EXHIBIT 1.1(a)
CWHEQ, INC.
Asset-Backed Certificates, Series 200_-_
UNDERWRITING AGREEMENT
----------------------
Dated the date specified on the
signature page hereof
The Firm or Firms
of Underwriters named
on the signature page hereof
Ladies and Gentlemen:
CWHEQ, Inc., a Delaware corporation ("CWHEQ"), proposes to cause to
be issued and to sell, severally and not jointly, to you, as underwriter
(each, an "Underwriter"), the principal amount of each class of Asset-Backed
Certificates of the series specified on the signature page hereof and
described in Section 2 hereof (the "Underwritten Offered Certificates" and,
together with any certificates of such series retained by CWHEQ or Countrywide
Home Loans, Inc. ("CHL"), if any, set forth on the cover page of the
Prospectus Supplement (as defined below), collectively, the "Offered
Certificates") having the characteristics set forth in the Prospectus
Supplement, evidencing ownership interests in a trust consisting of mortgage
loans acquired by CWHEQ and secured by [first or second] liens on one- to
four-family residential properties (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 CWHEQ in its sole
discretion.
The Certificates are to be issued under a pooling and servicing
agreement (the "Pooling and Servicing Agreement"), dated as of _____________,
200_ (the "Cut-off Date"), among CWHEQ, as Depositor, CHL and one or more
special purpose entities established by Countrywide Financial Corporation,
(together with CHL, the "Sellers")], as sellers, [Countrywide Home Loans
Servicing LP], as master servicer (the "Master Servicer"), ______________, as
trustee (the "Trustee") and _________________________________, as co-trustee
(the "Co-Trustee") as specified in the Prospectus Supplement. The Offered
Certificates of each class will be issued in the minimum denominations and
will have the terms set forth in the Prospectus Supplement. The Pooling and
Servicing Agreement, the indemnification agreement, dated the date hereof (the
"Indemnification Agreement"), among CWHEQ, CHL and the other parties named
therein, this Agreement, the insurance agreement, if any (the "Insurance
Agreement"), among CWHEQ, the third party credit enhancement provider and any
other parties named therein, and each subsequent transfer agreement, if any
(each, a "Subsequent Transfer Agreement"), pursuant to which Mortgage Loans
are transferred to the Trust Fund after the Closing Date, are each sometimes
referred to as an "Operative Agreement". Capitalized terms used but not
otherwise defined herein shall have the respective meanings ascribed thereto
in the Pooling and Servicing Agreement.
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1. Representations and Warranties. CWHEQ represents and warrants to,
and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. ___-______),
including a prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and, as amended, has become effective under
the Securities Act of 1933, as amended (the "Act"). As of the 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 CWHEQ's knowledge, threatened by
the Commission. The prospectus in the form in which it will be used in
connection with the offering of the Offered 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 Offered 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"). For purposes of this Agreement, the term "Basic
Prospectus" shall mean the Prospectus, in the form in which it was filed
with the Commission and declared effective on _________, 200_. 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
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filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date on which the Registration
Statement, as amended, became effective or the issue date of such
preliminary prospectus or the date on which the Prospectus is filed
pursuant to Rule 424 (b) under the Act, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date on which the Registration
Statement became effective or the issue date of any preliminary
prospectus or the date on which the Prospectus is filed pursuant to Rule
424(b) under the Act, as the case may be, deemed to be incorporated
therein by reference.
(b) The Registration Statement and the Basic Prospectus, as of the
time the Registration Statement became effective did, and 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 prior to the
termination of the offering of the Offered 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 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
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therein not misleading; and the Prospectus as of the date of the
Prospectus Supplement, and the Prospectus as revised, amended or
supplemented prior to the Closing Date, as of the Closing Date, will not
include any untrue statement of a material fact and will not omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that CWHEQ makes no
representations, warranties or agreements as to (i) the Underwriter
Information contained in or omitted from the Prospectus or any revision
or amendment thereof or supplement thereto, such Underwriter Information
being defined in the Indemnification Agreement.
(c) The 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, if any,
indicated to be "mortgage related securities" under the heading
"Summary--Legal Investment Considerations" 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.
