EXHIBIT 1.1
CWALT, INC.
Mortgage Pass-Through Certificates
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:
CWALT, Inc., a Delaware corporation ("CWALT"), proposes to cause to
be issued and to sell to you, as underwriter (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
CWALT or CHL, if any, set forth on the cover page of the Prospectus Supplement
(as defined below), collectively, the "Public Certificates") having the
characteristics set forth in the Prospectus Supplement, evidencing ownership
interests in a trust consisting of mortgage notes and the related mortgages
acquired by CWALT (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 CWALT 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 _______1, 200__among CWALT, as
Depositor, Countrywide Home Loans Servicing LP, as master servicer (the
"Master Servicer"), Countrywide Home Loans, Inc. ("CHL"), one or more special
purpose entities established by Countrywide Financial Corporation (together
with CHL, the "Sellers") and The Bank of New York, 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, CWALT 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. CWALT represents and warrants to,
and agrees with, each Underwriter that:
(i) 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
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Act of 1933, as amended (the "Act"). As of the Closing Date (as
hereinafter defined), no stop order suspending the effectiveness of
such registration statement has been issued and no proceedings for
that purpose have been initiated or to CWALT'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 is
proposed to be supplemented by a prospectus supplement dated the date
hereof relating to the Certificates and, as so supplemented, to be
filed with the Commission pursuant to Rule 424 under the Act. (Such
registration statement is hereinafter referred to as the
"Registration Statement"; such prospectus supplement, as first filed
with the Commission, is hereinafter referred to as the "Prospectus
Supplement"; and such prospectus, in the form in which it will first
be filed with the Commission in connection with the offering of the
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
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prospectus or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date on
which the Registration Statement became effective or the issue date
of any preliminary prospectus 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.
(ii)The Registration Statement and the Prospectus, as of the
date of the Prospectus Supplement will conform, and the Registration
Statement and the Prospectus as revised, amended or supplemented and
filed with the Commission prior to the termination of the offering of
the Public Certificates, as of their respective effective or issue
dates, will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder
applicable to such documents as of such respective dates, and the
Registration Statement and the Prospectus as revised, amended or
supplemented 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, 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
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statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that CWALT 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 CWALT by or on
behalf of any Underwriter 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 and Contribution Agreement, dated the date hereof
(the "Indemnification Agreement"), among CWALT, CHL and the other
parties named therein.
(iii) The Public Certificates will conform in all material
respects to the description thereof contained in the Prospectus, and
each of the Certificates, when validly authenticated, issued and
delivered in accordance with the Pooling and Servicing Agreement,
will be duly and validly issued and outstanding and entitled to the
benefits of the Pooling and Servicing Agreement. Each Certificate of
the classes 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.
(iv)This Agreement has been duly authorized, executed and
delivered by CWALT. 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
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"Insurance Agreements") between CWALT 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 CWALT and will conform in all material respects to the
descriptions thereof contained in 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 Prospectus Supplement (each a "Supplemental
Transfer Agreement") and the Pooling and Servicing Agreement each
will constitute a legal, valid and binding agreement of CWALT
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.
(v) CWALT has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties and
conduct its business as described in the Prospectus and to enter into
and perform its obligations under the Pooling and Servicing
Agreement, each Supplemental Transfer Agreement, the Indemnification
Agreement, the Insurance Agreements and this Agreement.
(vi)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
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of any material term or provision of the certificate of incorporation
or by-laws of CWALT, and CWALT 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 CWALT is a party or by which it or its properties
are bound, or (ii) any law, decree, order, rule or regulation
applicable to CWALT of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator having jurisdiction over CWALT, or its properties, the
default in or the breach or violation of which would have a material
adverse effect on CWALT or the Certificates or the ability of CWALT
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 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 Agreements or this Agreement will result in such a breach,
violation or default which would have such a material adverse effect.
(vii) 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
CWALT of the transactions contemplated by this Agreement, the
Indemnification Agreement, each
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Supplemental Transfer Agreement, the Insurance Agreements or the
Pooling and Servicing Agreement (other than as required under "blue
sky" or state securities laws, as to which no representations and
warranties are made by CWALT), except such as have been, or will have
been prior to the Closing Date, obtained under the Act, and such
recordations of the assignment of the Mortgage Loans to the Trustee
(to the extent such recordations are required pursuant to the Pooling
and Servicing Agreement) that have not yet been completed.
(viii) There is no action, suit or proceeding before or by any
court, administrative or governmental agency now pending to which
CWALT is a party, or to the best of CWALT's knowledge threatened
against CWALT, 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 CWALT or could reasonably interfere with or materially
and adversely affect the consummation of the transactions
contemplated in the Pooling and Servicing Agreement, the
Indemnification Agreement, each Supplemental Transfer Agreement, the
Insurance Agreements or this Agreement.
(ix)At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) CWALT 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) CWALT will have the
power and authority to
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transfer the Mortgage Loans to the Trust Fund and to transfer the
Certificates to you, (3) upon execution and delivery to the Trustee
of the Pooling and Servicing Agreement, and delivery of the
Certificates to CWALT, 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 any Supplemental Transfer Agreement, (1) CWALT will own
the Mortgage Loans being transferred to the Trust Fund pursuant
thereto, free and clear of any 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) CWALT will have the power and
authority to transfer the Mortgage Loans to the Trust Fund and to
transfer the Certificates to you, (3) upon execution and delivery to
the Trustee of each Supplemental Transfer Agreement, the 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) CWALT will have complied with the requirements
contained in the Pooling and Servicing Agreement for transferring the
related Mortgage Loans.
(x) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Indemnification Agreement, the Pooling and Servicing Agreement, the
Insurance Agreements,
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each Supplemental Transfer Agreement and the Certificates have been
or will be paid by CWALT 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 CWALT in accordance with
the Pooling and Servicing Agreement.
(xi)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 master 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.
(xii) The transfer of the Mortgage Loans to the Trust Fund at
the Closing Date will be treated by CWALT for financial accounting
and reporting purposes as a sale of assets and not as a pledge of
assets to secure debt.
(xiii) CWALT is not doing business with Cuba.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, CWALT
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from CWALT, 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
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pricing letter dated the date hereof between each such Underwriter and CWALT
(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, date and time may be changed by agreement between the
Underwriters and CWALT (such date and time of delivery of and payment for such
Public Certificates being hereinafter referred to as the "Closing Date").
Delivery of the Underwritten Public Certificates shall be made to each of the
Underwriters as against their respective payment of the purchase price
therefor to or upon the order of CWALT 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. CWALT agrees to make the Underwritten Public Certificates
available for inspection, checking and packaging in New York, New York, on the
business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Underwritten Public Certificates for sale as set forth in
the Prospectus and that 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).
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5. Agreements. CWALT agrees with each Underwriter that:
(a) CWALT 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 CWALT 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 CWALT, the threatening of any proceeding for that
purpose. CWALT 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, CWALT 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 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, CWALT 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) CWALT 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.
(d) CWALT will, as between itself and the Underwriters, pay all
expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing, printing
and reproducing the Registration Statement, the Prospectus, the Pooling and
Servicing Agreement and the Certificates, (ii) the cost of delivering the
Underwritten Public Certificates to the Underwriters, insured to your
reasonable satisfaction,
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(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 CWALT of CWALT's
obligations hereunder which are not otherwise specifically provided for in
this subsection. It is understood that, except as provided in this paragraph
(d) and in Section 9 hereof, each Underwriter will pay all of its own
expenses, including (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.
(e) So long as any Certificates are outstanding, upon request of any
Underwriter, CWALT 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 CWALT 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 CWALT or the Master Servicer
without undue expense and without violation of applicable law.
(f) CWALT will file a current report on Form 8-K for purposes of
filing any Computational Materials (as defined in the Indemnification
Agreement) furnished to CWALT by an Underwriter prior to the time of filing of
the Prospectus as provided in Section 5(a) hereof and
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will include therein all Computational Materials so furnished. In addition,
CWALT will file all reports with respect to the Trust Fund required to be
filed under the Exchange Act, as such filing requirements have been modified
by the no-action relief granted to CWMBS, Inc. (SEC No-Action Letter, CWMBS,
Inc. (February 3, 1994)) and to other similar issuers of mortgage and asset
backed securities.
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 CWALT contained herein as of the
date hereof and as of the Closing Date, to the accuracy of the statements of
CWALT made in any officer's certificate pursuant to the provisions hereof, to
the performance in all material respects by CWALT 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 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) CWALT shall have furnished to the Underwriters a certificate,
dated the Closing Date, of CWALT, signed by a vice president of CWALT, 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 CWALT herein are true
and correct in all material respects on and as of the Closing Date
with the same effect
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as if made on the Closing Date, and CWALT 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 (other than any
Computational Materials (as defined in the Indemnification Agreement)
incorporated therein by reference) at the date hereof and at the date
hereof contained or contains any untrue statement of a material fact
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 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
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performed or satisfied at or prior to the Closing Date under this Agreement,
the Indemnification Agreement, the Insurance Agreements and the Pooling and
Servicing Agreement.
(d) CWALT shall have furnished to you an opinion, dated the Closing
Date, of Sidley Xxxxxx Xxxxx & Xxxx LLP, special counsel to CWALT, to the
effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn, no
proceedings for that purpose have been instituted or threatened and
not terminated; and the Registration Statement, the Prospectus and
each amendment or supplement thereto, as of their respective
effective or issue dates (other than the financial and statistical
information contained therein, including that contained in
Computational Materials filed with the Commission in connection with
the Mortgage Pass-Through Certificates of the series specified on the
signature page hereof), 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 exhibits to the Registration Statement
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto;
(iii) Assuming that this Agreement and the Pooling and Servicing
Agreement have each been duly authorized, executed and delivered by
the parties thereto, each constitutes a valid, legal and binding
agreement of CWALT, the
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Master Servicer and the Sellers in the case of the Pooling and
Servicing Agreement, and of CWALT in the case of this Agreement and
the Insurance Agreements enforceable against CWALT, the Master
Servicer or the Sellers, 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 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;
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(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 one or more "real estate mortgage
investment conduits" ("REMICs") 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
REMIC, and (c) the Class A-R Certificates will be treated as the sole
class of residual interest in the REMIC.
Such counsel shall also state that nothing has come to its attention
that would lead such counsel to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus, as of
the date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue 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
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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, the corporate laws of the State of Delaware 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) CWALT shall have furnished to the Underwriters an opinion, dated
the Closing Date, of counsel to CWALT (who may be an employee of CWALT or of
an affiliate of CWALT), to the effect that:
(i) CWALT has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware
and is duly qualified to do business in, and is in good standing as a
foreign corporation under the laws of, the State of California;
(ii)The Certificates have been duly authorized and executed and,
assuming authentication and delivery in the manner contemplated in
the Pooling and Servicing Agreement, are validly issued and
outstanding, and upon delivery by CWALT 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
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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 CWALT;
(iv)This Agreement, the Insurance Agreements and the
Indemnification Agreement have each been duly authorized, executed
and delivered by CWALT;
(v) No consent, approval, authorization or order of any
California, Delaware or federal governmental agency or body or, to
the best knowledge of such counsel, any California, Delaware or
federal court is required for the consummation by CWALT 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 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
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under, the certificate of incorporation of CWALT, or any indenture or
other agreement or instrument to which CWALT is a party or by which
it is bound, or any California or federal statute or regulation
applicable to CWALT 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
CWALT; and
(vii) There are no legal or governmental actions, investigations
or proceedings pending to which CWALT is a party, or, to the best
knowledge of such counsel, threatened against CWALT, (A) asserting
the invalidity of this Agreement, the Pooling and Servicing
Agreement, the Indemnification Agreement, the Insurance Agreements or
the Certificates, (B) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement,
the Insurance Agreements or the Indemnification Agreement, (C) which
might materially and adversely affect the performance by CWALT 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, 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
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governmental authority has manifested to the legal department of
CWALT 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 CWALT 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 court or governmental agency or body or, to the best
knowledge of such counsel, 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
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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 and 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 by-laws 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 Incorporation State 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 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
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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
Underwriter.
(g) Each party providing credit enhancement to the Certificates shall
have furnished to the Underwriters an opinion, dated the Closing Date, of its
counsel, with respect to the Registration Statement and the Prospectus, and
such other related matters, in the form previously agreed to by such provider
and the Underwriters.
(h) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Public Certificates, the Registration Statement and the
Prospectus, and such other related matters as you may reasonably require.
(i) CWALT's independent accountants, Deloitte & Touche and/or Xxxxx
Xxxxxxxx, shall each have furnished to the Underwriters a letter or letters
addressed to the Underwriters and dated as of or prior to the date of first
use of the Prospectus Supplement in the form and reflecting the performance of
the procedures previously agreed to by CWALT and the Underwriters.
(j) Subsequent to the date hereof, there shall not have occurred any
change, or any development involving a prospective change, in or affecting the
business or properties of
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CWALT 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.
(k) 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).
(l) The Underwriters shall have received copies of any opinions of
counsel to CWALT 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.
(m) 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.
(n) 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.
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(iii) 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.
(iv)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.
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.
(o) CWALT shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably
have requested, and
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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) The Indemnification Agreement shall have been executed and
delivered.
(q) 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.
(r) 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 organized and is validly
existing as a limited partnership in good standing under the laws of
Texas;
(ii)The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Master Servicer;
(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 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
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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 the invalidity of the Pooling and Servicing
Agreement, or (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.
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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 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.
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 CWALT in writing, or by
telephone or telegraph confirmed in writing.
7. Termination. This Agreement shall be subject to termination in
your absolute discretion, by notice given to CWALT 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 CWALT, impracticable to market the Public Certificates
on the terms specified in this Agreement.
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8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
CWALT 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 CWALT, and will
survive delivery of and payment for the Underwritten Public Certificates. The
provisions of Section 5(d) and Section 9 hereof shall survive the termination
or cancellation of this Agreement.
9. Reimbursement of Underwriter Expenses. If for any reason, other
than default by any Underwriter in its obligation to purchase the Underwritten
Public Certificates or termination by any Underwriter pursuant to Section 7
hereof, the Underwritten Public Certificates are not delivered by or on behalf
of CWALT as provided herein, CWALT 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, but CWALT shall then be under no further liability to any
Underwriter with respect to the Underwritten Public Certificates, except as
provided in Section 5(d) hereof.
10. 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
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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 CWALT,
shall be delivered to 0000 Xxxx Xxxxxxx, XX # XX-000, Xxxxxxxxx, Xxxxxxxxxx
00000, attention of General Counsel.
* * *
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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 CWALT and each Underwriter on _______, 200_ relating to
CWALT, Inc. CHL Mortgage Pass-Through Trust ________, Mortgage Pass-Through
Certificates Series _______.
Very truly yours,
CWALT, INC.
By: ___________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted.
By:
----------------------------------
Name:
Title:
Address:
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