the "Closing Date").
Delivery of the Underwritten Public Certificates shall be made to
each of the Underwriters as against their respective payment of the
purchase price therefor to or upon the order of CWMBS in immediately
available federal funds. The Underwritten Public Certificates shall
be registered in such names and in such denominations as the
respective Underwriters may have requested or as required by
book-entry registration not less than [two] full business days prior
to the Closing Date.
4. Offering by Underwriters. (a) (a)It is understood that
the Underwriters propose to offer the Underwritten Public
Certificates for sale as set forth in the Prospectus and that you
will not offer, sell or otherwise distribute the Underwritten Public
Certificates (except for the sale thereof in exempt transactions) in
any state in which the Underwritten Public Certificates are not
exempt from registration under "blue sky" or state securities laws
(except where the Underwritten Public Certificates will have been
qualified for offering and sale at your 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
Underwritten Public Certificates 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 uses a "road show" (as
defined in Rule 433(h)(4) under the Act) in connection with the
offering of the Underwritten Public Certificates, the Underwriter
agrees that all information in such road show shall be
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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 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 Underwritten
Public Certificates 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 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. CWMBS agrees with each Underwriter that:
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(a) CWMBS will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 under the Act and, if indicated in
the Prospectus, within [15] days of the Closing Date, will file a
report on Form 8-K setting forth specific information concerning the
Mortgage Loans, and will promptly advise each Underwriter when the
Prospectus has been so filed, and, prior to the termination of the
offering of the Public Certificates, will also promptly advise each
Underwriter (i) when any amendment to the Registration Statement has
become effective or any revision of or supplement to the Prospectus
has been so filed (unless such amendment, revision or supplement does
not relate to the Certificates), (ii) of any request by the
Commission for any amendment of the Registration Statement or the
Prospectus or for any additional information (unless such request for
additional information does not relate to the Certificates), (iii) of
any written notification received by CWMBS of the suspension of
qualification of the Public Certificates for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose
and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or to the knowledge of CWMBS, the threatening of any
proceeding for that purpose. CWMBS 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, CWMBS will not file prior to the
termination of such offering any amendment to the Registration
Statement or any revision of or supplement to the Prospectus (other
than any such amendment, revision or supplement which does not relate
to the Certificates) which shall be disapproved by the Underwriters
after reasonable notice and review of such filing.
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(b) If, at any time when a statutory prospectus relating to
the Public Certificates is required to be delivered under the Act (i)
any event occurs as a result of which the Prospectus as then amended
or supplemented would include any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, or (ii) it shall be necessary to revise, amend or
supplement the Prospectus to comply with the Act or the rules and
regulations of the Commission thereunder, CWMBS promptly will notify
each Underwriter and will, upon the request of any Underwriter, or
may, after consultation with each Underwriter, prepare and file with
the Commission a revision, amendment or supplement which will correct
such statement or omission or effect such compliance, and furnish
without charge to each Underwriter as many copies as such Underwriter
may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or
omission or effect such compliance.
(c) 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, CWMBS
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
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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) CWMBS will cause to be delivered to each Underwriter and
counsel for the Underwriters an agreed upon procedures letter from
________________________:
(i) as of the Start Date with respect to the Issuer
Free Writing Prospectus; and
(ii) with respect to the Prospectus as provided in
Section 6 (i).
(e) CWMBS 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 Public Certificates is
required under the Act, as many copies of the Prospectus and any
revisions or amendments thereof or supplements thereto as may be
reasonably requested.
