EXHIBIT 1.2
CWALT 200_-__
INDEMNIFICATION
AND
CONTRIBUTION AGREEMENT
AGREEMENT, dated ______________, 200_ (this "Agreement"), among
CWALT, Inc., a Delaware corporation ("CWALT"), [Countrywide] (defined below)
and the Broker-Dealers (defined below).
WITNESSETH:
WHEREAS, CWALT and one or more of the Broker-Dealers are parties
to the Underwriting Agreement (defined below), providing for the sale by CWALT
and the purchase, severally and not jointly, by such Broker-Dealers of the
Public Certificates (defined below); and
WHEREAS, CWALT and one or more of the Broker-Dealers are parties
to the Purchase Agreement (defined below), providing for the sale by CWALT and
the purchase, severally and not jointly, of the Private Certificates other
than the Retained Certificates (defined below); and
WHEREAS, as an inducement to the Broker-Dealers to enter into the
Underwriting Agreement and the Purchase Agreement, CWALT and the
Broker-Dealers wish to provide for indemnification and contribution on the
terms and conditions hereinafter set forth; and
WHEREAS, the purchase price to be paid by CWALT to the Sellers
(defined below) for the Mortgage Loans will be the proceeds of the sale by
CWALT to the Broker-Dealers of the Public Certificates and the Private
Certificates other than the Retained Certificates and the delivery of any
Retained Certificates and as an inducement to the Broker-Dealers to enter into
the Underwriting Agreement and the Purchase Agreement, [Countrywide] agrees to
perform certain obligations set forth herein;
NOW, THEREFORE, in consideration of the foregoing and of other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
1.1 Certain Defined Terms.
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The following terms shall have the meanings set forth below, unless the
context clearly indicates otherwise:
ABS ICM: A Free Writing Prospectus that consists of information
contemplated by the definition of ABS informational and computational
materials in Item 1101(a) of Regulation AB under the Act.
Act: The Securities Act of 1933, as amended.
Agreement: This Indemnification and Contribution Agreement, as the
same may be amended in accordance with the terms hereof.
Base Prospectus: The prospectus dated ______________, 200_, as the same
may be amended or supplemented, of CWALT relating to the offering from time to
time of one or more series of mortgage pass-through certificates.
Bloomberg Submission: The material submitted to Bloomberg for ultimate
access by investors.
Broker-Dealer: Each of the signatories to this Agreement other than
CWALT or the Seller.
Certificates: Alternative Loan Trust 200_-__, Mortgage Pass-Through
Certificates, Series 200_-__ of CWALT.
Closing Date: On or about ______________, 200_.
Collateral Strats: Information regarding the Mortgage Loans that is
based on the Seller Mortgage Loan Information.
Computational Materials: A Free Writing Prospectus containing only
information of the type specified in paragraph (5) of the definition of ABS
ICM; provided, however, that Computational Materials do not include any
misstatement or omission or alleged misstatement or omission that results from
a Pool Error.
Contract of Sale: Has the meaning set forth in Rule 159 under the Act.
[Countrywide]: [Countrywide Home Loans, Inc.], a [New York] corporation
and its successors in interest.
CWALT: CWALT, Inc., a Delaware corporation and its successors in
interest.
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CWALT Memorandum Information: All information contained or
incorporated in the Memorandum other than the Purchaser Information.
CWALT Prospectus Information: All information contained or incorporated
in the Prospectus other than the Senior Underwriter Information, the Mezzanine
Underwriter Information and the PO Underwriter Information.
CWALT Registration Information: All information contained or
incorporated in the Registration Statement other than the Senior Underwriter
Information, the Mezzanine Underwriter Information and the PO Underwriter
Information.
Disclosure Package: The Issuer Free Writing Prospectus and the Base
Prospectus collectively.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Final Free Writing Prospectus: The Free Writing Prospectus referred to
in Section 2.3(c) hereof.
Form 8-K: The Current Report on Form 8-K, if any, filed by or on behalf
of CWALT with respect to the Mortgage Loans and including any ABS ICM or
Preliminary Term Sheet furnished by one or more of the Broker-Dealers.
Free Writing Prospectus: The meaning set forth in Rules 405 and 433
under the Act.
