CWABS, INC.
Asset Backed Certificates
UNDERWRITING AGREEMENT
Dated the date
specified on the
signature page
hereof
The Firm or Firms
of Underwriters named
on the signature page hereof
Ladies and Gentlemen:
CWABS, Inc., a Delaware corporation ("CWABS"), 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 Public Certificates" and, together with
any certificates of such series retained by CWABS or the Seller, if any, set
forth on the cover page of the Prospectus Supplement (as defined below),
collectively, the "Public Certificates") having the characteristics set forth in
the Prospectus Supplement, evidencing ownership interests in a trust consisting
[mortgage loans secured by first and/or subordinate interest liens on one- to
four-family mortgage loans][closed-end and/or revolving home equity loans
secured by subordinate liens on one- to four-family residential properties]
acquired by CWABS (the "Mortgage Loans")
and related property, but excluding the Retained Interest (as defined in the
Prospectus Supplement), if any (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 CWABS in its sole discretion.
The Public Certificates, together with the other classes of
certificates of the series specified on Exhibit A hereto (the "Private
Certificates," and collectively with the Public Certificates, the
"Certificates") are to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of the Cut-off Date (as defined in
the Prospectus Supplement), among CWABS, as Depositor, the master servicer and
seller specified in the Prospectus Supplement (the "Seller"), and
[_________________], as trustee (the "Trustee"). The Public Certificates of each
class will be issued in the minimum denominations and will have the terms set
forth in the Prospectus Supplement. Capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed thereto in the
Pooling and Servicing Agreement.
1. Representations and Warranties. CWABS represents
and warrants to, and agrees with, each Underwriter that:
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(i) A registration statement on Form S-3 (File No. 333-08389),
including a prospectus, has been filed with the Securities and Exchange
Commission (the "Commission") and has become effective under the
Securities Act of 1933, as amended (the "Act"). As of the 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 CWABS's knowledge threatened by the
Commission. The prospectus in the form in which it will be used in
connection with the offering of the Public Certificates is proposed to
be supplemented by a prospectus supplement dated the date hereof
relating to the Certificates and, as so supplemented, to be filed with
the Commission pursuant to Rule 424 under the Act. (Such registration
statement is hereinafter referred to as the "Registration Statement";
such prospectus supplement, as first filed with the Commission, is
hereinafter referred to as the "Prospectus Supplement"; and such
prospectus, in the form in which it will first be filed with the
Commission in connection with the offering of the Public Certificates,
including documents incorporated therein as of the time of such filing
and as supplemented by the Prospectus Supplement, is hereinafter
referred to as the "Prospectus"). Any reference herein to the
Registration Statement, a preliminary prospectus or the Prospectus shall
be deemed to refer to and include the documents
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incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on or before the date on which the Registration
Statement, as amended, became effective or the issue date of such
preliminary prospectus or the date on which the Prospectus is filed
pursuant to Rule 424(b) under the Act, as the case may be; and any
reference herein to the terms "amend", "amendment" or supplement with
respect to the Registration Statement, any preliminary prospectus or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the date on which the Registration
Statement became effective or the issue date of any preliminary
prospectus or the date on which the Prospectus is filed pursuant to Rule
424(b) under the Act, as the case may be, deemed to be incorporated
therein by reference.
(ii) The Registration Statement and the Prospectus, as of the date
of the Prospectus Supplement will conform, and the Registration
Statement and the Prospectus as revised, amended or supplemented and
filed with the Commission prior to the termination of the offering of
the Public Certificates, as of their respective effective or issue
dates, will conform in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder
applicable to such documents as of such respective dates, and the
Registration Statement
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and the Prospectus as revised, amended or supplemented and filed with
the Commission as of the Closing Date will conform in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder applicable to such documents as of the Closing
Date. The Registration Statement, at the time it became effective, did
not include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus as of the date of
the Prospectus Supplement, and the Prospectus as revised, amended or
supplemented and filed prior to the Closing Date, as of the Closing
Date, will not include any untrue statement of a material fact and will
not omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that
CWABS makes no representations, warranties or agreements as to the
information contained in or omitted from the Prospectus or any revision
or amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to CWABS by or on
behalf of any Underwriter specifically for use in connection with the
preparation of the Prospectus or any revision or amendment thereof or
supplement thereto, such information being defined in the
Indemnification and Contribution Agreement, dated the date hereof (the
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"Indemnification Agreement"), among CWABS, the Master Servicer and the
other parties named therein.