(f) CWMBS will, as between itself and the Underwriters, pay
all expenses incidental to the performance of its obligations under
this Agreement, including without limitation (i) expenses of
preparing, printing and reproducing the Registration Statement, the
Prospectus, the Disclosure Package, the Pooling and Servicing
Agreement and the Certificates, (ii) the cost of delivering the
Underwritten Public Certificates to the Underwriters, insured to your
reasonable satisfaction, (iii) the fees charged by securities rating
services for rating the Certificates, (iv) the fees and expenses of
the Trustee except for fees and expenses of Trustee's counsel which
will be borne by the Trustee and (v) all other costs and expenses
incidental to the performance by CWMBS of CWMBS'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
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hereof, each Underwriter will pay all of its own expenses, including
(i) the fees of any counsel to such Underwriter, (ii) any transfer
taxes on resale of any of the Certificates by it, (iii) any
advertising expenses connected with any offers that such Underwriter
may make and (iv) any expenses for the qualification of the
Certificates under "blue sky" or state securities laws, including
filing fees and the fee and disbursements of counsel for such
Underwriter in connection therewith and in connection with the
preparation of any Blue Sky Survey.
(g) So long as any Certificates are outstanding, upon
request of any Underwriter, CWMBS will, or will cause the Master
Servicer to, furnish to such Underwriter, as soon as available, a
copy of (i) the annual statement of compliance delivered by the
Master Servicer to the Trustee under the Pooling and Servicing
Agreement, (ii) the annual independent public accountants' servicing
report furnished to the Trustee pursuant to the Pooling and Servicing
Agreement, (iii) each report of CWMBS regarding the Certificates
filed with the Commission under the Exchange Act or mailed to the
holders of the Certificates and (iv) from time to time, such other
information concerning the Certificates which may be furnished by
CWMBS or the Master Servicer without undue expense and without
violation of applicable law.
(h) CWMBS will file ABS ICM or Preliminary Term Sheets (as
defined in the Indemnification Agreement) furnished to CWMBS by an
Underwriter, to the extent required under the Act, prior to the time
of filing of the Prospectus as provided in the Indemnification
Agreement and will include therein all materials so furnished. In
addition, CWMBS will file all reports with respect to the Trust Fund
required to be filed under the Exchange Act, when the same are
required thereby to be so filed.
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(i) If by the [third] anniversary (the "Renewal Deadline")
of the initial effective date of the Registration Statement, any of
the Public Certificates remain unsold by the Underwriters and the
Underwriters have so notified CWMBS in writing at least [90] days
prior to the Renewal Deadline, CWMBS will file, if it has not already
done so and is eligible to do so, a new shelf registration statement
relating to the Public Certificates, 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. CWMBS will take all other action necessary or
appropriate to permit the public offering and sale of the Public
Certificates to continue as contemplated in the expired registration
statement relating to the Public Certificates. References herein to
the Registration Statement shall include such new shelf registration
statement.
6. Conditions to the Obligations of Underwriters. The
obligation of each Underwriter to purchase the Underwritten Public
Certificates to be purchased by it as indicated in the related
Pricing Letter and as provided herein shall be subject to the
accuracy in all material respects of the representations and
warranties on the part of CWMBS contained herein as of the date
hereof and as of the Closing Date, to the accuracy of the statements
of CWMBS made in any officer's certificate pursuant to the provisions
hereof, to the performance in all material respects by CWMBS 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 Prospectus
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shall have been filed or mailed for filing with the
Commission not later than required pursuant to the rules and
regulations of the Commission.
(b) CWMBS shall have furnished to the Underwriters
a certificate, dated the Closing Date, of CWMBS, signed by a
vice president of CWMBS, to the effect that the signer of
such certificate has carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of CWMBS
herein are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on
the Closing Date, and CWMBS has complied with all agreements
and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement has been issued, and no
proceedings for that purpose have been instituted and are
pending or, to his knowledge, have been threatened as of the
Closing Date; and
(iii) Nothing has come to the attention of such
person that would lead him to believe that the Prospectus at
the date thereof and at the date hereof contained or
contains any untrue statement of a material fact or omitted
or omits to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) [CHL] shall have furnished to the Underwriters
a certificate, dated the Closing Date, of [CHL], signed by a
vice president or an assistant vice president of [CHL], to
the effect that (i) the signer of such certificate has
carefully
19
examined the Prospectus and nothing has come to the
attention of such person that would lead him to believe that
the Prospectus contains any untrue statement of a material
fact with respect to [CHL] or the Mortgage Loans or omits to
state any material fact with respect to [CHL] or the
Mortgage Loans necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading and (ii) [CHL] has complied with all
agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date
under the Pooling and Servicing Agreement, the
Indemnification Agreement, the Insurance Agreements or this
Agreement.