Issuer Free Writing Prospectus: The Free Writing Prospectus of CWALT
provided by CWALT to the Underwriters in connection with the Underwritten
Public Certificates.
Memorandum: The Confidential Private Placement Memorandum, if any, dated
the Closing Date, as the same may be amended or supplemented, of CWALT
relating to the Private Certificates.
Mezzanine Certificates: The Class [MF-1], Class [MF-2], Class [MF-3],
Class [MF-__], Class [MF- __], Class [MV-1], Class [MV-2], Class [MV-3], Class
[MV-__] and Class [MV __] Certificates.
Mezzanine Spread: The excess, if any, of (i) the purchase prices paid by
investors to the Mezzanine Underwriter for the Mezzanine Certificates over
(ii) the purchase price paid by the Mezzanine Underwriter to CWALT for the
Mezzanine Certificates pursuant to the Underwriting Agreement.
Mezzanine Underwriter: The Broker-Dealer which is purchasing the
Mezzanine Certificates pursuant to the Underwriting Agreement.
Mezzanine Underwriter Information: The following information: (i) the
only written information furnished by or on behalf of the Mezzanine
Underwriter to CWALT specifically for use in connection with the preparation
of the Registration Statement or the Prospectus, such information being the
information relating to the Mezzanine Underwriter set forth in the
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Prospectus Supplement in the last paragraph of the cover page thereof and
under the caption "Method of Distribution" therein; and (ii) any Computational
Materials prepared by such Underwriter.
Offered Certificates: The Public Certificates and the Private
Certificates.
Pool Error: Any error or omission in the Seller Mortgage Loan
Information.
PO Spread: The excess, if any, of (i) the purchase prices paid by
investors to the PO Underwriter for the Class PO Certificates, over (ii) the
purchase price paid by the PO Underwriter to CWALT for the Class PO
Certificates pursuant to the Underwriting Agreement.
PO Underwriter: The Broker-Dealer, if any, which is purchasing the Class
PO Certificates pursuant to the Underwriting Agreement.
PO Underwriter Information: As to the PO Underwriter, the following
information: (i) the only written information furnished by or on behalf of the
PO Underwriter to CWALT specifically for use in connection with the
preparation of the Registration Statement or the Prospectus, such information
being the information relating to the PO Underwriter set forth in the
Prospectus Supplement in the last paragraph of the cover page thereof and
under the caption "Method of Distribution" therein; and (ii) any Computational
Materials prepared by such Underwriter.
Preliminary Term Sheet: A Free Writing Prospectus that describes the
Certificates and/or the Mortgage Loans and contains information of the type
described in Item 1101(a) (1) - (3) of Regulation AB under the Act but
excluding any Computational Materials.
Private Certificates: The Class [BF], Class [BV], Class [PF], Class
[PV], Class [CF] and Class [CV] Certificates.
Prospectus: The Base Prospectus together with the Prospectus
Supplement.
Prospectus Supplement: The Prospectus Supplement dated the date
hereof, as the same may be amended or supplemented, of CWALT relating to the
offering of the Public Certificates.
Public Certificates: The Senior Certificates and the Mezzanine
Certificates.
Purchase Agreement: The Purchase Agreement, if any, dated the Closing
Date, between CWALT and the Purchaser providing for the purchase and sale of
the Private Certificates.
Purchase Spread: The excess, if any, of (i) the purchase prices paid by
investors to the Purchaser for the Private Certificates over (ii) the purchase
price paid by the Purchaser to CWALT for the Private Certificates pursuant to
the Purchase Agreement.
Purchaser: The Broker-Dealer that is purchasing the Private Certificates
pursuant to the Purchase Agreement.
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Purchaser Information: The only written information furnished by or on
behalf of the Purchaser to CWALT specifically for use in connection with the
preparation of the Memorandum, such information being the information relating
to the Purchaser set forth in the Memorandum under the caption "Method of
Placement."
Registration Statement: As defined in the Underwriting Agreement.
Retained Certificates: None.
Rules and Regulations: The rules and regulations of the Commission
promulgated under the Act.
Sellers: [Countrywide] and [one or more special purpose entities
established by [Countrywide Financial Corporation] or one of its
subsidiaries].