(iii) The Public Certificates will conform in all material respects
to the description thereof contained in the Prospectus, and each of the
Certificates, when validly authenticated, issued and delivered in
accordance with the Pooling and Servicing Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of the
Pooling and Servicing Agreement. [Each Certificate of the classes
indicated to be "mortgage related securities" under the heading "Summary
of Terms--Legal Investment" in the Prospectus Supplement will, when
issued, be a "mortgage related security" as such term is defined in
Section 3(a)(41) of the Exchange Act.]
(iv) This Agreement has been duly authorized, executed and delivered
by CWABS. As of the Closing Date, the Pooling and Servicing Agreement
will have been duly authorized, executed and delivered by CWABS and will
conform in all material respects to the descriptions thereof contained
in the Prospectus and, assuming the valid execution and delivery thereof
by the other parties thereto, this Agreement and the Pooling and
Servicing Agreement each will constitute a legal, valid and binding
agreement of CWABS enforceable in accordance with its terms, except as
the same may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting
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creditors' rights generally and by general principles of equity.
(v) CWABS has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus and to enter into and perform
its obligations under the Pooling and Servicing Agreement and this
Agreement.
(vi) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement,
the Indemnification Agreement or this Agreement, will conflict with or
result in the breach of any material term or provision of the
certificate of incorporation or by-laws of CWABS, and CWABS 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 CWABS is a party or by
which it or its properties are bound, or (ii) any law, decree, order,
rule or regulation applicable to CWABS of any court or supervisory,
regulatory, administrative or governmental agency, body or authority, or
arbitrator having jurisdiction over CWABS, or its
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properties, the default in or the breach or violation of which would
have a material adverse effect on CWABS or the Certificates or the
ability of CWABS to perform its obligations under the Pooling and
Servicing Agreement, the Indemnification Agreement or this Agreement;
and neither the delivery of the Certificates, nor the consummation of
any other of the transactions contemplated herein, nor the compliance
with the provisions of the Pooling and Servicing Agreement, the
Indemnification Agreement or this Agreement will result in such a
breach, violation or default which would have such a material adverse
effect.
(vii) No filing or registration with, notice to, or consent,
approval, authorization or order or other action of any court or
governmental authority or agency is required for the consummation by
CWABS of the transactions contemplated by this Agreement, the
Indemnification Agreement or the Pooling and Servicing Agreement (other
than as required under "blue sky" or state securities laws, as to which
no representations and warranties are made by CWABS), except such as
have been, or will have been prior to the Closing Date, obtained under
the Act, and such recordations of the assignment of the Mortgage Loans
to the Trustee (to the extent such recordations are required pursuant to
the Pooling and Servicing Agreement) that have not yet been completed.
(viii) There is no action, suit or proceeding before or
by any court, administrative or governmental agency now
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pending to which CWABS is a party, or to the best of CWABS's knowledge
threatened against CWABS, 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 CWABS or could reasonably interfere with or
materially and adversely affect the consummation of the transactions
contemplated in the Pooling and Servicing Agreement, the Indemnification
Agreement or this Agreement.
