EXHIBIT 1.1(a)
CWHEQ, INC.
Revolving Home Equity Loan Asset Backed Notes, 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
and in any Terms Agreement hereto
Ladies and Gentlemen:
CWHEQ, Inc., a Delaware corporation ("CWHEQ"), proposes to
cause
to be issued and to sell, severally and not jointly, to you, as
underwriter,
the principal amount of Asset Backed Notes of the series specified
on the
signature page hereof and described in Section 2 hereof (the
"Notes") having
the characteristics set forth in the Prospectus Supplement (as
defined below).
The Notes will be issued by CWHEQ Revolving Home Equity Loan Trust,
Series
200_-_ (the "issuing entity"). The issuing entity is a Delaware
statutory
trust formed pursuant to the Trust Agreement, dated _______, 200_
(the "Trust
Agreement") between CWHEQ and Wilmington Trust Company, as owner
trustee (the
"Owner Trustee"). The Notes will be issued pursuant to an
Indenture, dated as
of _______, 200_ (the "Indenture"), between the issuing entity and
JPMorgan
Chase Bank, N.A., as indenture trustee (the "Indenture Trustee"),
and will be
secured by the pledge of a pool of mortgage loans secured by first
or second
liens on one- to four-family residential properties (the "Mortgage
Loans").
The Mortgage Loans will be sold by Countrywide Home Loans, Inc.
("Countrywide"), as sponsor (in such capacity, the "Sponsor") to
CWHEQ
pursuant to a purchase agreement, dated as of _______, 200_ (the
"MLPA"), and
by CWHEQ to the issuing entity pursuant to the Sale and Servicing
Agreement,
dated as of
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_______, 200_ (the "SSA"), among CWHEQ, the issuing entity,
Countrywide, as
master servicer (in such capacity, the "Master Servicer"), and the
Indenture
Trustee. The Mortgage Loans will be of the type and will have
the
characteristics described in the Prospectus Supplement, subject to
the
variances, ranges, minimums and maximums set forth in the
Prospectus
Supplement, and will have the aggregate principal balance set forth
in the
Prospectus Supplement, subject to an upward or downward variance in
principal
balance, not to exceed the percentage set forth in the Prospectus
Supplement,
the precise aggregate principal balance within such range to be
determined by
CWHEQ in its sole discretion.
This Agreement (as defined below), the Indemnification and
Contribution Agreement, the Trust Agreement, the Custodial
Agreement, the
MLPA, the SSA, the Indenture and the Insurance Agreement are
sometimes
referred to herein collectively as the "Transaction Documents." The
Notes 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
Indenture or
the SSA.
The Notes will have the benefit of a financial guaranty
insurance
policy (the "Policy") issued by [LOAN INSURER] (the "Loan Insurer")
pursuant
to the Insurance Agreement, dated as of _______, 200_ (the
"Insurance
Agreement"), among CWHEQ, the Sponsor, the Trust, the Indenture
Trustee and
the Loan Insurer.
Whenever CWHEQ determines to make an offering of the Notes
(each,
an "Offering") pursuant to this Underwriting Agreement through you,
it will
enter into an agreement (the "Terms Agreement," and collectively
with this
Underwriting Agreement, this "Agreement") providing for the sale of
a
specified amount of Notes to, and the purchase and public offering
thereof by,
you and such other underwriters, if any, as have entered into
such
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Terms Agreement (the underwriters designated in any such Terms
Agreement
referred to herein as "Underwriters," which term shall include you
and each
Underwriter specified in the related Terms Agreement whether acting
alone in
the sale of any Notes or as a member of an underwriting syndicate).
Each such
Offering which CWHEQ elects to make pursuant to this Agreement
shall be
governed by this Agreement, and this Agreement shall inure to the
benefit of
and be binding upon each Underwriter with respect to such Offering.
Each Terms
Agreement, which shall be substantially in the form of Exhibit A
hereto, shall
specify, among other things, the principal balance of the Notes to
be
purchased in the Offering (the "Offered Notes"), each subject to
any stated
variance, the names of the Underwriters participating in such
Offering
(subject to substitution as provided in Section 10 hereof) and the
price or
prices at which such Offered Notes are to be purchased by the
Underwriters
from CWHEQ.
1. Representations and Warranties. CWHEQ represents and
warrants
to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No.
333-[_______]),
including
a prospectus, has been filed with the Securities and Exchange
Commission
(the "Commission") and, as amended, has become effective
under the
Securities Act of 1933, as amended (the "Act"). As of the date
of each
Contract of Sale (as defined in the indemnification agreement,
dated the
date hereof (the "Indemnification Agreement") among CWHEQ, CHL
and the
other parties named therein) and as of each 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 CWHEQ's knowledge, threatened by the
Commission. The prospectus in the form in which it will be used
in
connection
with the offering of the Notes (the "Base Prospectus")
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is
proposed to be supplemented by a prospectus supplement dated the
date
hereof
relating to the Notes and, if so specified in the related Terms
Agreement,
as further supplemented by a supplement to the prospectus
supplement
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, together with any related supplements, if applicable,
as
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 Notes,
including
documents incorporated therein as of the time of such filing
and as
supplemented by the Prospectus Supplement, together with any
related
supplements, if applicable, 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 [February ], 2006. 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 Registration
Statement
became effective or
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the issue
date of any preliminary prospectus or the date on which the
Prospectus
is filed pursuant to Rule 424(b) under the Act, as the case
may be,
deemed to be incorporated therein by reference.
(b) The Registration Statement and the Base Prospectus, as of
the
time the
Registration Statement became effective did, and the
Registration Statement and the Prospectus, as of the date of the
related
Prospectus
Supplement and the Registration Statement as of the date of
each
Contract of Sale will, conform, and the Registration Statement
and
the
Prospectus as revised, amended or supplemented prior to the
termination of the Offering of the related Offered Notes, as of
their
respective
effective or issue dates and the Registration Statement as of
the date
of each Contract of Sale, will conform in all material respects
to the
requirements of the Act and the rules and regulations of the
Commission
thereunder applicable to such documents as of such respective
dates, and
the Registration Statement and the related Prospectus as
revised,
amended or supplemented as of the applicable 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 applicable 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 related Prospectus as
of
the date
of the applicable Prospectus Supplement, and the Prospectus as
revised,
amended or supplemented prior to the applicable Closing Date,
as of such
Closing Date, will not include any untrue statement of a
material
fact and will not omit to state a material fact necessary to
make
the
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statements
therein, in light of the circumstances under which they were
made, not
misleading; provided, however, that CWHEQ makes no
representations, warranties or agreements as to (i) the
Underwriter
Information contained in or omitted from the related Prospectus or
any
revision
or amendment thereof or supplement thereto, such Underwriter
Information being defined in the Indemnification Agreement, and
(ii) the
information contained in the Prospectus Supplement under the
headings
"The Loan
Insurer" and "Description of the Notes--The Policy."
(c) The issuing entity 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
"issuing
entity 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
issuing
entity
Free Writing Prospectus has been filed with the Commission as
required by Rule 433.
The issuing entity 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.
(e) The Notes will conform in all material respects to the
description thereof contained in the Disclosure Package and the
Prospectus, and each of the Notes, when
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validly
authenticated, issued and delivered in accordance with the
Indenture,
will be duly and validly issued and outstanding, will
constitute
the legal, valid and binding obligations of the issuing
entity,
enforceable in accordance with their terms, subject, as to
enforceability, to bankruptcy, insolvency and similar laws
affecting the
rights of
creditors generally and to general principles of equity, and
will be
entitled to the benefits and security afforded by the
Indenture.
(f) Each of this Agreement and the Indemnification Agreement
has
been duly
authorized, executed and delivered by CWHEQ. As of the Closing
Date, the
Indenture and each Transaction Document to which CWHEQ is a
party will
have been duly authorized, executed and delivered by CWHEQ
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,
the Indemnification Agreement and each such Transaction
Document
will constitute a legal, valid and binding agreement of CWHEQ
enforceable in accordance with its terms, except as the same may
be
limited
(a) by bankruptcy, insolvency, reorganization or other similar
laws
affecting creditors' rights generally, (b) by general principles
of
equity and
(c) by public policy limitations under applicable securities
laws as to
rights of indemnification and contribution thereunder. On the
Closing
Date, the Trust Agreement will be effective to establish the
issuing
entity as a valid statutory trust under the laws of the State
of
Delaware.
(g) CWHEQ has been duly incorporated and is validly existing as
a
corporation in good standing under the laws of the State of
Delaware
with
corporate power and authority to own its properties and conduct
its
business
as described in the
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Disclosure
Package and the Prospectus and to enter into and perform its
obligations under the Indemnification Agreement and the
applicable
Transaction Documents.
(h) Neither the issuance or delivery of the Notes, nor the
consummation of any other of the transactions contemplated herein,
nor
compliance
with the provisions of the Indemnification Agreement or the
applicable
Transaction Documents, will conflict with or result in the
breach of
any material term or provision of the certificate of
incorporation or bylaws of CWHEQ, and CWHEQ is not in breach or
violation
of or in default (nor has an event occurred which with notice
or lapse
of time or both would constitute a default) under the terms of
(i) any
indenture, contract, lease, mortgage, deed of trust, note,
agreement
or other evidence of indebtedness or other agreement,
obligation
or instrument to which CWHEQ is a party or by which it or its
properties
are bound, or (ii) any law, decree, order, rule or regulation
applicable
to CWHEQ of any court or supervisory, regulatory,
administrative or governmental agency, body or authority, or
arbitrator
having
jurisdiction over CWHEQ, or its properties, the default in or
the
breach or
violation of which would have a material adverse effect on
CWHEQ or
the Notes or the ability of CWHEQ to perform its obligations
under the
Indemnification Agreement or the applicable Transaction
Documents;
and neither the delivery of the Notes, nor the consummation
of any
other of the transactions contemplated herein, nor the
compliance
with the
provisions of the Indemnification Agreement or the applicable
Transaction Documents 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
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the
consummation by CWHEQ of the transactions contemplated by the
Indemnification Agreement or the applicable Transaction Documents
(other
than as
required under "blue sky" or state securities laws, as to which
no
representations and warranties are made by CWHEQ), except such
as
have been,
or will have been prior to the Closing Date or Subsequent
Transfer
Date, as applicable, obtained under the Act, and such
recordations of the assignment of the Mortgage Loans to the
Indenture
Trustee
(to the extent such recordations are required pursuant to the
Indenture)
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 CWHEQ or
any
of its
affiliates is a party, or to the best of CWHEQ's knowledge
threatened
against CWHEQ or any of its affiliates, which could
reasonably
result individually or in the aggregate in any material
adverse
change in the condition (financial or otherwise), earnings,
affairs,
regulatory situation or business prospects of CWHEQ or could
reasonably
interfere with or materially and adversely affect the
consummation of the transactions contemplated in the
Indemnification
Agreement
or the Transaction Documents.
(k) At the time of execution and delivery of the SSA, (1) CWHEQ
will own
the Mortgage Loans being transferred to the issuing entity
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 Indenture, and will not
have
assigned to any person other than the issuing entity any of its
right,
title or interest in the Mortgage Loans, (2) CWHEQ will have
the
power and
authority to transfer the Mortgage Loans to the issuing entity
and to
transfer the Notes to the Underwriter, (3) upon execution and
delivery
to the Owner Trustee of the Trust Agreement, and delivery
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of the
Transferor Certificates and the Notes to CWHEQ, the issuing
entity
will own the Mortgage Loans free of Liens, other than Liens
permitted
by the Indenture or granted by the Underwriter, and (4) upon
payment
and delivery of the Notes to the Underwriter, the Underwriter
will
acquire ownership of the Notes, free of Liens, other than Liens
permitted
by the Indenture.
(l) Any taxes, fees and other governmental charges in
connection
with the
execution, delivery and issuance of the Indemnification
Agreement,
the Transaction Documents and the Notes have been or will be
paid by
CWHEQ at or prior to the Closing Date, except for fees for
recording
assignments of the Mortgage Loans to the Indenture Trustee
pursuant
to the Indenture that have not yet been completed, which fees
will be paid by or on
behalf of CWHEQ in accordance with the Indenture.
(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 failure to be so qualified will
not have a
material adverse effect on such servicing activities.
(n) CWHEQ is not doing business with Cuba.
(o) CWHEQ is not in violation of its certificate of
incorporation
or bylaws or in
default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
contract,
indenture,
mortgage, loan agreement, note, lease or other instrument to
which it
is a party or by which it or its properties may be bound, which
default
might result in any material adverse change in the financial
condition,
earnings, affairs or business of CWHEQ or which might
materially
and adversely affect the properties or assets thereof.
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(p) Neither CWHEQ nor the issuing entity will be subject to
registration as an "investment company" under the Investment
Company Act
of 1940,
as amended (the "1940 Act").
(q) CWHEQ possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal
or
foreign
regulatory agencies or bodies necessary to conduct the business
now
operated by it and as described in the Prospectus and CWHEQ has
received
no notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or
permit
which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling
or finding, would materially and adversely affect the
business,
operations, financial condition or earnings of CWHEQ.
(r) As of the earliest time after filing of the Registration
Statement
that CWHEQ or another offering participant made a bona fide
offer
(within the meaning of Rule 164(h)(2) under the Act) of the
Notes,
CWHEQ was
not and will not be an "ineligible issuing entity" as defined
in Rule
405 under the Act.
(s) CWHEQ 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 Notes that would constitute a "free
writing
prospectus" as defined in Rule 405 under the Act;
(t) CWHEQ has complied and will comply with the requirements of
Rule 433
under the Act applicable to the issuing entity Free Writing
Prospectus, including timely filing with the Commission or
retention
where
required and legending.
(u) The Indenture has been duly qualified under the Trust
Indenture
Act of 1939, as amended.
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2. Purchase and Sale. Subject to the execution of the Terms
Agreement for a particular Offering and subject to the terms and
conditions
and in reliance upon the representations and warranties set forth
in this
Agreement and such Terms Agreement, CWHEQ agrees to sell, and each
Underwriter
agrees, severally and not jointly, to purchase from CWHEQ, the
respective
initial balance of the Offered Notes to be purchased by such
Underwriter as
specified in the related Terms Agreement. The purchase price at
which each
Underwriter will purchase the Offered Notes shall be the price
shown in the
applicable Terms Agreement.
The parties hereto agree that settlement for all securities
sold
pursuant to this Agreement shall take place on the terms set forth
herein and
not as set forth in Rule 15c6-1(a) under the Exchange Act.
3. Delivery and Payment. The Offered Notes shall be delivered
at
the offices of Sidley Austin LLP, New York, New York, at 10:00 a.m.
New York
City time, on the date specified in the applicable Prospectus
Supplement,
which place, date and time may be changed by agreement between
the
Underwriters and CWHEQ (such date and time of delivery of and
payment for such
Offered Notes being referred to herein as the applicable "Closing
Date").
Delivery of the Offered Notes shall be made to each of the
related
Underwriters as against their respective payment of the purchase
price
therefor to or upon the order of CWHEQ in immediately available
federal funds.
The Offered Notes 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 Offered Notes for sale as set
forth in the
related Prospectus and that the Underwriters will not offer, sell
or otherwise
distribute the Offered Notes (except for the sale thereof in
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exempt transactions) in any state in which the Offered Notes are
not exempt
from registration under "blue sky" or state securities laws (except
where the
Offered Notes will have been qualified for offering and sale at
the
Underwriters' 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 Notes
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 used a "road show" (as
defined in
Rule 433(h)(4) under the Act) in connection with the offering
of the
Notes, 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).
(d) If any "written communication" (as defined in Rule 405
under
the Act)
in connection with the offering of the Notes 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
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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. CWHEQ agrees with each Underwriter that:
(a) CWHEQ will cause each Prospectus to be filed with the
Commission
pursuant to Rule 424 under the Act and, if necessary, within
15 days of
_______, 200_, will file a report on Form 8-K setting forth
specific
information concerning the Mortgage Loans, and will promptly
advise
each Underwriter when the applicable Prospectus has been so
filed,
and, prior to the termination of the related Offering, 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 Notes), (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
Notes),
(iii) of
any written notification received by CWHEQ of the suspension of
qualification of the Notes for sale in any jurisdiction or the
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initiation
or threatening of any proceeding for such purpose and (iv) of
the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
to the
knowledge of
CWHEQ, the threatening of any proceeding for that purpose.
CWHEQ will
use its best efforts to prevent the issuance of any such stop
order and,
if issued, to obtain as soon as possible the withdrawal
thereof.
Except as otherwise provided in Section 5(b) hereof,
