EXHIBIT 1.1
CWMBS, INC.
Mortgage Pass-Through 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:
CWMBS, Inc., a Delaware corporation ("CWMBS"), 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
CWMBS 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 CWMBS (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 CWMBS 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 CWMBS, 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, CWMBS 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. CWMBS 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 CWMBS,
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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 CWMBS'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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<PAGE>
were made, not misleading; provided, however, that CWMBS 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 CWMBS 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 CWMBS. 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 CWMBS 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 CWMBS 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 CWMBS 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) CWMBS 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 CWMBS, and
CWMBS 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
CWMBS is a party or by which it or its properties are bound, or
(ii)
any law, decree, order, rule or regulation applicable to CWMBS of
any
court or supervisory, regulatory, administrative or
governmental
agency, body or authority, or arbitrator having jurisdiction
over
CWMBS, or its properties, the default in or the breach or
violation
of which would have a material adverse effect on CWMBS or the
Certificates or the ability of CWMBS 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
CWMBS 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 CWMBS), 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
CWMBS is a party, or to the best of CWMBS's knowledge
threatened
against CWMBS 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 CWMBS 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) CWMBS 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) CWMBS 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 CWMBS, 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) CWMBS 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)
CWMBS
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) CWMBS 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 CWMBS 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 CWMBS
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 CWMBS 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 CWMBS 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, CWMBS
was
not and will not be an "ineligible issuer" as defined in Rule
405
under the Act.
(p) CWMBS is not doing business with Cuba.
(q) CWMBS 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) CWMBS 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, CWMBS agrees to sell, and each Underwriter agrees,
severally
and not jointly, to purchase from CWMBS, 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 CWMBS (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 CWMBS (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 CWMBS 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) (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. CWMBS agrees with each Underwriter that:
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(a) CWMBS 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 CWMBS 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 CWMBS, the threatening of
any
proceeding for that purpose. CWMBS will use its best efforts to
prevent the