(d) CWMBS shall have furnished to you an opinion,
dated the Closing Date, of ____________________, special
counsel to CWMBS, to the effect that:
(i) The Registration Statement and any amendments
thereto have become effective under the Act; to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued
and not withdrawn, no proceedings for that purpose have been
instituted or threatened and not terminated; and the
Registration Statement, the Prospectus and each amendment or
supplement thereto, as of their respective initial effective
or issue dates (other than the financial and 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 the Prospectus or to be filed as
20
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 Pooling and Servicing
Agreement and this Agreement have each been duly authorized,
executed and delivered by the parties thereto, each
constitutes a valid, legal and binding agreement of CWMBS,
the Master Servicer and [CHL] in the case of the Pooling and
Servicing Agreement and of CWMBS in the case of this
Agreement and the Insurance Agreements enforceable against
CWMBS, the Master Servicer or [CHL], as applicable, in
accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether
enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly
and validly authorized, executed and authenticated in the
manner contemplated in the Pooling and Servicing Agreement,
when delivered and paid for by you as provided in this
Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits of the Pooling and
Servicing Agreement;
(v) The Certificates and the Pooling and Servicing
Agreement conform in all material respects to the
descriptions thereof contained in the Prospectus;
(vi) The statements in the Prospectus Supplement,
under the headings "Material Federal Income Tax
Consequences," "ERISA Considerations" and "Summary--Legal
Investment," and in the Prospectus under "Material Federal
21
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 Certificates indicated under the heading
"Summary--Legal Investment" in the Prospectus Supplement to
be "mortgage related securities" will be mortgage related
securities, as defined in Section 3(a)(41) of the Exchange
Act, so long as such Certificates are rated in one of the
two highest rating categories by at least one nationally
recognized statistical rating organization;
(viii) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of
1939, as amended, and the Trust Fund created by the Pooling
and Servicing Agreement is not required to be registered
under the Investment Company Act of 1940, as amended; and
(ix) Each REMIC as described in the Pooling and
Servicing 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 Regular Certificates will be treated as
regular interests in the Master REMIC, and (c) the Class A-R
Certificate will represent ownership of the sole class of
residual interest in each REMIC created pursuant to the
Pooling and Servicing Agreement.
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
22
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, as of the date of the Prospectus Supplement, and on the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
view as to (i) financial and statistical information contained therein or (ii)
any description in the Prospectus of any third party providing credit
enhancement to the Certificates.
Such opinion may express its reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement and the
Pooling and Servicing Agreement. Such opinion may be qualified as an opinion
only on the laws of the State of New York and the federal law of the United
States. To the extent that such firm relies upon the opinion of other counsel
in rendering any portion of its opinion, the opinion of such other counsel
shall be attached to and delivered with the opinion of such firm that is
delivered to you.
