EXHIBIT 1.1
CWABS, 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:
CWABS, Inc., a Delaware corporation ("CWABS"), proposes to cause to be
issued and to sell, severally and not jointly, to you, as underwriters (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
[Countrywide Home Loans, Inc.] ("[CHL]"), if any, set forth on the cover page
of the Prospectus Supplement (as defined below), collectively, the "Public
Certificates") having the characteristics set forth in the Prospectus
Supplement, evidencing ownership interests in a trust consisting of mortgage
loans acquired by CWABS 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
-1-
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 the signature page hereof (the "Private
Certificates," and collectively with the Public Certificates, the
"Certificates") are to be issued under a pooling and servicing agreement (the
"Pooling and Servicing Agreement"), dated as of the first day of the month of
the date of this Agreement (the "Cut-off Date"), among CWABS, as Depositor,
[CHL], as seller, one or more special purpose entities established by
[Countrywide Financial Corporation] or one of its subsidiaries, (together with
[CHL], the "Sellers"), [Countrywide Home Loans Servicing LP], as master
servicer (the "Master Servicer"), ___________________, as trustee (the
"Trustee") and, if specified in the Prospectus Supplement,
__________________________________, as co-trustee (the "Co-Trustee"). The
Underwritten Public Certificates of each class will be issued in the minimum
denominations and will have the terms set forth in the Prospectus Supplement.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings ascribed thereto in the Pooling and Servicing Agreement.
If and to the extent specified in the Pooling and Servicing Agreement, in
addition to the Mortgage Loans conveyed to the Trust Fund on the Closing Date,
CWABS may convey to the Trust Fund, from time to time during the period
specified in the Pooling and Servicing Agreement (each such period, a
"Pre-Funding Period") (the date of any such conveyance, a "Subsequent Transfer
Date"), Subsequent Mortgage Loans.
1. Representations and Warranties. CWABS represents and warrants to, and
agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-__________),
including a prospectus, has been filed with the Securities and Exchange
Commission (the
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"Commission") and, as amended, has become effective under the Securities
Act of 1933, as amended (the "Act"). As of the date of each Contract of
Sale (as defined in the indemnification agreement, dated the date hereof
(the "Indemnification Agreement") among CWABS, [CHL] and the other
parties named therein) and as of the Closing Date (as defined herein), no
stop order suspending the effectiveness of such registration statement
has been issued and no proceedings for that purpose have been initiated
or, to 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 (the "Base Prospectus") is proposed to be
supplemented by a prospectus supplement dated the date hereof relating to
the Certificates and, as so supplemented, to be filed with the Commission
pursuant to Rule 424 under the Act. (Such registration statement is
hereinafter referred to as the "Registration Statement"; such prospectus
supplement as first filed with the Commission, is herein referred to as
the "Prospectus Supplement"; and such prospectus, in the form in which it
will first be filed with the Commission in connection with the offering
of the Underwritten 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").
For purposes of this Agreement, the term "Base 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 filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on or
before the date on which the Registration
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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 as of its effective date, as of the
date of the Prospectus Supplement and as of the date of each Contract of
Sale conformed and will conform in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder applicable to such documents as of such dates. The Prospectus,
as of its issue date, as of the date of the Prospectus Supplement and as
revised, amended or supplemented and filed with the Commission prior to
the termination of the offering of the Public Certificates, conformed and
will conform in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder applicable to such
documents as of such respective dates, and the Prospectus as revised,
amended or supplemented and filed with the Commission as of the Closing
Date will conform in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder applicable to
such documents as of the Closing Date. The Registration Statement, at the
time it became effective and as of the date of each Contract of Sale, did
not include any untrue statement of a material fact
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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 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 (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 Issuer Free Writing Prospectus (as defined in the
Indemnification Agreement) as of its date (the "Start Date") and as of
each day through the Closing Date, constitutes and will constitute an
"issuer free writing prospectus" as defined in Rule 433 of the Act and
does not and will not as of any such time conflict with the information
in the Registration Statement or the Prospectus. The Issuer Free Writing
Prospectus has been filed with the Commission as required by Rule 433.
The Issuer Free Writing Prospectus and the Base Prospectus (collectively,
the "Disclosure Package") as of the Start Date and as of each day through
the Closing Date does not and will not include an untrue statement of a
material fact and does not and will not omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
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(d) The Seller Mortgage Loan Information (as defined in the
Indemnification Agreement) as of the date it is forwarded to an
Underwriter, is accurate in all material respects.