Seller Mortgage Loan Information: Information relating to the Mortgage
Loans furnished by or on behalf of any Seller to any Broker-Dealer.
Senior Certificates: The Class [AF-1A], Class [AF-1B], Class [AF-2],
Class [AF-3], Class [AF-4], Class [AF-5A], Class [AF-5B], Class [AF-__] Class
[2-AV-1], Class [2-AV-2], Class [2-AV-__], Class [3-AV-1], Class [3-AV-2],
Class [3-AV-__] and Class A R Certificates.
Senior Spread: The excess, if any, of (i) the purchase prices paid by
investors to the Senior Underwriters for the Senior Certificates, other than
the Retained Certificates, over (ii) the purchase price paid by the Senior
Underwriters to CWALT for the Senior Certificates pursuant to the Underwriting
Agreement.
Senior Structure: Information contained in a Preliminary Term Sheet or
ABS ICM specifying the paydown rules for the classes and characteristics of
the Senior Certificates.
Senior Underwriters: The Broker-Dealers which are purchasing the Senior
Certificates, other than the Retained Certificates and the Class PO
Certificates, pursuant to the Underwriting Agreement.
Senior Underwriter Information: The following information: (i) only
written information furnished by or on behalf of the Senior Underwriters to
CWALT specifically for use in connection with the preparation of the
Registration Statement or the Prospectus, such information being the
information relating to the Senior Underwriters set forth in the Prospectus
Supplement in the last paragraph of the cover page thereof and under the
caption "Method of Distribution" therein; and (ii) any Computational Materials
prepared by such Underwriters.
Underwriter: Each Broker-Dealer other than the Purchaser.
Underwriting Agreement: The Underwriting Agreement, dated the date
hereof, among CWALT, the Senior Underwriters, the PO Underwriter and the
Mezzanine Underwriter providing for the purchase and sale of the Public
Certificates, other than the Retained Certificates.
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Written Communication: The meaning set forth in Rule 405 under the Act.
1.2 Other Terms.
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Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Underwriting Agreement or the Purchase
Agreement, as applicable.
1.3 Interpretive Principle.
----------------------
A Broker-Dealer may be acting in more than one capacity, e.g., a Senior
Underwriter also may be the PO Underwriter. References herein to a
Broker-Dealer acting in a particular capacity shall refer to such
Broker-Dealer in such capacity only and shall not refer to other capacities,
if any, being served by such Broker-Dealer.
ARTICLE II
Representations and Warranties
2.1 Mutual Representation.
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Each party hereto represents to the other parties hereto that:
(a) the execution, performance and delivery of this Agreement has
been duly authorized by such party;
(b) this Agreement has been duly executed and delivered by such
party; and
(c) this Agreement constitutes the legal and valid obligations of
such party.
2.2 Other Representations.
---------------------
(a) CWALT has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement; and
(b) [Countrywide] has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement.
(c) In relation to each Member State of the European Economic Area
that has implemented the Prospectus Directive (each, a "Relevant Member
State"), each Broker-Dealer represents that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the "Relevant Implementation Date") and with respect to any Class of
Certificates with a minimum denomination of less than $[100,000] that is
purchased by such Broker-Dealer it has not made and will not make an offer of
Certificates of that Class to the public in that Relevant Member State prior
to the publication of a prospectus in relation to the Certificates of that
Class which has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member State, all in
accordance with the Prospectus Directive, except that it may, with effect from
and including the Relevant
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Implementation Date, make an offer of Certificates of that Class to the public
in that Relevant Member State at any time:
(i) to legal entities which are authorized or regulated to operate
in the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of at least [250] employees during the last fiscal year; (2) total
assets of more than (euro)[43,000,000] and (3) an annual net revenue of
more than (euro)[50,000,000], as shown in its last annual or
consolidated financial statements; or
(iii) in any other circumstances that do not require the
publication by the Depositor of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an "offer of
Certificates of that Class to the public" in relation to any Class of
Certificates, which Class has a minimum denomination of less than $[100,000],
in any Relevant Member State means the communication in any form and by any
means of sufficient information on the terms of the offer and the Certificates
to be offered so as to enable an investor to decide to purchase or subscribe
the Certificates of that Class, as the same may be varied in that Member State
by any measure implementing the Prospectus Directive in that Member State, and
the expression "Prospectus Directive" means Directive 2003/71/EC and includes
any relevant implementing measure in each Relevant Member State.
2.3 Marketing.
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(a) Each Underwriter represents to and agrees with CWALT as
follows:
(i) Prior to entering into any Contract of Sale, the Underwriter
shall convey the Disclosure Package to each prospective investor. The
Underwriter shall keep sufficient records to document its conveyance of
the Disclosure Package to each potential investor prior to the related
Contract of Sale.
(ii) An Underwriter may convey ABS ICM or a Preliminary Term Sheet
to a potential investor prior to entering into a Contract of Sale with
such investor; provided, however, that such Underwriter shall not enter
into a Contract of Sale with such investor unless the Underwriter has
complied with paragraph (i) above prior to such Contract of Sale. In
addition, if such ABS ICM or Preliminary Term Sheet contains any
information regarding the transaction other than the Senior Structure,
Bloomberg Submissions, Collateral Strats or Computational Materials
(such ABS ICM or Preliminary Term Sheet, a "Traditional Term Sheet"),
such Underwriter: (x) shall deliver a copy of the proposed Traditional
Term Sheet to CWALT and its counsel at least [one] business day prior to
the anticipated first use; (y) shall not convey any such Traditional
Term Sheet to which CWALT or its counsel reasonably objects, and (z)
shall convey such Traditional Term Sheet in final form to counsel for
CWALT and to each potential investor in the class or classes of Public
Certificates to which such Traditional Term Sheet relates.
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(iii) An Underwriter may convey Computational Materials (x) to a
potential investor prior to entering into a Contract of Sale with such
investor; provided, however, that such Underwriter shall not enter into
a Contract of Sale with such investor unless the Underwriter has
complied with paragraph (i) above prior to such Contract of Sale and
such Computational Materials shall be conveyed separate and apart from
any Preliminary Term Sheet and (y) to an investor after a Contract of
Sale provided that the Underwriter has complied with paragraph (i) above
in connection with such Contract of Sale. The Underwriter shall keep
sufficient records of any conveyance of Computational Materials to
potential or actual investors and shall maintain such records as
required by the Rules and Regulations.
(iv) Each ABS ICM or Preliminary Term Sheet, other than a
Bloomberg Submission, shall contain legends that are substantially
similar to the following:
The information in this free writing prospectus is preliminary.
This free writing prospectus is being delivered to you solely to provide
you with information about the offering of the securities referred to in
this free writing prospectus and to solicit an offer to purchase the
securities, when, as and if issued. Any such offer to purchase made by
you will not be accepted and will not constitute a contractual
commitment by you to purchase any of the securities until we have
accepted your offer to purchase. You may withdraw your offer to purchase
securities at any time prior to our acceptance of your offer.
The asset-backed securities referred to in this free writing
prospectus are being offered when, as and if issued. In particular, you
are advised that asset-backed securities, and the asset pools backing
them, are subject to modification or revision (including, among other
things, the possibility that one or more classes of securities may be
split, combined or eliminated), at any time prior to issuance or
availability of a final prospectus. As a result, you may commit to
purchase securities that have characteristics that change, and you are
advised that all or a portion of the securities may not be issued that
have the characteristics described in this free writing prospectus. Any
obligation on our part to sell securities to you will be conditioned on
the securities having the characteristics described in this free writing
prospectus. If that condition is not satisfied, we will notify you, and
neither the issuer nor any underwriter will have any obligation to you
to deliver all or any portion of the securities which you have committed
to purchase, and there will be no liability between us as a consequence
of the non-delivery.
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS COMMUNICATION
RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE PROSPECTUS IN THAT
REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE
SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING.
YOU MAY GET THESE DOCUMENTS AT NO CHARGE BY VISITING XXXXX ON THE SEC
WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR
ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO
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SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST IT BY CALLING
TOLL-FREE 1-8[ZZ-ZZZ-ZZZZ].
This free writing prospectus does not contain all information that
is required to be included in the base prospectus and the prospectus
supplement.
The information in this free writing prospectus is preliminary and
is subject to completion or change.
The information in this free writing prospectus, if conveyed prior
to the time of your commitment to purchase, supersedes any similar prior
information contained in any prior free writing prospectus relating to
these securities.
Please click here for a copy of the base prospectus applicable to
this offering. [insert link direct to base as posted on a website, or
link to an embedded pdf copy of the base prospectus].
The information in this free writing prospectus may be based on
preliminary assumptions about the pool assets and the structure. Any
such assumptions are subject to change.
The information in this free writing prospectus may reflect
parameters, metrics or scenarios specifically requested by you. If so,
prior to the time of your commitment to purchase, you should request
updated information based on any parameters, metrics or scenarios
specifically required by you.
Neither the issuer of the securities nor any of its affiliates
prepared, provided, approved or verified any statistical or numerical
information presented in this free writing prospectus, although that
information may be based in part on loan level data provided by the
issuer or its affiliates.
(v) Bloomberg Submissions shall include the third legend in (iv)
above and shall not be required to have any other legends.
(vi) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Act, an Underwriter shall not
convey or deliver any Written Communication to any person in connection
with the initial offering of any Public Certificate, unless such Written
Communication either (a) is made in reliance on Rule 134 under the Act,
(b) constitutes a prospectus satisfying the requirements of Rule 430B
under the Act that has been prepared by CWALT, (c) is the Final Free
Writing Prospectus or (d) is permitted by Section 2.3(a)(i), (ii) or
(iii), subject to compliance with Section 2.3(a)(iii), (iv) and (v).
(vii) Each Underwriter that conveys ABS ICM or a Preliminary Term
Sheet that is not a Traditional Term Sheet delivered to CWALT in
accordance with Section 2.3(a)(ii) hereby represents that such ABS ICM
or Preliminary Term Sheet does not
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contain information that conflicts with the information contained in
the Registration Statement.
(b) CWALT represents to and agrees with each Underwriter as
follows:
1. CWALT shall file any ABS ICM or Preliminary Term Sheets
delivered to its counsel as provided in 2.3(a)(iii) above as and
when required by the Rules and Regulations.
2. CWALT shall not convey any free writing prospectus or
other issuer information other than the Disclosure Package prior
to the availability of the Prospectus Supplement unless it shall
have first delivered it to the Underwriters for their review.
(c) In conjunction with the preparation of the Prospectus
Supplement for printing and distribution, CWALT and the
Underwriters shall prepare a Free Writing Prospectus which will
consist of excerpts from the Prospectus Supplement. CWALT shall
file such Free Writing Prospectus at the time of filing of the
Prospectus Supplement.
ARTICLE III
Indemnification
3.1 Indemnification.
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(a) CWALT agrees to indemnify and hold harmless each Broker-Dealer
and each person who controls a Broker-Dealer within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the Act,
the Exchange Act, or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the CWALT Memorandum Information, the CWALT Prospectus Information, the CWALT
Registration Information, the Disclosure Package or the Seller Mortgage Loan
Information or in any revision or amendment thereof or supplement thereto or
arise out of or are based upon the omission or alleged omission to state in
the CWALT Registration Information, the CWALT Prospectus Information or in any
revision or amendment thereof or supplement thereto a material fact required
to be stated therein or the omission or alleged omission to state a material
fact in the CWALT Memorandum Information, the CWALT Prospectus Information,
the CWALT Registration Information, the Disclosure Package or the Seller
Mortgage Loan Information or in any revision or amendment thereof or
supplement thereto necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by it or him in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that
CWALT shall not be liable to a particular Broker-Dealer or any person who
controls such Broker-Dealer to the extent that any misstatement or alleged
misstatement or omission or alleged omission was made in reliance upon and in
conformity with the Senior Underwriter Information, the PO
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Underwriter Information, the Mezzanine Underwriter Information, the
Purchaser's Information or the Collateral Strats, as applicable. This
indemnity agreement will be in addition to any liability which CWALT may
otherwise have.
(b) Each Broker-Dealer severally agrees to indemnify and hold
harmless CWALT, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWALT within
the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnities from CWALT to each Broker-Dealer; provided, however,
that a Broker-Dealer will be liable in any such case only to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with (i) the Senior
Underwriter Information, in the case of the Senior Underwriters, (ii) the PO
Underwriter Information, in the case of the PO Underwriter, (iii) the
Mezzanine Underwriter Information, in the case of the Mezzanine Underwriter
and (iv) the Purchaser's Information, in the case of the Purchaser. This
indemnity agreement will be in addition to any liability which any
Broker-Dealer may otherwise have.