(e) CWMBS shall have furnished to the Underwriters an
opinion, dated the Closing Date, of counsel to CWMBS (who may be an
employee of CWMBS or of an affiliate of CWMBS), to the effect that:
(i) CWMBS has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of
Delaware and is duly qualified to do business in, and is in good
standing as a foreign corporation under the laws of, the State of
California;
(ii) The Certificates have been duly authorized and executed
and, assuming authentication and delivery in the manner contemplated
in the Pooling
23
and Servicing Agreement, are validly issued and outstanding, and upon
delivery by CWMBS of the Certificates to be purchased by the
Underwriters and payment by the Underwriters of the purchase price
therefor in the manner contemplated by this Agreement, the
Underwriters will acquire such Certificates free and clear of any
lien, pledge, encumbrance or other security interest other than one
created or granted by any Underwriter;
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by CWMBS;
(iv) This Agreement, the Insurance Agreements and the
Indemnification Agreement have each been duly authorized, executed
and delivered by CWMBS;
(v) No consent, approval, authorization or order of any
[California] or federal governmental agency or body or, to the best
knowledge of such counsel, any [California] or federal court is
required for the consummation by CWMBS of the transactions
contemplated by the terms of this Agreement, the Insurance Agreements
or the Pooling and Servicing Agreement except such as may be required
under the "blue sky" or state securities laws of any jurisdiction in
connection with the offering, sale or acquisition of the
Certificates, any recordations of the assignment of the mortgage
loans to the Trustee (to the extent such recordations are required
pursuant to the Pooling and Servicing Agreement) that have not yet
been completed and such other approvals as have been obtained;
(vi) The sale of the Certificates to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any
of the transactions
24
contemplated by the terms of the Pooling and Servicing Agreement, the
Indemnification Agreement or this Agreement do not conflict with or
result in a breach or violation of any material term or provision of,
or constitute a default under, the certificate of incorporation of
CWMBS, or any indenture or other agreement or instrument to which
CWMBS is a party or by which it is bound, or any [California] or
federal statute or regulation applicable to CWMBS 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 CWMBS; and
(vii) There are no legal or governmental actions,
investigations or proceedings pending to which CWMBS is a party, or,
to the best knowledge of such counsel, threatened against CWMBS, (A)
asserting the invalidity of this Agreement, the Pooling and Servicing
Agreement, the Indemnification Agreement, the Insurance Agreements or
the Certificates, (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement,
the Indemnification Agreement or the Insurance Agreements, (C) which
might materially and adversely affect the performance by CWMBS of its
obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement, the Indemnification
Agreement, the Insurance Agreements or the Certificates or (D)
seeking to affect adversely the federal income tax attributes of the
Certificates as described in the Prospectus under the heading
"Material Federal Income Tax Consequences." For purposes of the
foregoing,
25
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 CWMBS a present intention
to initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement, the Insurance
Agreements, the Indemnification Agreement and the Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than CWMBS or its affiliates. Such opinion may be qualified as
an opinion only on the laws of the States of Delaware and California and the
federal law of the United States. To the extent that such counsel relies upon
the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriters.
(f) [CHL] shall have furnished to the Underwriters an
opinion, dated the Closing Date, of counsel to [CHL] (who may be an
employee of [CHL]), to the effect that:
(i) [CHL] has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of [New York];
(ii) The Pooling and Servicing Agreement and the
Insurance Agreements have each been duly authorized,
executed and delivered by [CHL];
(iii) No consent, approval, authorization or order
of any [California] or federal governmental agency or body
or, to the best knowledge of such counsel,
26
any [California] or federal court is required for the
consummation by [CHL] of the transactions contemplated by
the terms of the Pooling and Servicing Agreement except any
such as may be required under the "blue sky" or state
securities laws of any jurisdiction in connection with the
offering, sale or acquisition of the Certificates, any
recordations of the assignment of the Mortgage Loans
evidenced by the Certificates to the Trustee (to the extent
such recordations are required pursuant to the Pooling and
Servicing Agreement) that have not yet been completed and
any approvals as have been obtained;
(iv) The consummation of any of the transactions
contemplated by the terms of the Pooling and Servicing
Agreement or the Insurance Agreements do not conflict with
or result in a breach or violation of any material term or
provision of, or constitute a default under, the charter or
bylaws of [CHL], or, to the best knowledge of such counsel,
any indenture or other agreement or instrument to which
[CHL] is a party or by which it is bound, any [New York] or
federal law, statute or regulation applicable to [CHL] or,
to the best knowledge of such counsel, any order of any
[California] or federal court, regulatory body,
administrative agency or governmental body having
jurisdiction over [CHL]; and