(e) The Public Certificates will conform in all material respects to
the description thereof contained in the Disclosure Package and the
Prospectus, and each of the Certificates, when validly authenticated,
issued and delivered in accordance with the Pooling and Servicing
Agreement, will be duly and validly issued and outstanding and entitled
to the benefits of the Pooling and Servicing Agreement. Each Certificate
of the classes, 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.
(f) Each of this Agreement and the Indemnification Agreement has
been duly authorized, executed and delivered by CWABS. As of the Closing
Date, the Pooling and Servicing Agreement, the Indemnification Agreement,
and each insurance agreement, if any, referred to in the Prospectus
Supplement (each an "Insurance Agreement" and collectively, the
"Insurance Agreements"), between CWABS and the third party provider of
credit enhancement, if any (the "Certificate Insurer") included in the
Trust Fund will have been duly authorized, executed and delivered by
CWABS and will conform in all material respects to the description of the
Mortgage Insurance Policy contained in the Disclosure Package and the
Prospectus and, assuming the valid execution and delivery thereof by the
other parties thereto, this Agreement, the Indemnification Agreement, the
Insurance Agreements, each subsequent transfer agreement, if any,
referred to in the
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Disclosure Package and the Prospectus Supplement (each a "Subsequent
Transfer 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 (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.
(g) 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 Disclosure Package and the Prospectus and to
enter into and perform its obligations under the Pooling and Servicing
Agreement, the Insurance Agreements, the Indemnification Agreement, each
Subsequent Transfer Agreement and this Agreement.
(h) Neither the issuance or delivery of the Certificates, nor the
consummation of any other of the transactions contemplated herein, nor
compliance with the provisions of the Pooling and Servicing Agreement,
the Indemnification Agreement, the Insurance Agreements, each Subsequent
Transfer Agreement or this Agreement, will conflict with or result in the
breach of any material term or provision of the certificate of
incorporation or bylaws of 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,
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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
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, the Insurance Agreements, each
Subsequent Transfer 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,
the Insurance Agreements or this Agreement will result in such a breach,
violation or default which would have such a material adverse effect.
(i) No filing or registration with, notice to, or consent, approval,
authorization or order or other action of any court or governmental
authority or agency is required for the consummation by CWABS of the
transactions contemplated by this Agreement, the Indemnification
Agreement, the Insurance Agreements, each Subsequent Transfer 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 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.
(j) There is no action, suit or proceeding before or by any court,
administrative or governmental agency now pending to which CWABS or any
of its
8
affiliates is a party, or to the best of CWABS's knowledge threatened
against CWABS 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 CWABS or could reasonably interfere
with or materially and adversely affect the consummation of the
transactions contemplated in the Pooling and Servicing Agreement, the
Insurance Agreements, the Indemnification Agreement or this Agreement.
(k) 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 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
Underwritten Public 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 CWABS, the Trust Fund will
own the Mortgage Loans free of Liens, other than Liens permitted by the
Pooling and Servicing Agreement or created or granted by you, and (4)
upon payment and delivery of the Underwritten Public Certificates to you,
you will acquire ownership of the Underwritten Public Certificates, free
of Liens, other than Liens permitted by the Pooling and Servicing
Agreement or created or granted by you. At the time of execution and
delivery of each Subsequent
9
Transfer Agreement, (1) CWABS will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of any
Liens, except to the extent permitted in the Pooling and Servicing
Agreement, and will not have assigned to any person other than the Trust
Fund any of its right, title or interest in the related Mortgage Loans,
(2) CWABS will have the power and authority to transfer the related
Mortgage Loans to the Trust Fund, (3) upon execution and delivery to the
Trustee or the Co-Trustee, as applicable, of each Subsequent Transfer
Agreement, the Trust Fund will own the related Mortgage Loans free of
Liens other than Liens permitted by the Pooling and Servicing Agreement
or created or granted by you and (4) CWABS will have complied with the
requirements contained in the Pooling and Servicing Agreement for
transferring the related Mortgage Loans.
(l) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the
Indemnification Agreement, the Pooling and Servicing Agreement, the
Insurance Agreements and the Certificates have been or will be paid by
CWABS at or prior to the Closing Date (or in the case of each Subsequent
Transfer Agreement, the applicable Subsequent Transfer 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 CWABS in accordance with the Pooling and Servicing
Agreement.
(m) 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
10
failure to be so qualified will not have a material adverse effect on
such servicing activities.
(n) CWABS is not doing business with Cuba.
(o) CWABS 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 CWABS or which might materially and
adversely affect the properties or assets thereof.
(p) Neither CWABS 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").
(q) CWABS 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 CWABS 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 CWABS.