(ix) At the time of execution and delivery of the Pooling and
Servicing Agreement, (1) CWABS will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of any
lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively, "Liens"), except to the extent
permitted in the Pooling and Servicing Agreement, and will not have
assigned to any person other than the Trust Fund any of its right, title
or interest, exclusive of the Retained Interest, if any, in the Mortgage
Loans, (2) CWABS will have the power and authority to transfer the
Mortgage Loans to the Trust Fund and to transfer the Certificates to
you, and (3) upon execution and delivery to the Trustee of the Pooling
and Servicing Agreement, and delivery of the Certificates to CWABS, the
Trust Fund will own the Mortgage Loans (exclusive of the Retained
Interest, if any) free of Liens other than Liens permitted by the
Pooling and Servicing Agreement or created or granted by you and (4)
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upon payment and delivery of the Underwritten Public Certificates to
you, you will acquire ownership of the Underwritten Public Certificates,
free of Liens other than Liens permitted by the Pooling and Servicing
Agreement or created or granted by you.
(x) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Indemnification Agreement, the Pooling and Servicing Agreement and the
Certificates have been or will be paid by CWABS at or prior to the
Closing Date, except for fees for recording assignments of the Mortgage
Loans to the Trustee pursuant to the Pooling and Servicing Agreement
that have not yet been completed, which fees will be paid by or on
behalf of CWABS in accordance with the Pooling and Servicing Agreement.
(xi) The Master Servicer is qualified to do business in all
jurisdictions in which its activities as servicer of the Mortgage Loans
require such qualification except where failure to be so qualified will
not have a material adverse effect on such servicing activities.
(xii) The transfer of the Mortgage Loans to the Trust Fund at the
Closing Date will be treated by CWABS for financial accounting and
reporting purposes as a sale of assets and not as a pledge of assets to
secure debt.
(xiii) CWABS is not doing business with Cuba.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
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warranties herein set forth, CWABS agrees to sell, and each Underwriter agrees,
severally and not jointly, to purchase from CWABS, the respective initial Class
Certificate Balance of each Class of Underwritten Public Certificates to be
purchased by such Underwriter as specified in the Prospectus Supplement. The
purchase price at which each Underwriter will purchase its Underwritten Public
Certificates shall be as set forth in a separate pricing letter dated the date
hereof between such Underwriter and CWABS (each, a "Pricing Letter"), and the
terms of each such Pricing Letter are hereby incorporated herein by reference as
if such terms were stated herein in their entirety. References herein to this
"Agreement" shall include the terms of each Pricing Letter.
3. Delivery and Payment. The Public Certificates shall be
delivered at the office, on the date and at the time specified in the Prospectus
Supplement, which place, date and time may be changed by agreement between the
Underwriters and CWABS (such date and time of delivery of and payment for such
Public Certificates being hereinafter referred to as the "Closing Date").
Delivery of the Underwritten Public Certificates shall be made to each of the
Underwriters as against their respective payment of the purchase price therefor
to or upon the order of CWABS in immediately available federal funds. The
Underwritten Public Certificates shall be registered in such names and in such
denominations as the respective Underwriters may have requested or as required
by book-entry registration not less than two full business days prior to the
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Closing Date. CWABS agrees to make the Underwritten Public Certificates
available for inspection, checking and packaging in New York, New York, on the
business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the
Underwriters propose to offer the Underwritten Public Certificates for sale as
set forth in the Prospectus and that you will not offer, sell or otherwise
distribute the Underwritten Public Certificates (except for the sale thereof in
exempt transactions) in any state in which the Underwritten Public Certificates
are not exempt from registration under "blue sky" or state securities laws
(except where the Underwritten Public Certificates will have been qualified for
offering and sale at your direction under such "blue sky" or state securities
laws).
5. Agreements. CWABS agrees with each Underwriter
that:
(a) CWABS will cause the Prospectus to be filed with the
Commission pursuant to Rule 424 under the Act and, if necessary, within 15 days
of the Closing Date, will file a report on Form 8-K setting forth specific
information concerning the Mortgage Loans, and will promptly advise each
Underwriter when the Prospectus has been so filed, and, prior to the termination
of the offering of the Public Certificates, will also promptly advise each
Underwriter (i) when any amendment to the Registration Statement has become
effective or any revision of or supplement to the Prospectus has been so filed
(unless
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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 CWABS of the suspension of qualification
of the Public Certificates for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or to the knowledge of CWABS, the threatening of
any proceeding for that purpose. CWABS 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,
CWABS will not file prior to the termination of such offering any amendment to
the Registration Statement or any revision of or supplement to the Prospectus
(other than any such amendment, revision or supplement which does not relate to
the Certificates) which shall be disapproved by the Underwriters after
reasonable notice and review of such filing.
(b) If, at any time when a prospectus relating to the Public
Certificates is required to be delivered under the Act (i) any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein in the light of the circumstances under
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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, CWABS 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) CWABS will furnish to each Underwriter and counsel to the
Underwriters, without charge, conformed copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus relating
to the Public Certificates is required under the Act, as many copies of the
Prospectus and any revisions or amendments thereof or supplements thereto as may
be reasonably requested.
(d) CWABS will, as between itself and the Underwriters, pay all
expenses incidental to the performance of its obligations under this Agreement,
including without limitation (i) expenses of preparing, printing and reproducing
the Registration Statement, the Prospectus, the Pooling and Servicing Agreement
and the Certificates, (ii) the cost of delivering the Underwritten Public
Certificates to the
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Underwriters, insured to your reasonable satisfaction, (iii) the fees charged by
securities rating services for rating the Certificates, (iv) the fees and
expenses of the Trustee except for fees and expenses of Trustee's counsel which
will be borne by the Trustee and (v) all other costs and expenses incidental to
the performance by CWABS of CWABS's obligations hereunder which are not
otherwise specifically provided for in this subsection. It is understood that,
except as provided in this paragraph (d) and in Section 9 hereof, each
Underwriter will pay all of its own expenses, including (i) the fees of any
counsel to such Underwriter, (ii) any transfer taxes on resale of any of the
Certificates by it, (iii) any advertising expenses connected with any offers
that such Underwriter may make and (iv) any expenses for the qualification of
the Certificates under "blue sky" or state securities laws, including filing
fees and the fee and disbursements of counsel for such Underwriter in connection
therewith and in connection with the preparation of any Blue Sky Survey.
(e) So long as any Certificates are outstanding, upon request of
any Underwriter, CWABS will, or will cause the Master Servicer to, furnish to
such Underwriter, as soon as available, a copy of (i) the annual statement of
compliance delivered by the Master Servicer to the Trustee under the Pooling and
Servicing Agreement, (ii) the annual independent public accountants' servicing
report furnished to the Trustee pursuant to the Pooling and Servicing Agreement,
(iii) each report of CWABS regarding the Certificates filed with the Commission
under
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the Exchange Act or mailed to the holders of the Certificates and (iv) from time
to time, such other information concerning the Certificates which may be
furnished by CWABS or the Master Servicer without undue expense and without
violation of applicable law.
(f) CWABS will file a current report on Form 8-K for purposes of
filing any Computational Materials (as defined in the Indemnification Agreement)
furnished to CWABS by an Underwriter prior to the time of filing of the
Prospectus as provided in Section 5(a) hereof and will include therein all
Computational Materials so furnished.
6. Conditions to the Obligations of Underwriters. The obligation
of each Underwriter to purchase the Underwritten Public Certificates to be
purchased by it as indicated in the related Pricing Letter shall be subject to
the accuracy in all material respects of the representations and warranties on
the part of CWABS contained herein as of the date hereof and as of the Closing
Date, to the accuracy of the statements of CWABS made in any officer's
certificate pursuant to the provisions hereof, to the performance in all
material respects by CWABS of its obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted and be pending or shall have been threatened,
and the Prospectus shall have been filed or mailed for filing with the
Commission not later than
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required pursuant to the rules and regulations of the Commission.
(b) CWABS shall have furnished to the Underwriters a certificate,
dated the Closing Date, of CWABS, signed by a vice president of CWABS, 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 CWABS herein are true
and correct in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date, and CWABS has complied
with all agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted and are pending or, to his knowledge, have been threatened as
of the Closing Date; and
(iii) Nothing has come to the attention of such person that would
lead him to believe that the Prospectus (other than any Computational
Materials (as defined in the Indemnification Agreement) incorporated
therein by reference) contains any untrue statement of a material fact
or omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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(c) The Seller shall have furnished to the Underwriters a
certificate, dated the Closing Date, of the Seller, signed by a vice president
or an assistant vice president of the Seller, to the effect that (i) the signer
of such certificate has carefully examined the Prospectus and nothing has come
to the attention of such person that would lead him to believe that the
Prospectus contains any untrue statement of a material fact with respect to the
Seller or omits to state any material fact with respect to the Seller or the
Mortgage Loans necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and (ii) the Seller
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
and the Pooling and Servicing Agreement.
(d) CWABS shall have furnished to you an opinion, dated the
Closing Date, of ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to CWABS, to the effect that:
(i) The Registration Statement and any amendments thereto have
become effective under the Act; to the best knowledge of such counsel,
no stop order suspending the effectiveness of the Registration Statement
has been issued and not withdrawn, no proceedings for that purpose have
been instituted or threatened and not terminated; and the Registration
Statement, the Prospectus and each amendment or supplement thereto, as
of their respective effective or issue dates (other than the financial
and statistical
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information contained therein as to which such counsel need express no
opinion), complied as to form in all material respects with the
applicable requirements of the Act and the rules and regulations
thereunder;
(ii) To the best knowledge of such counsel, there are no material
contracts, indentures or other documents of a character required to be
described or referred to in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by
reference as exhibits thereto;
(iii) Assuming that this Agreement and the Pooling and Servicing
Agreement have each been duly authorized, executed and delivered by the
parties thereto, each constitutes a valid, legal and binding agreement
of CWABS, and of the Seller in the case of the Pooling and Servicing
Agreement enforceable against CWABS or the Seller in accordance with its
terms, subject, as to enforceability to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law;
(iv) Assuming that the Certificates have been duly and validly
authorized, executed and authenticated in the manner contemplated in the
Pooling and Servicing Agreement, when delivered and paid for by you as
provided in this Agreement, the Certificates will be validly issued and
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outstanding and entitled to the benefits of the Pooling and Servicing
Agreement;
(v) The Certificates and the Pooling and Servicing
Agreement conform 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 "Federal Income Tax
Consequences," "ERISA Considerations" and "Legal Investment," to the
extent that they constitute matters of New York or federal law or legal
conclusions with respect thereto, have been reviewed by such counsel and
are correct in all material respects;
(vii) [The Certificates indicated under the heading "Summary of
Terms--Legal Investment" in the Prospectus Supplement to be "mortgage
related securities" will be mortgage related securities, as defined in
Section 3(a)(41) of the Exchange Act, so long as such Certificates are
rated in one of the two highest rating categories by at least one
nationally recognized statistical rating organization;] [and]
(viii) The Pooling and Servicing Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended, and the
Trust Fund created by the Pooling and Servicing Agreement is not
required to be registered under the Investment Company Act of 1940, as
amended[.] [; and]
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[(ix) The Trust Fund as described in the Prospectus Supplement and
the Pooling and Servicing Agreement will qualify as a "real estate
mortgage investment conduit" ("REMIC") within the meaning of Section
860D of the Internal Revenue Code of 1986, as amended (the "Code"),
assuming: (i) an election is made to treat the Trust Fund as a REMIC,
(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 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
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certificates or other documents furnished by officers of, the parties to this
Agreement and the Pooling and Servicing Agreement. Such opinion may be qualified
as an opinion only on the laws of the State of New York and the federal law of
the United States. To the extent that such firm relies upon the opinion of other
counsel in rendering any portion of its opinion, the opinion of such other
counsel shall be attached to and delivered with the opinion of such firm that is
delivered to you.
(e) CWABS shall have furnished to the Underwriters an opinion,
dated the Closing Date, of counsel to CWABS (who may be an employee of CWABS or
of an affiliate of CWABS), to the effect that:
(i) CWABS has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware and
is duly qualified to do business in, and is in good standing as a
foreign corporation under the laws of, the State of California.
(ii) The Certificates have been duly authorized and executed and,
assuming authentication and delivery in the manner contemplated in the
Pooling and Servicing Agreement, are validly issued and outstanding, and
upon delivery by CWABS of the Certificates to be purchased by the
Underwriters and payment by the Underwriters of the purchase price
therefor in the manner contemplated by this Agreement, the Underwriters
will acquire such Certificates free and clear of any lien, pledge,
encumbrance or other
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security interest other than one created or granted by any Underwriter;
(iii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by CWABS;
(iv) This Agreement and the Indemnification Agreement have each
been duly authorized, executed and delivered by CWABS;
(v) No consent, approval, authorization or order of any
California, Delaware or federal governmental agency or body or any
California, Delaware or federal court is required for the consummation
by CWABS of the transactions contemplated by the terms of this
Agreement, the Indemnification Agreement or the Pooling and Servicing
Agreement except such as may be required under the "blue sky" or state
securities laws of any jurisdiction in connection with the offering,
sale or acquisition of the Certificates, any recordations of the
assignment of the Mortgage Loans to the Trustee (to the extent such
recordations are required pursuant to the Pooling and Servicing
Agreement) that have not yet been completed and such other approvals as
have been obtained;
(vi) The sale of the Certificates to be purchased by the
Underwriters pursuant to this Agreement and the consummation of any of
the transactions contemplated by the terms of the Pooling and Servicing
Agreement, the Indemnification Agreement or this Agreement do not
conflict with or result in a breach or violation of any material
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term or provision of, or constitute a default under, the certificate of
incorporation of CWABS, or any indenture or other agreement or
instrument to which CWABS is a party or by which it is bound, or any
California, Delaware or federal statute or regulation applicable to
CWABS or an order of any California, Delaware or federal court,
regulatory body, administrative agency or governmental body having
jurisdiction over CWABS; and
(vii) There are no legal or governmental actions, investigations or
proceedings pending to which CWABS is a party, or, to the best knowledge
of such counsel, threatened against CWABS, (A) asserting the invalidity
of this Agreement, the Pooling and Servicing Agreement, the
Indemnification Agreement or the Certificates, (B) seeking to prevent
the issuance of the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Pooling and Servicing
Agreement or the Indemnification Agreement, (C) which might materially
and adversely affect the performance by CWABS of its obligations under,
or the validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement, the Indemnification Agreement or the Certificates
or (D) seeking to affect adversely the Federal income tax attributes of
the Certificates as described in the Prospectus under the heading
"Federal Income Tax Consequences." For purposes of the
foregoing, such counsel may state that it has not regarded any legal or
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governmental actions, investigations or proceedings to be "threatened"
unless the potential litigant or governmental authority has manifested
to the legal department of CWABS a present intention to initiate such
proceedings.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to this Agreement and the
Pooling and Servicing Agreement. Such opinion may assume the due authorization,
execution and delivery of the instruments and documents referred to therein by
the parties thereto other than CWABS or its affiliates. Such opinion may be
qualified as an opinion only on the laws of the States of Delaware and
California and the federal law of the United States. To the extent that such
counsel relies upon the opinion of other counsel in rendering any portion of its
opinion, the opinion of such other counsel shall be attached to and delivered
with the opinion of such counsel that is delivered to the Underwriters.
(f) The Seller shall have furnished to the Underwriters an
opinion, dated the Closing Date, of counsel to the Seller (who may be an
employee of the Seller), to the effect that:
(i) The Seller has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of its
incorporation (the "Incorporation State");
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(ii) The Pooling and Servicing Agreement and the Indemnification
Agreement have each been duly authorized, executed and delivered by the
Seller;
(iii) No consent, approval, authorization or order of any
Incorporation State or federal court or governmental agency or body is
required for the consummation by the Seller of the transactions
contemplated by the terms of the Pooling and Servicing Agreement or the
Indemnification Agreement except any such as may be required under the
"blue sky" or state securities laws of any jurisdiction in connection
with the offering, sale or acquisition of the Certificates, any
recordations of the assignment of the Mortgage Loans evidenced by the
Certificates to the Trustee (to the extent such recordations are
required pursuant to the Pooling and Servicing Agreement) that have not
yet been completed and any approvals as have been obtained;
(iv) The consummation of any of the transactions contemplated by the
terms of the Pooling and Servicing Agreement or the Indemnification
Agreement do not conflict with or result in a breach or violation of any
material term or provision of, or constitute a default under, the
charter or by-laws of the Seller, or, to the best knowledge of such
counsel, any indenture or other agreement or instrument to which the
Seller is a party or by which it is bound, any Incorporation State or
federal statute or regulation applicable to the Seller or any order of
any Incorporation State or federal court, regulatory body,
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administrative agency or governmental body having jurisdiction over the
Seller; and
(v) There are no legal or governmental actions, investigations or
proceedings pending to which the Seller is a party, or, to the best
knowledge of such counsel, threatened against the Seller, (A) asserting
the invalidity of the Pooling and Servicing Agreement or the
Indemnification Agreement or (B) which might materially and adversely
affect the performance by the Seller of its obligations under, or the
validity or enforceability of, the Pooling and Servicing Agreement or
the Indemnification Agreement. For purposes of the foregoing, such
counsel may state that it has not regarded any legal or governmental
actions, investigations or proceedings to be "threatened" unless the
potential litigant or governmental authority has manifested to the legal
department of the Seller a present intention to initiate such
proceedings.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to the Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the Seller. Such opinion may be qualified as an opinion only on the
laws of the Incorporation State and the federal law of the United States and,
with respect to the opinions set forth in paragraph (f)(ii) above, the laws of
the
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State of New York. To the extent that such counsel relies upon the opinion of
other counsel in rendering any portion of its opinion, the opinion of such other
counsel shall be attached to and delivered with the opinion of such counsel that
is delivered to the Underwriters.
(g) Each party providing credit enhancement to the Certificates
shall have furnished to the Underwriters an opinion, dated the Closing Date, of
its counsel, with respect to the Registration Statement and the Prospectus, and
such other related matters, in the form previously agreed to by such provider
and the Underwriters.
(h) The Underwriters shall have received from their counsel such
opinion or opinions, dated the Closing Date, with respect to the issuance and
sale of the Public Certificates, the Registration Statement and the Prospectus,
and such other related matters as you may reasonably require.
(i) CWABS' independent accountants, _________________
______________ and __________________ 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 CWABS 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 CWABS which in your reasonable judgment materially
impairs
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the investment quality of the Certificates so as to make it impractical or
inadvisable to proceed with the public offering or the delivery of the
Certificates as contemplated by the Prospectus.
(k) The Public Certificates shall be rated not lower than the
required ratings set forth under the heading "Ratings" in the Prospectus
Supplement, such ratings shall not have been rescinded and no public
announcement shall have been made that any such required rating of the
Certificates has been placed under review (otherwise than for possible
upgrading).
(l) The Underwriters shall have received copies of any opinions
of counsel to CWABS supplied to the rating organizations relating to certain
matters with respect to the Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or accompanied by reliance
letters addressed to the Underwriters.
(m) All Classes of Certificates being publicly offered by the
Underwriters or privately placed by the Purchaser shall have been issued and
paid for pursuant to the terms of this Agreement and the Purchase Agreement,
respectively.
(n) The Trustee shall have furnished to the Underwriters an
opinion dated the Closing Date, of counsel to the Trustee (who may be an
employee of the Trustee), to the effect that:
(i) The Trustee has full corporate power and
authority to execute and deliver the Pooling and Servicing
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Agreement and to perform its obligations thereunder and to execute,
countersign and deliver the Certificates.
(ii) The Pooling and Servicing Agreement has been duly authorized,
executed and delivered by the Trustee.
(iii) The Pooling and Servicing Agreement is a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership, conservatorship and similar
laws affecting the rights of creditors generally, and subject, as to
enforceability, to general principles of equity, regardless of whether
such enforcement is considered in a proceeding at law or equity.
(iv) In the event that the Master Servicer defaults in its
obligation to make Advances pursuant to the Pooling and Servicing
Agreement, the Trustee is not, as of the date hereof, prohibited by any
provision of its articles of incorporation or by-laws from assuming,
pursuant to the Pooling and Servicing Agreement, the obligation to make
such Advances.
Such opinion may express its reliance as to factual matters on
the representations and warranties made by, and on certificates or other
documents furnished by officers of, the parties to the Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and delivery
of the instruments and documents referred to therein by the parties thereto
other than the Trustee or its affiliates. Such opinion
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may be qualified as an opinion only on the laws of the State of New York and the
federal law of the United States. To the extent that such counsel relies upon
the opinion of other counsel in rendering any portion of its opinion, the
opinion of such other counsel shall be attached to and delivered with the
opinion of such counsel that is delivered to the Underwriters.
(o) CWABS shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably have
requested, and all proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be in all material
respects reasonably satisfactory in form and substance to the Underwriters and
their counsel.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, this Agreement and all obligations of an Underwriter hereunder may be
canceled at, or at any time prior to, the Closing Date by such Underwriter.
Notice of such cancellation shall be given to CWABS in writing, or by telephone
or telegraph confirmed in writing.
7. Termination. This Agreement shall be subject to termination in
your absolute discretion, by notice given to CWABS prior to delivery of and
payment for the Underwritten Public Certificates, if prior to such time (i)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, (ii) a general moratorium on commercial banking
activities in New York shall have been
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declared by either Federal or New York State authorities, or (iii) there shall
have occurred any material outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets is such as to
make it, in your judgment after consultation with CWABS, impracticable to market
the Public Certificates on the terms specified in this Agreement.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
CWABS 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 CWABS, and will survive
delivery of and payment for the Underwritten Public Certificates. The provisions
of Section 5(d) and Section 9 hereof shall survive the termination or
cancellation of this Agreement.
9. Reimbursement of Underwriter Expenses. If for any reason,
other than default by any Underwriter in its obligation to purchase the
Underwritten Public Certificates or termination by any Underwriter pursuant to
Section 7 hereof, the Underwritten Public Certificates are not delivered by or
on behalf of CWABS as provided herein, CWABS will reimburse each Underwriter for
all out-of-pocket expenses of such Underwriter, including reasonable fees and
disbursements of its counsel, reasonably incurred by such Underwriter in making
preparations for the purchase, sale and delivery of the Underwritten Public
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Certificates, but CWABS shall then be under no further liability to any
Underwriter with respect to the Underwritten Public Certificates, except as
provided in Section 5(d) hereof.
10. Default by an Underwriter. If any one or more of the
Underwriters shall fail to purchase and pay for any of the Underwritten Public
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 Public 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 Public Certificates of the various Classes set forth
opposite the name of all the remaining Underwriters) the Underwritten Public
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 Public 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 Public Certificates set forth in the
Prospectus Supplement, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Underwritten Public Certificates, and if such nondefaulting Underwriters do not
purchase all the Underwritten
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Public Certificates, this Agreement will terminate without liability to any
nondefaulting Underwriter or CWABS. 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 CWABS and to any nondefaulting Underwriter for damages
occasioned by its defaulting hereunder.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and their
respective successors and assigns, and no other person will have any right or
obligation hereunder.
12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
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
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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 CWABS, shall
be delivered to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention of General Counsel.
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 CWABS and each Underwriter on [______________, 199__] relating to
CWABS, Inc. Asset Backed Certificates Series 1996-__ issued by the _________
______________________.
Very truly yours,
CWABS, INC.
By:___________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted.
[UNDERWRITER]
By:_______________________________
Name:
Title:
Address:
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