(v) There are no legal or governmental actions,
investigations or proceedings pending to which [CHL] is a
party, or, to the best knowledge of such counsel, threatened
against [CHL], (A) asserting the invalidity of the Pooling
and Servicing Agreement or the Insurance Agreements or (B)
which might materially and adversely affect the performance
by [CHL] of its obligations under, or the validity or
enforceability of, the Pooling and Servicing Agreement or
the
27
Insurance Agreements. For purposes of the foregoing, such
counsel may state that it has not regarded any legal or
governmental actions, investigations or proceedings to be
"threatened" unless the potential litigant or governmental
authority has manifested to the legal department of [CHL] 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 Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than [CHL]. Such opinion may be qualified as an opinion only on
the laws of the Incorporation State and the federal law of the United States
and, with respect to the opinions set forth in paragraph (f)(ii) above, the
laws of the State of [New York]. 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) The Master Servicer shall have furnished to the
Underwriters an opinion, dated the Closing Date, of counsel to the
Master Servicer (who may be an employee of the Master Servicer), to
the effect that:
(i) The Master Servicer has been duly formed and is
validly existing as a limited partnership in good standing
under the laws of the State of [Texas];
(ii) The Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Master
Servicer;
28
(iii) No consent, approval, authorization or order
of any [California] or federal governmental agency or body
or, to the best knowledge of such counsel, any [California]
or federal court is required for the consummation by the
Master Servicer of the transactions contemplated by the
terms of the Pooling and Servicing Agreement except any such
as may be required under the "blue sky" or state securities
laws of any jurisdiction in connection with the offering,
sale or acquisition of the Certificates, any recordations of
the assignment of the Mortgage Loans evidenced by the
Certificates to the Trustee (to the extent such recordations
are required pursuant to the Pooling and Servicing
Agreement) that have not yet been completed and any
approvals as have been obtained;
(iv) The consummation of any of the transactions
contemplated by the terms of the Pooling and Servicing
Agreement does not conflict with or result in a breach or
violation of any material term or provision of, or
constitute a default under, the certificate of limited
partnership or the partnership agreement of the Master
Servicer, or, to the best knowledge of such counsel, any
agreement or instrument to which the Master Servicer is a
party or by which it is bound, any [California] or federal
statute or regulation applicable to the Master Servicer or,
to the best knowledge of such counsel, any order of any
[California] or federal court, regulatory body,
administrative agency or governmental body having
jurisdiction over the Master Servicer; and
(v) There are no legal or governmental actions,
investigations or proceedings pending to which the Master
Servicer is a party, or, to the best knowledge of such
counsel, threatened against the Master Servicer, (A)
asserting
29
the invalidity of the Pooling and Servicing Agreement (B)
which might materially and adversely affect the performance
by the Master Servicer of its obligations under, or the
validity or enforceability of, the Pooling and Servicing
Agreement. For purposes of the foregoing, such counsel may
state that it has not regarded any legal or governmental
actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has
manifested to the legal department of the Master Servicer a
present intention to initiate such proceedings.
(vi) Such opinion may express its reliance as to
factual matters on the representations and warranties made
by, and on certificates or other documents furnished by
officers of, the parties to the Pooling and Servicing
Agreement. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents
referred to therein by the parties thereto other than the
Master Servicer. 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.
(h) Each party, if any, providing credit enhancement to the
Certificates shall have furnished to the Underwriters an opinion,
dated the Closing Date, of its counsel, with respect to the
Registration Statement and the Prospectus, and such other related
matters, in the form previously agreed to by such provider and the
Underwriters.
(i) The Underwriters shall have received from their counsel
such opinion or opinions, dated the Closing Date, with respect to the
issuance and sale of the Public
30
Certificates, the Registration Statement and the Prospectus, and such
other related matters as you may reasonably require.
(j) CWMBS's independent accountants,
_____________________________, 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 Prospectus
Supplement in the form and reflecting the performance of the
procedures previously agreed to by CWMBS and the Underwriters.
(k) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective
change, in or affecting the business or properties of CWMBS which in
your reasonable judgment materially impairs the investment quality of
the Certificates so as to make it impractical or inadvisable to
proceed with the public offering or the delivery of the Certificates
as contemplated by the Prospectus.
(l) The Public Certificates shall be rated not lower than
the required ratings set forth under the heading "Ratings" in the
Prospectus Supplement, such ratings shall not have been rescinded and
no public announcement shall have been made that any such required
rating of the Certificates has been placed under review (otherwise
than for possible upgrading).