(r) As of the earliest time after filing of the Registration
Statement that CWABS or another offering participant made a bona fide
offer (within the meaning of
11
Rule 164(h)(2) under the Act) of the Public Certificates, CWABS was not
and will not be an "ineligible issuer" as defined in Rule 405 under the
Act.
(s) CWABS represents and agrees that, other than the Disclosure
Package and the Final Free Writing Prospectus, it has not made and will
not make any offer relating to the Public Certificates that would
constitute a "free writing prospectus" as defined in Rule 405 under the
Act;
(t) CWABS has complied and will comply with the requirements of Rule
433 under the Act applicable to the Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required
and legending.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, CWABS agrees to
sell, and each Underwriter agrees, severally and not jointly, to purchase from
CWABS, the respective original Certificate Principal 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
described under the heading "Method of Distribution" in the Prospectus
Supplement.
3. Delivery and Payment. The Underwritten 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 Underwritten Public Certificates being referred to herein as
the "Closing Date"). Delivery of the Underwritten Public Certificates shall be
made to each of the Underwriters as against their respective payment of the
purchase price therefor to or upon the order of CWABS in immediately available
federal funds. The
12
Underwritten Public Certificates shall be registered in such names and in such
denominations as the respective Underwriters may have requested or as required
by book-entry registration not less than [two] full business days prior to the
Closing Date.
4. Offering by Underwriters. (a) It is understood that the Underwriters
propose to offer the Underwritten Public Certificates for sale as set forth in
the Prospectus and that the Underwriters 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 the Underwriters' direction under such
"blue sky" or state securities laws).
(b) In the event that an Underwriter used a "road show" (as defined
in Rule 433(h)(4) under the Act) in connection with the offering of the
Public Certificates, the Underwriter agrees that all information in such
road show shall be provided orally only and not as a "written
communication" (as defined in Rule 405 under the Act). Each Underwriter
agrees that any slideshow used in connection with a road show (i) shall
only be provided as part of the road show and not separately, (ii) if
handed out at any meeting as a hard copy, shall be retrieved prior to the
end of the meeting and (iii) will otherwise be used only in a manner that
does not cause the slideshow to be treated as a "free writing prospectus"
(as defined in Rule 405 under the Act).
(c) If any "written communication" (as defined in Rule 405 under the
Act) in connection with the offering of the Public Certificates contains
an untrue statement of material fact or omits to state a material fact
necessary to make the statements, in light of the circumstances under
which they were made, not misleading at the time that a Contract
13
of Sale was entered into, when taken together with all information that
was conveyed to any person with whom a Contract of Sale was entered into,
then the applicable Underwriter shall provide any such person with the
following:
(i) Adequate disclosure of the contractual arrangement;
(ii) Adequate disclosure of the person's rights under the existing
Contract of Sale at the time termination is sought;
(iii) Adequate disclosure of the new information that is necessary
to correct the misstatements or omissions in the information given at the
time of the original Contract; and
(iv) A meaningful ability to elect to terminate or not terminate the
prior Contract of Sale and to elect to enter into or not enter into a new
Contract of Sale.
5. Agreements. 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 indicated in the Prospectus,
within [15] days of the Closing Date, will file a report on Form 8-K
setting forth specific information concerning the Mortgage Loans, and
will promptly advise each Underwriter when the Prospectus has been so
filed, and, prior to the termination of the offering of the Public
Certificates, will also promptly advise each Underwriter (i) when any
amendment to the Registration Statement has become effective or any
revision of or supplement to the Prospectus has been so filed (unless
such amendment, revision or supplement does not relate to the
Certificates), (ii) of any request by the Commission for any amendment of
the Registration Statement or the Prospectus or for any additional
information (unless such request for additional information does not
relate to the Certificates), (iii) of any
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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 statutory prospectus relating to the
Public Certificates is required to be delivered under the Act (i) any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein in
the light of the circumstances under which they were made not misleading,
or (ii) it shall be necessary to revise, amend or supplement the
Prospectus to comply with the Act or the rules and regulations of the
Commission thereunder, 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
15
as such Underwriter may from time to time reasonably request of an
amended Prospectus or a supplement to the Prospectus which will correct
such statement or omission or effect such compliance.
(c) If, at any time after the Start Date and prior to the Closing
Date any event occurs as a result of which the Disclosure Package as then
amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or would conflict with the information in the Registration
Statement, 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 (as may be required
under the Rules and Regulations) a revision, amendment or supplement
which will correct such conflict, statement or omission, and furnish
without charge to each Underwriter as many copies as such Underwriter may
from time to time reasonably request of such revision, amendment or
supplement.
(d) CWABS will cause to be delivered to each Underwriter and counsel
for the Underwriters an agreed upon procedures letter from
_________________________:
(i) as of the Start Date with respect to the Issuer Free
Writing Prospectus; and
(ii) with respect to the Prospectus as provided in Section
6(i).
(e) 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
16
required under the Act, as many copies of the Prospectus and any
revisions or amendments thereof or supplements thereto as may be
reasonably requested.
(f) 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 Disclosure
Package, the Prospectus, the Pooling and Servicing Agreement and the
Certificates, (ii) the cost of delivering the Underwritten Public
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 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 the fees of any counsel to such Underwriter.
(g) 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
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
CWABS regarding the Certificates
17
filed with the Commission under the Exchange Act or mailed to the holders
of the Certificates and (iv) from time to time, such other information
concerning the Certificates which may be furnished by CWABS or the Master
Servicer without undue expense and without violation of applicable law.
(h) CWABS will file ABS ICM or Preliminary Term Sheets (as such
terms are defined in the Indemnification Agreement) furnished to CWABS by
an Underwriter if required by the Act prior to the time of filing of the
Prospectus as provided in the Indemnification Agreement.
(i) If by the [third] anniversary (the "Renewal Deadline") of the
initial effective date of the Registration Statement, any of the Public
Certificates remain unsold by the Underwriters and the Underwriters have
so notified CWABS in writing at least [90] days prior to the Renewal
Deadline, CWABS will file, if it has not already done so and is eligible
to do so, a new shelf registration statement relating to the Public
Certificates, in a form satisfactory to the Underwriters and will use its
best efforts to cause such registration statement to be declared
effective within [180] days after the Renewal Deadline. CWABS will take
all other action necessary or appropriate to permit the public offering
and sale of the Public Certificates to continue as contemplated in the
expired registration statement relating to the Public Certificates.
References herein to the Registration Statement shall include such new
shelf registration statement.
(j) CWABS will timely file all reports with respect to the Trust
Fund required to be filed under the Exchange Act.
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
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in the Prospectus Supplement 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 transmitted for filing with
the Commission not later than 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 and as of 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
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
19
(iii) Nothing has come to the attention of such person that
would lead him to believe that the Prospectus 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
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) CWABS shall have furnished to you an opinion, dated the Closing
Date, of ______________________, 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
20
supplement thereto, as of their respective initial 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;
(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 CWABS, and of [CHL] in the case of the Pooling and
Servicing Agreement, the Insurance Agreements and the
Indemnification Agreement enforceable against CWABS 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;
21
(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 Public 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;
(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
22
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 initially 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 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) 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:
23
(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 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,
the Insurance Agreements, and the Indemnification Agreement have
each been duly authorized, executed and delivered by CWABS;
(v) No consent, approval, authorization or order of any
[California] or federal court or governmental agency or body or to
the best knowledge of such counsel any order or decree of a
[California] or federal court is required for the consummation by
CWABS of the transactions contemplated by the terms of this
Agreement, the Indemnification Agreement, the Insurance Agreements
or the Pooling and Servicing Agreement except such as may be
required under the "blue sky" or state securities laws
24
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 Pooling and
Servicing Agreement, the Indemnification Agreement, the Insurance
Agreements or this Agreement do not conflict with or result in a
breach or violation of any material term or provision of, or
constitute a default under, the certificate of incorporation of
CWABS, or any indenture or other agreement or instrument to which
CWABS is a party or by which it is bound, or any [California] or
federal law, statute, regulation, order or decree applicable to
CWABS 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 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, the Insurance
Agreements or the Certificates, (B) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement,
the Insurance Agreements or the Indemnification Agreement, (C) which
might materially and adversely affect the performance by CWABS
25
of its obligations under, or the validity or enforceability of, this
Agreement, the Pooling and Servicing Agreement, the Indemnification
Agreement, the Insurance Agreements or the Certificates or (D)
seeking to affect adversely the federal income tax attributes of the
Public 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 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, the Insurance
Agreements, the Indemnification Agreement and the Pooling and Servicing
Agreement. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than 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) [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];
26
(ii) The Pooling and Servicing Agreement, the Insurance
Agreements and the Indemnification Agreement have each 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 the Pooling and Servicing Agreement, the Insurance
Agreements 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 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;
(iv) The consummation of any of the transactions contemplated
by the terms of the Pooling and Servicing Agreement, the Insurance
Agreements 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 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
27
(v) There are no legal or governmental actions, investigations
or proceedings pending to which [CHL] is a party, or, to the best
knowledge of such counsel, threatened against [CHL], (A) asserting
the invalidity of the Pooling and Servicing Agreement, the Insurance
Agreements or the Indemnification Agreement or (B) which might
materially and adversely affect the performance by [CHL] of its
obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement, the Insurance Agreements 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 [CHL] a present intention to initiate such
proceedings.
Such opinion may express its reliance as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to the Pooling and Servicing Agreement.
Such opinion may assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto other
than [CHL]. Such opinion may be qualified as an opinion only on the laws of
the 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, if any, providing credit enhancement to the
Certificates shall have furnished to the Underwriters an opinion, dated
the Closing Date, of its counsel, with respect to the Registration
Statement, the Prospectus, the Mortgage Insurance Policy
28
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 Public Certificates, the Registration
Statement and the Prospectus, and such other related matters as the
Underwriters may reasonably require.
(i) CWABS's independent accountants, _________________________,
shall have furnished to the Underwriters a letter or letters addressed to
the Underwriters and dated as of or prior to the date of first use of the
Prospectus Supplement in the form and reflecting the performance of the
procedures previously agreed to by 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 or any of its affiliates
which in your reasonable judgment materially impairs the investment
quality of the Underwritten Public Certificates so as to make it
impractical or inadvisable to proceed with the public offering or the
delivery of the Underwritten Public Certificates as contemplated by the
Prospectus.
(k) The Underwritten 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).
29
(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 Underwritten Public 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 Underwritten Public 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) 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.
(p) As of the Closing Date, each of the Pooling and Servicing
Agreement, the Insurance Agreements and the Indemnification Agreement
will have been duly authorized, executed and delivered by, and will
constitute a legal, valid and binding obligation of CWABS, 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
30
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) [Reserved]
(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 [Texas];
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Master Servicer;
(iii) No consent, approval, authorization or order of any
[California] or federal court or governmental agency or body is
required for the consummation by the Master Servicer of the
transactions contemplated by the terms of the Pooling and Servicing
Agreement or the Insurance Agreements except any such as may be
required under the "blue sky" or state securities laws of any
jurisdiction in connection with the offering, sale or acquisition of
the Certificates, any recordations of the assignment of the Mortgage
Loans evidenced by the Certificates to the Trustee (to the extent
such recordations are required pursuant to the Pooling and Servicing
Agreement) that have not yet been completed and any approvals as
have been obtained;
(iv) The consummation of any of the transactions contemplated
by the terms of the Pooling and Servicing Agreement or the Insurance
Agreements do not
31
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
(v) There are no legal or governmental actions, investigations
or proceedings pending to which the Master Servicer is a party, or,
to the best knowledge of such counsel, threatened against the Master
Servicer, (A) asserting the invalidity of the Pooling and Servicing
Agreement or the Insurance Agreements or (B) which might materially
and adversely affect the performance by the Master Servicer of its
obligations under, or the validity or enforceability of, the Pooling
and Servicing Agreement or the Insurance Agreements. For purposes of
the foregoing, such counsel may state that it has not regarded any
legal or governmental actions, investigations or proceedings to be
"threatened" unless the potential litigant or governmental authority
has manifested to the legal department of 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 this Agreement, the Insurance
Agreements 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
32
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.
(s) The underwriters shall have received an opinion as to certain
matters regarding the seller(s) other than [CHL] in form and substance
reasonably satisfactory to the underwriters and their counsel.
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 CWABS
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 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 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 CWABS, impracticable to market the
Underwritten Public Certificates on the terms specified in this Agreement.
33
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(f) and Section 9 hereof shall survive the termination
or cancellation of this Agreement.
9. Reimbursement of Underwriter Expenses. If for any reason, other than
default by any Underwriter in its obligation to purchase the Underwritten
Public Certificates or termination by any Underwriter pursuant to Section 7
hereof, the Underwritten Public Certificates are not delivered by or on behalf
of 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 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(f) 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
34
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 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. Persons Entitled to the Benefit of this Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters and CWABS,
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 CWABS, officers of CWABS who have
signed the Registration Statement and any person controlling CWABS within the
meaning of Section 15 of the Act. Nothing in this
35
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.
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 CWABS,
shall be delivered to [4500 Park Granada, M.S. ▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of Deputy General Counsel for Corporate Finance].
36
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 ________, 200_ relating
to CWABS, Inc., Asset-Backed Certificates, Series 200_-__.
Very truly yours,
CWABS, INC.
By: ____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted.
___________________________________
By: ____________________________
Name:
Title:
Address:
___________________________________
By: ____________________________
Name:
Title:
Address:
37