(d) Each of this Agreement and the Indemnification Agreement has
been duly authorized, executed and delivered by CWHEQ. As of the Closing
Date, each other Operative Agreement will have been duly authorized,
executed and delivered by CWHEQ and will conform in all material respects
to the description of such Operative Agreement contained in the
Prospectus and, assuming the valid execution and delivery thereof by the
other parties thereto, each Operative Agreement will constitute a legal,
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valid and binding agreement of CWHEQ enforceable in accordance with its
terms, except as the same may be limited (a) by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally, (b) by general principles of equity and (c) by public policy
limitations under applicable securities laws as to rights of
indemnification and contribution thereunder.
(e) CWHEQ has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform its
obligations under the Operative Agreements.
(f) 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 any Operative Agreement, will conflict
with or result in the breach of any material term or provision of the
certificate of incorporation or bylaws of CWHEQ, and CWHEQ is not in
breach or violation of or in default (nor has an event occurred which
with notice or lapse of time or both would constitute a default) under
the terms of (i) any indenture, contract, lease, mortgage, deed of trust,
note, agreement or other evidence of indebtedness or other agreement,
obligation or instrument to which CWHEQ is a party or by which it or its
properties are bound, or (ii) any law, decree, order, rule or regulation
applicable to CWHEQ of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or arbitrator
having jurisdiction over CWHEQ, or its properties, the default in or the
breach or violation of which would have a material adverse effect on
CWHEQ or the Certificates or the ability of CWHEQ to perform its
obligations under any Operative Agreement; and neither the delivery of
the Certificates,
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nor the consummation of any other of the transactions contemplated
herein, nor the compliance with the provisions of the Operative
Agreements will result in such a breach, violation or default which would
have such a material adverse effect.
(g) 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 CWHEQ of the
transactions contemplated by the Operative Agreements (other than as
required under "blue sky" or state securities laws, as to which no
representations and warranties are made by CWHEQ), except such as have
been, or will have been prior to the Closing Date, obtained under the
Act, and such recordations of the assignment of the Mortgage Loans to the
Trustee or the Co-Trustee, as applicable (to the extent such recordations
are required pursuant to the Pooling and Servicing Agreement) that have
not yet been completed.
(h) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which CWHEQ or any
of its affiliates is a party, or to the best of CWHEQ's knowledge
threatened against CWHEQ or any of its affiliates, which could reasonably
result individually or in the aggregate in any material adverse change in
the condition (financial or otherwise), earnings, affairs, regulatory
situation or business prospects of CWHEQ or could reasonably interfere
with or materially and adversely affect the consummation of the
transactions contemplated in the Operative Agreements.
(i) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) CWHEQ will own the Mortgage Loans being
transferred to the Trust
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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) CWHEQ will have the power and authority to transfer the
Mortgage Loans to the Trust Fund and to transfer the Underwritten Offered
Certificates to the Underwriters and to transfer the remaining
Certificates to CHL, (3) upon execution and delivery to the Trustee or
the Co-Trustee, as applicable, of the Pooling and Servicing Agreement,
and delivery of the Certificates to CWHEQ, the Trust Fund will own the
Mortgage Loans free of Liens, other than Liens permitted by the Pooling
and Servicing Agreement, and (4) upon payment and delivery of the
Underwritten Offered Certificates to you, you will acquire ownership of
the Underwritten Offered Certificates, free of Liens, other than Liens
permitted by the Pooling and Servicing Agreement or created or granted by
you.
(j) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Operative Agreements and
the Certificates have been or will be paid by CWHEQ at or prior to the
Closing Date, except for fees for recording assignments of the Mortgage
Loans to the Trustee or the Co-Trustee, as applicable, pursuant to the
Pooling and Servicing Agreement that have not yet been completed, which
fees will be paid by or on behalf of CWHEQ in accordance with the Pooling
and Servicing Agreement.
(k) The Master Servicer is qualified to do business in all
jurisdictions in which its activities as servicer of the Mortgage Loans
require such qualification except where
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failure to be so qualified will not have a material adverse effect on
such servicing activities.
(l) CWHEQ is not doing business with Cuba.
(m) CWHEQ is not in violation of its certificate of incorporation or
bylaws or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which it is
a party or by which it or its properties may be bound, which default
might result in any material adverse change in the financial condition,
earnings, affairs or business of CWHEQ or which might materially and
adversely affect the properties or assets thereof.
(n) Neither CWHEQ nor the Trust Fund created by the Pooling and
Servicing Agreement will be subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended (the "1940
Act").
(o) CWHEQ possesses all material licenses, certificates, authorities
or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct the business now operated by it
and as described in the Prospectus, and CWHEQ has received no notice of
proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would materially and adversely affect the business, operations, financial
condition or earnings of CWHEQ.
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2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, CWHEQ
agrees to sell, and each Underwriter agrees, severally and not jointly, to
purchase from CWHEQ, the respective original Certificate Principal Balance of
each Class of Underwritten Offered Certificates to be purchased by such
Underwriter as specified in the Prospectus Supplement. The purchase price at
which each Underwriter will purchase its Underwritten Offered Certificates
shall be as described under the heading "Method of Distribution" in the
Prospectus Supplement.
3. Delivery and Payment. The Underwritten Offered 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 CWHEQ (such date and time of delivery of and
payment for such Underwritten Offered Certificates being hereinafter referred
to as the "Closing Date"). Delivery of the Underwritten Offered 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 CWHEQ in immediately
available federal funds. The Underwritten Offered 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. CWHEQ agrees to
make the Underwritten Offered 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 Offered Certificates for sale as set forth
in the Prospectus and that the Underwriters will not offer, sell or otherwise
distribute the Underwritten Offered Certificates (except for the sale thereof
in exempt transactions) in any state in which the Underwritten
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Offered Certificates are not exempt from registration under "blue sky" or
state securities laws (except where the Underwritten Offered Certificates will
have been qualified for offering and sale at the Underwriters' direction under
such "blue sky" or state securities laws).
5. Agreements. CWHEQ agrees with each Underwriter that:
(a) CWHEQ 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 Offered
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 CWHEQ of the suspension of qualification of the Offered 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 CWHEQ, the threatening of any
proceeding for that purpose. CWHEQ will use its best efforts to prevent
the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof. Except as otherwise provided in Section
5(b) hereof, CWHEQ will not file prior to the termination of such
offering any
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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.
(b) If, at any time when a prospectus relating to the Offered
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, CWHEQ promptly will notify each Underwriter and
will, upon the request of any Underwriter, or may, after consultation
with each Underwriter, prepare and file with the Commission a revision,
amendment or supplement which will correct such statement or omission or
effect such compliance, and furnish without charge to each Underwriter as
many copies as such Underwriter may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance.
(c) CWHEQ will furnish to each Underwriter and counsel to the
Underwriters, without charge, conformed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus relating to the Offered 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.
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(d) CWHEQ will, as between itself and the Underwriters, pay all
expenses incidental to the performance of its obligations under this
Agreement, including without limitation (i) expenses of preparing,
printing and reproducing the Registration Statement, the Prospectus, the
Pooling and Servicing Agreement and the Certificates, (ii) the cost of
delivering the Underwritten Offered Certificates to the Underwriters,
insured to the Underwriters' reasonable satisfaction, (iii) the fees
charged by securities rating services for rating the Certificates, (iv)
the fees and expenses of the Trustee or the Co-Trustee, as applicable,
except for fees and expenses of Trustee's or the Co-Trustee's, as
applicable, counsel, which will be borne by the Trustee or the
Co-Trustee, as applicable, and (v) all other costs and expenses
incidental to the performance by CWHEQ of CWHEQ's obligations hereunder
which are not otherwise specifically provided for in this subsection. It
is understood that, except as provided in this paragraph (d) and in
Section 9 hereof, each Underwriter will pay all of its own expenses,
including the fees of any counsel to such Underwriter.
(e) So long as any Certificates are outstanding, upon request of any
Underwriter, CWHEQ will, or will cause the Master Servicer to, furnish to
such Underwriter, as soon as available, a copy of (i) the annual
statement of compliance delivered by the Master Servicer to the Trustee
or the Co-Trustee, as applicable, under the Pooling and Servicing
Agreement, (ii) the annual independent public accountants' servicing
report furnished to the Trustee or the Co-Trustee, as applicable,
pursuant to the Pooling and Servicing Agreement, (iii) each report of
CWHEQ 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
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which may be furnished by CWHEQ or the Master Servicer without undue
expense and without violation of applicable law.
(f) CWHEQ will file a current report on Form 8-K for purposes of
filing any Collateral Term Sheets, Computational Materials, Series Term
Sheets, or Structural Term Sheets (as such terms are defined in the
Indemnification Agreement) furnished to CWHEQ by an Underwriter prior to
the time of filing of the Prospectus as provided in Section 5(a) hereof
and will include therein all such materials so furnished.
(g) CWHEQ will timely file all reports with respect to the Trust
Fund required to be filed under the Exchange Act, as such requirements
may be modified by any No-Action relief granted to CWHEQ.
6. Conditions to the Obligations of Underwriters. The obligation of
each Underwriter to purchase the Underwritten Offered Certificates to be
purchased by it as indicated in the Prospectus Supplement shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of CWHEQ contained herein as of the date hereof and as of the Closing
Date, to the accuracy of the statements of CWHEQ made in any officer's
certificate pursuant to the provisions hereof, to the performance in all
material respects by CWHEQ of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted and be pending or shall have been threatened,
and the Prospectus shall have been filed or transmitted for filing with
the Commission not later than required pursuant to the rules and
regulations of the Commission.
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(b) CWHEQ shall have furnished to the Underwriters a certificate,
dated the Closing Date, of CWHEQ, signed by a vice president of CWHEQ, to
the effect that the signer of such certificate has carefully examined the
Registration Statement, the Prospectus and this Agreement and that:
(i) The representations and warranties of CWHEQ herein are
true and correct in all material respects on and as of the Closing Date
with the same effect as if made on and as of the Closing Date, and CWHEQ
has complied with all agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to such Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been instituted and are pending or, to his knowledge, have
been threatened as of 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 thereof contained or at
the Closing Date contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) CHL shall have furnished to the Underwriters a certificate,
dated the Closing Date, of CHL, signed by a vice president or an
assistant vice president of CHL, to the effect that (i) the signer of
such certificate has carefully examined the Prospectus and nothing has
come to the attention of such person that would lead him to believe that
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the Prospectus contains any untrue statement of a material fact with
respect to CHL or the Mortgage Loans or omits to state any material fact
with respect to CHL or the Mortgage Loans necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading and (ii) CHL has complied with all agreements and
satisfied all the conditions on its part to be performed or satisfied at
or prior to the Closing Date under this Agreement, the Insurance
Agreements, the Indemnification Agreement, and the Pooling and Servicing
Agreement.
(d) CWHEQ shall have furnished to you an opinion, dated the Closing
Date, of Sidley Xxxxxx Xxxxx & Xxxx LLP, special counsel to CWHEQ, to the
effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement has
been issued and not withdrawn, no proceedings for that purpose have been
instituted or threatened and not terminated; and the Registration
Statement, the Prospectus and each amendment or supplement thereto, as of
their respective effective or issue dates (other than (a) the financial
and statistical information contained therein as to which such counsel
need express no opinion, (b) any description in the Prospectus of any
third party providing credit enhancement to the Certificates, as to each
of which such counsel expresses no opinions and (c) the Underwriter
Information), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder;
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(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, the Insurance Agreements,
the Indemnification 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 CWHEQ,
and of CHL in the case of the Pooling and Servicing Agreement, the
Insurance Agreements and the Indemnification Agreement enforceable
against CWHEQ or CHL, as applicable, in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and to general principles of equity regardless of whether enforcement is
sought in a proceeding in equity or at law and subject to limitations of
public policy under applicable securities laws as to rights of indemnity
and contribution thereunder;
(iv) Assuming that the Certificates have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement and delivered and in the case of the
Underwritten Offered Certificates paid for by the Underwriters as
provided in this Agreement, the Certificates will be validly issued and
outstanding and entitled to the benefits of the Pooling and Servicing
Agreement;
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(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 and the Prospectus
Supplement, as the case may be, under the headings "Material Federal
Income Tax Consequences," "ERISA Considerations" and "Summary-Legal
Investment," to the extent that they constitute matters of New York or
federal law or legal conclusions with respect thereto, have been reviewed
by such counsel and are correct in all material respects;
(vii) The 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 1940 Act; and
(viii) Each REMIC described in the Pooling and Servicing
Agreement will qualify as a real estate mortgage investment conduit
within the meaning of Section 860D of the Internal Revenue Code of 1986,
as amended (the "Code"), assuming: (i) an election is made to treat the
assets of each REMIC as a real estate mortgage investment conduit, (ii)
compliance with the Pooling and Servicing Agreement and (iii) compliance
with changes in the law, including any amendments to the Code or
applicable Treasury regulations thereunder.
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
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the date of the Prospectus Supplement, and on the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to (i) financial and
statistical information contained therein or (ii) any description in the
Prospectus of any third party providing credit enhancement to the
Certificates.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling and
Servicing Agreement. Such opinion may be qualified as an opinion only on the
laws of the State of New York and the federal law of the United States. To the
extent that such firm relies upon the opinion of other counsel in rendering
any portion of its opinion, the opinion of such other counsel shall be
attached to and delivered with the opinion of such firm that is delivered to
the Underwriters.
(e) CWHEQ shall have furnished to the Underwriters an opinion, dated
the Closing Date, of counsel to CWHEQ (who may be an employee of CWHEQ or
of an affiliate of CWHEQ), to the effect that:
(i) CWHEQ has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and
is duly qualified to do business in, and is in good standing as a foreign
corporation under the laws of, the State of California;
(ii) The Certificates have been duly authorized and executed
and, assuming authentication and delivery in the manner contemplated in
the Pooling
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and Servicing Agreement, are validly issued and outstanding, and upon
delivery by CWHEQ of the Certificates to be purchased by the
Underwriters, the Underwriters will acquire such Certificates free and
clear of any lien, pledge, encumbrance or other security interest;
(iii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by CWHEQ;
(iv) This Agreement, the Insurance Agreements, and the
Indemnification Agreement have each been duly authorized, executed and
delivered by CWHEQ;
(v) No consent, approval, authorization or order of any
California or federal court or governmental agency or body or to the best
of its knowledge of such counsel any order or decree of a California or
federal court is required for the consummation by CWHEQ of the
transactions contemplated by the terms of any Operative 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 or the Co-Trustee, as applicable, (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 Operative Agreements do
not conflict with or result in a
20
breach or violation of any material term or provision of, or constitute a
default under, the certificate of incorporation of CWHEQ, or any
indenture or other agreement or instrument to which CWHEQ is a party or
by which it is bound, or any California or federal law, statute,
regulation, order or decree applicable to CWHEQ or to the best of its
knowledge an order of any California or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over
CWHEQ; and
(vii) There are no legal or governmental actions,
investigations or proceedings pending to which CWHEQ is a party, or, to
the best knowledge of such counsel, threatened against CWHEQ, (A)
asserting the invalidity of any Operative Agreement or the Certificates,
(B) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by any Operative
Agreement, (C) which might materially and adversely affect the
performance by CWHEQ of its obligations under, or the validity or
enforceability of, any Operative Agreement or the Certificates or (D)
seeking to affect adversely the federal income tax attributes of the
Offered Certificates as described in the Prospectus under the heading
"Federal Income Tax Consequences." For purposes of the foregoing, such
counsel may state that it has not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has manifested to the legal
department of CWHEQ a present intention to initiate such proceedings.
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 Operative Agreements. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
21
than CWHEQ or its affiliates. Such opinion may be qualified as an opinion only
on the laws of the States of Delaware and California and the federal law of
the United States. To the extent that such counsel relies upon the opinion of
other counsel in rendering any portion of its opinion, the opinion of such
other counsel shall be attached to and delivered with the opinion of such
counsel that is delivered to the Underwriters.
(f) 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) Each Operative Agreement to which CHL is a party has been
duly authorized, executed and delivered by CHL;
(iii) No consent, approval, authorization or order of any New
York or federal court or governmental agency or body is required for the
consummation by CHL of the transactions contemplated by the terms of any
Operative Agreement to which CHL is a party 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 or the Co-Trustee, as
applicable (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;
22
(iv) The consummation of any of the transactions contemplated
by the terms of each Operative Agreement to which CHL is a party do not
conflict with or result in a breach or violation of any material term or
provision of, or constitute a default under, the charter or bylaws of
CHL, or, to the best knowledge of such counsel, any indenture or other
agreement or instrument to which CHL is a party or by which it is bound,
any New York or federal law, statute, regulation, order or decree
applicable to CHL or any order of any New York or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over CHL other than with respect to the right of indemnity
thereunder; 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
any Operative Agreement to which CHL is a party or (B) which might
materially and adversely affect the performance by CHL of its obligations
under, or the validity or enforceability of, any Operative Agreement to
which CHL is a party. For purposes of the foregoing, such counsel may
state that it has not regarded any legal or governmental actions,
investigations or proceedings to be "threatened" unless the potential
litigant or governmental authority has manifested to the legal department
of CHL a present intention to initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the
23
parties thereto other than CHL. 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.
(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, the
Prospectus, the credit enhancement instrument 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 Underwritten Offered Certificates, the Registration
Statement and the Prospectus, and such other related matters as the
Underwriters may reasonably require.
(i) KPMG LLP or such other accountants for CWHEQ as shall be
designated by CWHEQ, 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
CWHEQ 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 CWHEQ or any of its affiliates
which in your reasonable judgment
24
materially impairs the investment quality of the Underwritten Offered
Certificates so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Underwritten Offered
Certificates as contemplated by the Prospectus.
(k) The Offered 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 CWHEQ supplied to the rating organizations relating to certain
matters with respect to the Offered 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 Offered Certificates being publicly offered by
the Underwriters shall have been issued and paid for pursuant to the
terms of this Agreement.
(n) The Trustee and the Co-Trustee, if any, shall have furnished to
the Underwriters an opinion dated the Closing Date, of counsel to the
Trustee or the Co-Trustee, as applicable (who may be an employee of the
Trustee or the Co-Trustee, as applicable), in form and substance
satisfactory to the Underwriters and their counsel.
(o) CWHEQ shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may
reasonably have
25
requested, and all proceedings in connection with the transactions
contemplated by this Agreement and all documents incident hereto shall be
in all material respects reasonably satisfactory in form and substance to
the Underwriters and their counsel.
(p) As of the Closing Date, each Operative Agreement (other than any
Subsequent Transfer Agreement) will have been duly authorized, executed
and delivered by, and will constitute a legal, valid and binding
obligation of CWHEQ, the Master Servicer and CHL, as applicable,
enforceable against such parties in accordance with their terms, subject
to applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting creditors' rights generally and as to
enforceability, to general principles of equity (regardless of which
enforcement is sought in a proceeding in equity or at law) and subject to
limitations of public policy under applicable securities laws as to
rights of indemnity and contribution thereunder.
(q) As of the Closing Date, the credit enhancement instrument shall
have been issued by ____________________ and shall have been duly
authenticated by an authorized agent of __________________, as so
required under applicable state law or regulations.
(r) The Master Servicer shall have furnished to the Underwriters an
opinion, dated the applicable 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 the
State of ____________;
26
(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 is required
for the consummation by the Master Servicer of the transactions
contemplated by the terms of any Operative Agreement to which the Master
Servicer is a party except any such as may be required under the "blue
sky" or state securities laws of any jurisdiction in connection with the
offering, sale or acquisition of the Certificates, any recordations of
the assignment of the Mortgage Loans evidenced by the Certificates to the
Trustee (to the extent such recordations are required pursuant to the
Pooling and Servicing Agreement) that have not yet been completed and any
approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated
by the terms of each Operative Agreement to which the Master Servicer is
a party do not conflict with or result in a breach or violation of any
material term or provision of, or constitute a default under, the
certificate of limited partnership or the partnership agreement of the
Master Servicer, or, to the best knowledge of such counsel, any indenture
or other agreement or instrument to which the Master Servicer is a party
or by which it is bound, any California or federal law, statute,
regulation order or decree applicable to the Master Servicer or any order
or decree of any California or federal court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Master Servicer other than with respect to the right of indemnity
thereunder; and
27
(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 any Operative Agreement to
which the Master Servicer is a party or (B) which might materially and
adversely affect the performance by the Master Servicer of its
obligations under, or the validity or enforceability of, any Operative
Agreement to which the Master Servicer is a party. For purposes of the
foregoing, such counsel may state that it has not regarded any legal or
governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested to
the legal department of the Master Servicer a present intention to
initiate such proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Operative Agreements. Such
opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than CWHEQ or its affiliates. Such opinion may be qualified as an opinion only
on the laws of the States of Delaware and California and the federal law of
the United States. To the extent that such counsel relies upon the opinion of
other counsel in rendering any portion of its opinion, the opinion of such
other counsel shall be attached to and delivered with the opinion of such
counsel that is delivered to the Underwriters.
(vi) The underwriters shall have received an opinion as to
certain matters regarding the seller(s) other than CHL in form and
substance reasonably suitable to the underwriters and their counsel.
28
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Agreement, this Agreement and all obligations of an Underwriter hereunder with
respect to a particular offering may be canceled at, or at any time prior to,
the Closing Date by such Underwriter. Notice of such cancellation shall be
given to CWHEQ in writing, or by telephone or telegraph confirmed in writing.
7. Termination. This Agreement shall be subject to termination in
the Underwriters' absolute discretion, by notice given to CWHEQ prior to
delivery of and payment for the Underwritten Offered 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 the
Underwriters' judgment after consultation with CWHEQ, impracticable to market
the Offered Certificates on the terms specified in this Agreement.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
CWHEQ and its officers and of each Underwriter set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or CWHEQ, and will
survive delivery of and payment for the Underwritten Offered Certificates. The
provisions of Section 5(d) and Section 9 hereof shall survive the termination
or cancellation of this Agreement.
29
9. Reimbursement of Underwriter Expenses. If for any reason, other
than default by any Underwriter in its obligation to purchase the Underwritten
Offered Certificates or termination by any Underwriter pursuant to Section 7
hereof, the Underwritten Offered Certificates are not delivered by or on
behalf of CWHEQ as provided herein, CWHEQ 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
Offered Certificates, but CWHEQ shall then be under no further liability to
any Underwriter with respect to the Underwritten Offered Certificates, except
as provided in Section 5(d) hereof.
10. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for any of the Underwritten
Offered Certificates agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the aggregate principal amount of all the
Underwritten Offered Certificates of the various Classes set forth opposite
their names in the Prospectus Supplement bears to the aggregate principal
amount of all of the Underwritten Offered Certificates of the various Classes
set forth opposite the name of all the remaining Underwriters) the
Underwritten Offered Certificates that the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Underwritten Offered Certificates
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate principal amount of all of the Underwritten
Offered Certificates set forth in the Prospectus Supplement, the remaining
Underwriters shall have the right to purchase all, but shall
30
not be under any obligation to purchase any, of the Underwritten Offered
Certificates, and if such nondefaulting Underwriters do not purchase all the
Underwritten Offered Certificates, this Agreement will terminate without
liability to any nondefaulting Underwriter or CWHEQ. In the event of a default
by any Underwriter as set forth in this Section 10, the Closing Date shall be
postponed for such period, not exceeding seven days, as the nondefaulting
Underwriters shall determine in order that required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to CWHEQ and to
any nondefaulting Underwriter for damages occasioned by its defaulting
hereunder.
11. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters
and CWHEQ, and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements contained in this
Agreement shall also be deemed to be for the benefit of the person or persons,
if any, who control the Underwriters within the meaning of Section 15 of the
Act, and for the benefit of directors of CWHEQ, officers of CWHEQ who have
signed the Registration Statement and any person controlling CWHEQ within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 11, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
12. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
31
13. Miscellaneous. Time shall be of the essence of this Agreement.
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to the subject matter hereof, other than the
Indemnification Agreement. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a writing signed by the
party against whom enforcement of such change, waiver, discharge or
termination is sought. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
14. Notices. All communications hereunder shall be in writing and
effective only on receipt and, if sent to an Underwriter, shall be delivered
to the address specified on the signature page hereof; or if sent to CWHEQ,
shall be delivered to 0000 Xxxx Xxxxxxx, X.X. XX-00, Xxxxxxxxx, Xxxxxxxxxx
00000, attention of Deputy General Counsel for Corporate Finance.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the undersigned a counterpart hereof,
whereupon this Agreement and your acceptance shall represent a binding
agreement by and among CWHEQ and each Underwriter on _________ __, 200_
relating to Asset-Backed Certificates, Series 200_-_.
Very truly yours,
CWHEQ, INC.
By: _________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted.
[UNDERWRITER]
32
By: ____________________________
Name:
Title:
Address:
[UNDERWRITER]
By: ____________________________
Name:
Title:
Address:
[UNDERWRITER]
By: ____________________________
Name:
Title:
Address:
33