(m) The Underwriters shall have received copies of any
opinions of counsel to CWMBS supplied to the rating organizations
relating to certain matters with respect to the Certificates. Any
such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters addressed to the
Underwriters.
31
(n) All Classes of Certificates being publicly offered by
the Underwriters or privately placed by the Purchaser shall have been
issued and paid for pursuant to the terms of this Agreement and the
Purchase Agreement, respectively.
(o) The Trustee shall have furnished to the Underwriters an
opinion dated the Closing Date, of counsel to the Trustee (who may be
an employee of the Trustee), to the effect that:
(i) The Trustee has full corporate power and
authority to execute and deliver the Pooling and Servicing
Agreement and to perform its obligations thereunder and to
execute, countersign and deliver the Certificates.
(ii) The Pooling and Servicing Agreement has been
duly authorized, executed and delivered by the Trustee.
(iii) In the event that the Master Servicer
defaults in its obligation to make Advances pursuant to the
Pooling and Servicing Agreement, the Trustee is not, as of
the date hereof, prohibited by any provision of its articles
of incorporation or by-laws from assuming, pursuant to the
Pooling and Servicing Agreement, the obligation to make such
Advances.
(iv) The Pooling and Servicing Agreement is a
legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship
and similar laws affecting the rights of creditors
generally, and subject, as to enforceability, to general
principles of equity, regardless of whether such enforcement
is considered in a proceeding at law or equity.
32
Such opinion may express its reliance as to factual matters
on the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to the Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than the Trustee or its affiliates. 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 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.
(p) CWMBS 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.
(q) The Indemnification Agreement shall have been executed
and delivered.
(r) The Underwriters shall have received an opinion as to
certain matters regarding the seller(s) other than [CHL] in form and
substance reasonably satisfactory to the Underwriters and their
counsel.
(s) 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 may be canceled at, or at any time prior to,
the Closing Date by such Underwriter. Notice of such cancellation
shall be given to CWMBS in writing, or by telephone or telegraph
confirmed in writing.
33
7. Termination. This Agreement shall be subject to termination in
your absolute discretion, by notice given to CWMBS prior to delivery of and
payment for the Underwritten Public Certificates, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial
banking activities in [New York] shall have been declared by either Federal or
[New York] State authorities, or (iii) there shall have occurred any material
outbreak or escalation of hostilities or other calamity or crisis the effect
of which on the financial markets is such as to make it, in your judgment
after consultation with CWMBS, impracticable to market the Public Certificates
on the terms specified in this Agreement.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
CWMBS and its officers and of each Underwriter set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or CWMBS, and will
survive delivery of and payment for the Underwritten Public Certificates. 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 Underwritten
Public Certificates or termination by any Underwriter pursuant to Section 7
hereof, the Underwritten Public Certificates are not delivered by or on behalf
of CWMBS as provided herein, CWMBS will reimburse each Underwriter for all
out-of-pocket expenses of such Underwriter, including reasonable fees and
disbursements of its counsel, reasonably incurred by such Underwriter in
making preparations for the purchase, sale and delivery of the Underwritten
Public Certificates,
34
but CWMBS shall then be under no further liability to any Underwriter with
respect to the Underwritten Public Certificates, except as provided in Section
5(f) hereof.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns,
and no other person will have any right or obligation hereunder.
11. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
12. 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.
13. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to an Underwriter, shall be delivered
to the address specified on the signature page hereof; or if sent to CWMBS,
shall be delivered to [4500 Park Granada, M.S. XX-000, Xxxxxxxxx, Xxxxxxxxxx
00000, attention of General Counsel].
* * *
35
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 CWMBS and each Underwriter on ____________, 200_
relating to CWMBS, Inc. CHL Mortgage Pass-Through Trust 200_-__, Mortgage
Pass-Through Certificates, Series 200_-__.
Very truly yours,
CWMBS, INC.
By:___________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted.
_________________________________
By:_________________________________
Name:
Title:
Address:
