EXHIBIT 1.1
CWALT, INC.
Mortgage Pass-Through Certificates, Series 200_-__
UNDERWRITING AGREEMENT
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Dated the date specified on
the signature page hereof
The Firm or Firms
of Underwriters
named
on the signature page
hereof
Ladies and Gentlemen:
CWALT, Inc., a Delaware corporation ("CWALT"), proposes to
cause
to be issued and to sell to you, as underwriters (each, an
"Underwriter"), the
Mortgage Pass-Through Certificates of the series specified on the
signature
page hereof and described in Section 2 hereof (the "Underwritten
Public
Certificates" and, together with any certificates of such series
retained by
CWALT or [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
notes and the related mortgages acquired by CWALT (the "Mortgage
Loans") and
related property (collectively, the "Trust Fund"). The Mortgage
Loans will be
of the type and will have the characteristics described in the
Prospectus
Supplement, subject to the variances, ranges, minimums and maximums
set forth
in the Prospectus Supplement, and will have the aggregate principal
balance
set forth in the Prospectus Supplement, subject to an upward or
downward
variance in principal balance, not to exceed the percentage set
forth in the
Prospectus Supplement, the precise aggregate principal balance
within such
range to be determined by CWALT in its sole discretion.
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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, among CWALT, as Depositor, [Countrywide
Home Loans
Servicing LP], as master servicer (the "Master Servicer"), [CHL],
one or more
special purpose entities established by [Countrywide Financial
Corporation] or
one of its subsidiaries (together with [CHL], the "Sellers")
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.
If and to the extent specified in the Pooling and Servicing
Agreement, in addition to the Mortgage Loans conveyed to the Trust
Fund on the
Closing Date, CWALT may convey to the Trust Fund, from time to time
during the
period specified in the Pooling and Servicing Agreement (each such
period, a
"Conveyance Period") (the date of any such conveyance, a
"Supplemental
Transfer Date") Supplemental Mortgage Loans.
1. Representations and
Warranties. CWALT represents and warrants
to, and
agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No.
333-________),
including
a prospectus, has been filed with the Securities and Exchange
Commission
(the "Commission") and has become effective under the
Securities
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 CWALT,
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[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 CWALT's knowledge threatened by the
Commission. The prospectus in the form in which it will be used
in
connection
with the offering of the Public Certificates (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 Public
Certificates, including documents incorporated therein as of the
time of
such filing and
as supplemented by the Prospectus Supplement, is
hereinafter referred to as the "Prospectus"). Any reference herein
to
the
Registration Statement, a preliminary prospectus or the
Prospectus
shall be
deemed to refer to and include the documents incorporated by
reference
therein pursuant to Item 12 of Form S-3 which were filed under
the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
on
or before
the date on which the Registration Statement, as amended,
became
effective or the issue date of such preliminary prospectus or
the
date on
which the Prospectus is filed pursuant to Rule 424(b) under the
Act, as
the case may be; and any reference herein to the terms "amend,"
"amendment" or
"supplement" with respect to the Registration Statement,
any
preliminary 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
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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 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
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were made,
not misleading; provided, however, that CWALT makes no
representations, warranties or agreements as to the information
contained
in or omitted from the Prospectus or any revision or amendment
thereof or
supplement thereto in reliance upon and in conformity with
information furnished in writing to CWALT by or on behalf of
any
Underwriter or Broker-Dealer (as defined in the Indemnification
Agreement)
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
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.
(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.
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(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 indicated to be "mortgage related securities" under the
heading
"Summary--Legal Investment" in the Prospectus Supplement will,
when
issued, be a "mortgage related security" as such term is defined
in
Section
3(a)(41) of the Exchange Act.
(f) This Agreement has been duly authorized, executed and
delivered
by CWALT. As of the Closing Date, the Pooling and Servicing
Agreement,
the Indemnification Agreement and each insurance agreement,
if any, referred to in
the Prospectus Supplement (each an "Insurance
Agreement"
and collectively the "Insurance Agreements") between CWALT
and the
third party provider of credit enhancement, if any (the
"Certificate Insurer"), included in the Trust Fund will have been
duly
authorized, executed and delivered by CWALT and will conform in
all
material
respects to the descriptions thereof contained in the
Disclosure
Package and the Prospectus and, assuming the valid execution
and
delivery thereof by the other parties thereto, this Agreement,
each
subsequent
supplemental transfer agreement, if any, referred to in the
Disclosure
Package and the Prospectus Supplement (each a "Supplemental
Transfer
Agreement") and the Pooling and Servicing Agreement each will
constitute
a legal, valid and binding agreement of CWALT enforceable in
accordance
with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting
creditors'
rights generally and by general principles of equity.
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(g) CWALT has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of
Delaware
with
corporate power and authority to own its properties and conduct
its
business
as described in the Disclosure Package and the Prospectus and
to enter
into and perform its obligations under the Pooling and
Servicing
Agreement, each Supplemental Transfer Agreement, the
Indemnification Agreement, the Insurance Agreements and this
Agreement.
(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, each Supplemental Transfer Agreement,
the
Insurance
Agreements 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 CWALT, and CWALT is not in breach or
violation
of or in default (nor has an event occurred which with notice
or lapse
of time or both would constitute a default) under the terms of
(i) any
indenture, contract, lease, mortgage, deed of trust, note,
agreement
or other evidence of indebtedness or other agreement,
obligation
or instrument to which CWALT is a party or by which it or its
properties
are bound, or (ii) any law, decree, order, rule or regulation
applicable
to CWALT of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator
having
jurisdiction over CWALT, or its properties, the default in or
the
breach or
violation of which would have a material adverse effect on
CWALT or
the Certificates or the ability of CWALT to perform its
obligations under the Pooling and Servicing Agreement, the
Indemnification Agreement, each Supplemental Transfer Agreement,
the
Insurance
Agreements or this Agreement; and neither the delivery of the
Certificates, nor
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the
consummation of any other of the transactions contemplated
herein,
nor the
compliance with the provisions of the Pooling and Servicing
Agreement,
the Indemnification Agreement each Supplemental Transfer
Agreement,
the Insurance Agreement 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
CWALT of
the transactions contemplated by the Pooling and Servicing
Agreement,
the Indemnification Agreement, each Supplemental Transfer
Agreement,
the Insurance Agreements or this Agreement (other than as
required
under "blue sky" or state securities laws, as to which no
representations and warranties are made by CWALT), except such as
have
been, or
will have been prior to the Closing Date or Supplemental
Transfer
Date, as applicable, 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.
(j) There is no action, suit or proceeding before or by any
court,
administrative or governmental agency now pending to which CWALT is
a
party, or
to the best of CWALT's knowledge threatened against CWALT
which
could reasonably result individually or in the aggregate in any
material
adverse change in the condition (financial or otherwise),
earnings,
affairs, regulatory situation or business prospects of CWALT
or could
reasonably interfere with or materially and adversely affect
the
consummation of the transactions contemplated in the Pooling
and
Servicing
Agreement,
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the
Indemnification
Agreement,
each Supplemental
Transfer
Agreement,
the
Insurance Agreements or this Agreement.
(k) At the time of execution and delivery of the Pooling and
Servicing
Agreement, (1) CWALT will own the Mortgage Loans being
transferred to the Trust Fund pursuant thereto, free and clear of
any
lien,
mortgage, pledge, charge, encumbrance, adverse claim or other
security
interest (collectively, "Liens"), except to the extent
permitted
in the Pooling and Servicing Agreement, and will not have
assigned
to any person other than the Trust Fund any of its right, title
or
interest in the Mortgage Loans, (2) CWALT will have the power
and
authority
to transfer the Mortgage Loans to the Trust Fund and to
transfer
the Underwritten Public Certificates to you, (3) upon execution
and
delivery to the Trustee of the Pooling and Servicing Agreement,
and
delivery
of the Certificates to CWALT, the Trust Fund will own the
Mortgage
Loans free of Liens other than Liens permitted by the Pooling
and
Servicing Agreement or created or granted by you, and (4) upon
payment
and delivery of the Underwritten Public Certificates to you,
you
will
acquire ownership of the Underwritten Public Certificates, free
of
Liens
other than Liens permitted by the Pooling and Servicing
Agreement
or created
or granted by you. At the time of execution and delivery of
each
Supplemental Transfer Agreement, (1) CWALT will own the
Mortgage
Loans
being transferred to the Trust Fund pursuant thereto, free and
clear of
any Lien, 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) CWALT will have the power and authority to transfer
the
related Mortgage Loans to the Trust Fund, (3) upon execution
and
delivery
to the Trustee of each Supplemental Transfer Agreement, the
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Trust Fund
will own the related Mortgage Loans free of Liens other than
Liens
permitted by the Pooling and Servicing Agreement or created or
granted by you
and (4) CWALT will have complied with the requirements
contained
in the Pooling and Servicing Agreement for transferring the
related
Mortgage Loans.
(l) Any taxes, fees and other governmental charges in
connection
with the
execution, delivery and issuance of the Pooling and Servicing
Agreement,
the Indemnification Agreement, the Insurance Agreements, each
Supplemental Transfer Agreement, this Agreement and the
Certificates
have been
or will be paid by CWALT at or prior to the Closing Date (or
in the
case of each Supplemental Transfer Agreement, the applicable
Supplemental Transfer Date), except for fees for recording
assignments
of the
Mortgage Loans to the Trustee pursuant to the Pooling and
Servicing
Agreement that have not yet been completed, which fees will be
paid by or
on behalf of CWALT in accordance with the Pooling and
Servicing
Agreement.
(m) The Master Servicer or any subservicer who will be
servicing
any
Mortgage Loans pursuant to the Pooling and Servicing Agreement
is
qualified
to do business in all jurisdictions in which its activities as
servicer
or subservicer of the Mortgage Loans serviced by it require
such
qualification except where failure to be so qualified will not
have
a material
adverse effect on such servicing activities.
(n) The transfer of the Mortgage Loans to the Trust Fund at the
Closing
Date will be treated by CWALT for financial accounting and
reporting
purposes as a sale of assets and not as a pledge of assets to
secure
debt.
(o) As of the earliest time after filing of the Registration
Statement
that CWALT or another offering participant made a bona fide
offer
(within the meaning of
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Rule
164(h)(2) under the Act) of the Public Certificates, CWALT was
not
and will
not be an "ineligible issuer" as defined in Rule 405 under the
Act.
(p) CWALT is not doing business with Cuba.
(q) CWALT 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;
(r) CWALT 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, CWALT
agrees to
sell, and each Underwriter agrees, severally and not jointly,
to
purchase from CWALT, the respective Initial Class Certificate
Balance
of each
Class of Underwritten Public Certificates to be purchased by
such
Underwriter as specified in the Prospectus Supplement. The
purchase
price at
which each Underwriter will purchase its Underwritten Public
Certificates shall be as set forth in a separate pricing letter
dated
the date
hereof between each such Underwriter and CWALT (each, a
"Pricing
Letter"), and the terms of each such Pricing Letter are hereby
incorporated herein by reference as if such terms were stated
herein in
their
entirety. References herein to this "Agreement" shall include
the
terms of
each Pricing Letter.
3. Delivery and Payment. The Public Certificates shall be
delivered
at the office, on the date and at the time specified in the
Prospectus
Supplement, which place,
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date and
time may be changed by agreement between the Underwriters and
CWALT
(such date and time of delivery of and payment for such Public
Certificates being 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 CWALT in immediately available federal
funds. The
Underwritten Public Certificates shall be registered in such
names and
in such denominations as the respective Underwriters may have
requested
or as required by book-entry registration not less than [two]
full
business days prior to the Closing Date.
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 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).
(b) Each Underwriter agrees that it shall not enter into any
Contract
of Sale with any investor with respect to any class of
Underwritten Public Certificates with a minimum denomination of
$[1,000]
until the
Base Prospectus and Prospectus Supplement have been delivered
to such
investor.
(c) In the event that an Underwriter uses a "road show" (as
defined in
Rule 433(h)(4) under the Act) in connection with the offering
of the
Underwritten Public Certificates, the Underwriter agrees that
all
information in such road show shall be
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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 cause the slideshow
to
be treated
as a "free writing prospectus" (as defined in Rule 405 under
the
Act).
(d) If any "written communication" (as defined in Rule 405
under
the Act)
in connection with the offering of the Underwritten 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 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. CWALT agrees with each Underwriter that:
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(a) CWALT will cause the Prospectus to be filed with the
Commission
pursuant to Rule 424 under the Act and, if indicated in the
Prospectus, within [15] days of the Closing Date, will file a
report on
Form 8-K
setting forth specific information concerning the Mortgage
Loans, and
will promptly advise each Underwriter when the Prospectus has
been so
filed, and, prior to the termination of the offering of the
Public
Certificates, will also promptly advise each Underwriter (i)
when
any
amendment to the Registration Statement has become effective or
any
revision
of or supplement to the Prospectus has been so filed (unless
such
amendment, revision or supplement does not relate to the
Certificates), (ii) of any request by the Commission for any
amendment
of the
Registration Statement or the Prospectus or for any additional
information (unless such request for additional information does
not
relate to
the Certificates), (iii) of any written notification received
by CWALT
of the suspension of qualification of the Public Certificates
for sale
in any jurisdiction or the initiation or threatening of any
proceeding
for such purpose and (iv) of the issuance by the Commission
of any
stop order suspending the effectiveness of the Registration
Statement
or the institution or to the knowledge of CWALT, the
threatening of any proceeding for that purpose. CWALT will use its
best
efforts to
prevent the issuance of any such stop