(c) The Senior Underwriter agrees to indemnify and hold harmless
CWALT, its officers who signed the Registration Statement or any amendment
thereof, its directors, and each person who controls CWALT within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they may become subject
under the Act, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Senior Structure included in ABS ICM or a Preliminary Term Sheet conveyed by
such Senior Underwriter prior to the applicable Contract of Sale.
(d) Each Underwriter severally agrees to indemnify and hold
harmless CWALT, its officers who signed the Registration Statement or any
amendment thereof, its directors, and each person who controls CWALT within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they may become
subject under the Act, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (i) arise out of such Underwriter's failure to
comply with Section 2.3(a)(i) or (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Bloomberg Submissions or in the Collateral Strats included in ABS ICM or a
Preliminary Term Sheet conveyed by such Underwriter prior to the applicable
Contract of Sale; provided, however, that no Underwriter shall be liable to
any of the parties identified above in this sentence to the extent that (i)
any untrue statement or alleged untrue statement of a material fact was made
in reliance upon and in conformity with the Seller Mortgage Loan Information
or the Disclosure Package or (ii) in the case of a Bloomberg Submission, other
than the Senior Structure or any Collateral Strats contained therein, the
Underwriter delivered a copy of such Bloomberg Submission to CWALT and its
counsel at least [one] business day prior to the anticipated first use and
neither CWALT nor its counsel reasonably objected to any information contained
therein.
(e) Promptly after receipt by an indemnified party under this
Section 3.1 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 3.1, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
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indemnifying party will not relieve the indemnifying party from any liability
which it may have to any indemnified party otherwise than under this Section
3.1. In case any such action is brought against any indemnified party and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to elect separate counsel to
assert such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel for each of, and approved by, the
Senior Underwriters, the PO Underwriter, the Mezzanine Underwriter or the
Purchaser, as applicable, in the case of paragraph (a) of this Section 3.1,
representing the related indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action or
(iii) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and except that,
if clause (i) or (iii) is applicable, such liability shall only be in respect
of the counsel referred to in such clause (i) or (iii). No indemnifying party
shall, without the consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
3.2 Contribution.
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(a) If the indemnification provided for in Section 3.1(a)-(b) is
unavailable or insufficient to hold harmless an indemnified party under
Section 3.1(a)-(b), then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in Section 3.1(a) or (b) as
applicable above (i) in such proportion as is appropriate to reflect the
relative benefits received by CWALT on the one hand and the Broker-Dealers on
the other from the offering of the Offered Certificates or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of CWALT on the
one hand and the Broker-Dealers on the other in connection with the statements
or omissions or alleged statements or alleged omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
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considerations. The relative benefits received by CWALT on the one hand and
the Broker-Dealers on the other shall be in such proportion so that the
Broker-Dealers are responsible for an amount equal to the sum of the Senior
Spread, the PO Spread, the Mezzanine Spread and the Purchase Spread and CWALT
is responsible for the balance. The relative benefits received by the Senior
Underwriters, the PO Underwriter, the Mezzanine Underwriter and the Purchaser
shall be the Senior Spread, in the case of the Senior Underwriters, the PO
Spread, in the case of the PO Underwriter, the Mezzanine Spread, in the case
of the Mezzanine Underwriter, and the Purchase Spread, in the case of the
Purchaser. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omissions or alleged omission to state a material fact relates to
information supplied by CWALT or by the Broker-Dealers and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 3.2 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which
is the subject of this Section 3.2. A Broker-Dealer shall not be required to
contribute any amount in excess of (x) the Senior Spread, in the case of the
Senior Underwriters, the PO Spread, in the case of the PO Underwriter, the
Mezzanine Spread, in the case of the Mezzanine Underwriter, or the Purchase
Spread, in the case of the Purchaser over (y) the amount of any damages which
the applicable Broker-Dealer has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
obligation of any Broker-Dealer to contribute under this Section 3.2 is
several in proportion to the Senior Spread, the PO Spread, the Mezzanine
Spread and the Purchase Spread, respectively. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(b) If the indemnification provided for in Section 3.1(c) or (d),
as applicable is unavailable or insufficient to hold harmless an indemnified
party under Section 3.1(c) or (d), as applicable, then the applicable
Underwriter shall contribute to the amount paid or payable by CWALT as a
result of the losses, claims, damages or liabilities referred to in Section
3.1(c) or (d), as applicable above (i) in such proportion as is appropriate to
reflect the relative benefits received by CWALT on the one hand and such
Underwriter on the other from the offering of the Public Certificates or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of CWALT
on the one hand and the applicable Underwriter on the other in connection with
the statements or omissions or alleged statements or alleged omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. An Underwriter shall not be required to
contribute any amount in excess of (x) the Senior Spread, the Mezzanine Spread
or the PO Spread, as applicable, over (y) the amount of any damages which the
applicable Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
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3.3 Benefits.
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The obligations of CWALT under this Article III shall be in
addition to any liability which CWALT may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls a
Broker-Dealer within the meaning of the Act; and the obligations of each
Broker-Dealer under this Article III shall be in addition to any liability
which such Broker-Dealer may otherwise have and shall have extended upon the
same terms and conditions, to the officers of CWALT who signed the
Registration Statement or any amendment thereof, to its directors, and to each
person who controls CWALT within the meaning of either the Act or the Exchange
Act.
3.4 [Countrywide] Obligation.
------------------------
[Countrywide] agrees with each Broker-Dealer, for the sole and exclusive
benefit of such Broker-Dealer and each person who controls a Broker-Dealer
within the meaning of either the Act or the Exchange Act and not for the
benefit of any assignee thereof or any other person or persons dealing with
such Broker-Dealer, to indemnify and hold harmless each Broker-Dealer and each
person who controls a Broker-Dealer within the meaning of either the Act or
the Exchange Act against any failure by CWALT to perform any of its
obligations under this Agreement. [Countrywide] agrees that there are no
conditions precedent to the obligations of [Countrywide] hereunder other than
written demand to CWALT to perform its obligations under this Agreement.
ARTICLE IV
Expenses
4.1 Other Expenses.
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Any costs and expenses incurred in connection with the qualification of
any of the Offered Certificates under the "blue sky" or securities laws of any
state shall be paid by the Broker-Dealer requesting such action. Unless
otherwise agreed to among the Broker-Dealers, any advertising or "tombstone"
expenses shall be paid by the Broker-Dealer incurring the same. Each
Broker-Dealer shall be responsible for all other costs and expenses incurred
by it in connection with the purchase and sale of the Offered Certificates.
4.2 OID Calculations.
----------------
If a Broker-Dealer fails to provide CWALT with original issue discount
("OID") calculations within [five] business days after the Closing Date for
any Certificates purchased by such Broker-Dealer, such Broker-Dealer agrees to
reimburse the Trust Fund for any penalties actually imposed on the Trust Fund
resulting from not having the OID information or for having such information
late.
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ARTICLE V
General
5.1 Survival.
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This Agreement and the obligations of the parties hereunder shall
survive the purchase and sale of the Offered Certificates and any termination
of the Underwriting Agreement and/or the Purchase Agreement.
5.2 Successors.
----------
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Article III hereof and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
5.3 Applicable Law.
--------------
This Agreement will be governed by and construed in accordance with the
laws of the State of New York, disregarding principles of conflict of laws.
5.4 Miscellaneous.
-------------
Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, which taken together shall constitute one and the same
instrument.
5.5 Notices.
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All communications hereunder shall be in writing and effective only on
receipt and, if sent to a Broker-Dealer, shall be delivered to the address
specified on the signature page hereof; or if sent to CWALT, shall be
delivered to [4500 Park Granada, M.S. XX-000, Xxxxxxxxx, Xxxxxxxxxx 00000,
attention of General Counsel].
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorized officers on the date first above written.
CWALT, INC.
By:____________________________
Name:
Title:
Address:
[COUNTRYWIDE HOME LOANS, INC.]
By:___________________________
Name:
Title:
Address:
_________________________________
By:____________________________
Name:
Title:
Address:
