Exhibit 1.1
Credit Suisse First Boston Mortgage Securities Corp.
UNDERWRITING AGREEMENT
$[___________] (Approximate)
Home Equity Mortgage Trust [_____]
Home Equity Mortgage Pass-Through Certificates, Series [______]
[------------]
Credit Suisse First Boston LLC
11 Madison Avenue, 4th Floor
New York, New York 10010
Ladies and Gentlemen:
Credit Suisse First Boston Mortgage Securities Corp., a
corporation
organized and existing under the laws of the State of Delaware
(the
"Depositor"), proposes to sell to Credit Suisse First Boston LLC
("CSFB") (the
"Underwriter") [______] classes of the Depositor's Home Equity
Mortgage
Pass-Through Certificates, Series [______]. Such classes have been
designated as
the Class [list classes] Certificates (collectively, the
"Certificates"). The
Certificates, together with the Depositor's Home Equity Mortgage
Pass-Through
Certificates, Series [____], Class [________] Certificates, will
represent the
entire beneficial ownership interest in a trust fund (the "Trust
Fund")
consisting primarily of a pool of conventional, primarily fixed
rate,
one-to-four family, second lien residential mortgage loans (the
"Initial
Mortgage Loans") having an aggregate principal balance of
approximately
$[________] as of [________] (the "Cut-off Date") and amounts on
deposit in the
Pre-Funding Account. The Initial Mortgage Loans identified on the
Mortgage Loan
Schedule were originated or acquired by various mortgage loan
originators and
sold to DLJ Mortgage Capital, Inc. ("DLJMC"), an affiliate of the
Depositor,
pursuant to one or more mortgage loan purchase agreements. These
Initial
Mortgage Loans were subsequently transferred to the Depositor
pursuant to an
assignment and assumption agreement between the Depositor and
DLJMC, dated as of
[___________] (the "Assignment Agreement").
The Certificates are to be issued pursuant to a Pooling and
Servicing
Agreement to be dated as of [___________] (the "Pooling Agreement")
among the
Depositor, DLJMC, [___________], as trustee (the "Trustee"),
[___________], as a
servicer ("[___________]"),[___________], as a servicer
("[___________]"),[___________], as a servicer ("[___________]",
and together
with [___________] and [___________], the "Servicers") and
[___________], as
special servicer (the "Special Servicer"). The Initial Mortgage
Loans will be
transferred to the Trust Fund pursuant to the Pooling
Agreement.
Capitalized terms used herein but not defined herein shall have
the
meanings provided in the Pooling Agreement.
1. REPRESENTATIONS AND WARRANTIES. The Depositor represents and
warrants to and agrees with the Underwriter that:
(a) The Depositor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (including
a
prospectus) on Form S-3 (No. 333-[___________]) for the
registration
under the Securities Act of 1933, as amended (the "Act"), of
mortgage
pass-through certificates issuable in series. Such registration
statement has been declared effective by the Commission under the
Act.
Such registration statement, including exhibits thereto and any
information incorporated therein by reference, as amended to the
date
of this Agreement, is hereinafter called the "Registration
Statement,"
and such prospectus, in the form in which it was last filed with
the
Commission, as supplemented by a prospectus supplement relating to
the
Certificates to be filed pursuant to Rule 424 under the Act
(such
prospectus supplement in the form first filed after the date
hereof
pursuant to Rule 424 hereinafter called the "Prospectus
Supplement"),
and any information incorporated therein by reference, is
hereinafter
collectively referred to as the "Prospectus." The Depositor
further
proposes to prepare, after the final terms of all classes of
the
Certificates have been established, a Free Writing Prospectus that
will
contain substantially all information that will appear in the
Prospectus
Supplement, to the extent that such information is known at
that time and minus specific sections including the Method of
Distribution section (such Free Writing Prospectus, together with
the
Basic Prospectus, the "Definitive Free Writing Prospectus").
The
Definitive Free Writing Prospectus must be provided to each
investor
prior to the time of Contract of Sale (as defined herein).
(b) The Registration Statement, at the time it became
effective (the "Effective Date"), and the prospectus contained
therein,
and any amendments thereof and supplements thereto filed prior to
the
date hereof, conformed in all material respects to the requirements
of
the Act and the rules and regulations of the Commission thereunder;
and
on the date of this Agreement and on the Closing Date (as
hereinafter
defined), the Registration Statement and the Prospectus, and
any
amendments thereof and supplements thereto, will conform in all
material respects to the requirements of the Act and the rules
and
regulations of the Commission thereunder. The Registration
Statement,
at the time it became effective, did not contain an 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 the Registration Statement
became
effective, as of its date and as of the date hereof, did not
contain an
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;
provided,
however, that the Depositor makes no representations or warranties
as
to either (i) any information contained in or omitted from the
portions
of the Prospectus set forth under the caption "Method of
Distribution"
relating to the Certificates and the stabilization legend required
by
Item 502(d)(1) under Regulation S-K of the Act (the
"Underwriter
Information") or (ii) any decrement or yield tables set forth in
the
section titled "Yield on the Certificates" in the Prospectus
Supplement
(the "Decrement/Yield Tables"). In addition, the Definitive
Free
Writing Prospectus, as of the date thereof and as of the Closing
Date,
did not and will not contain an untrue statement of a material fact
and
did not and will not omit 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. The effective date shall mean
the
earlier of the date by which the Prospectus Supplement is first
used
and the time of the first Contract of Sale to which such
Prospectus
Supplement relates.
(c) The Certificates
will conform to the description thereof
contained in the Prospectus and the Certificates will on the
Closing
Date be duly and validly authorized; and, when validly
executed,
authenticated, issued and delivered in accordance with the
Pooling
Agreement, the Certificates will be validly issued and outstanding
and
entitled to the benefits of the Pooling Agreement.
(d) The Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the
jurisdiction of its incorporation, with corporate power and
authority
to own, lease and operate its properties and to conduct its
business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Assignment Agreement and
the
Pooling Agreement.
(e) At or prior to the Closing Date, the Depositor will have
entered into the Assignment Agreement with respect to the transfer
of
the Initial Mortgage Loans to the Depositor by DLJMC and, assuming
the
due authorization, execution and delivery thereof by the other
parties
thereto, the Assignment Agreement on the Closing Date will
constitute a
valid and binding agreement of the Depositor, enforceable in
accordance
with its terms, except as may be limited by bankruptcy,
insolvency,
reorganization or other laws relating to or affecting the
enforcement
of creditors' rights and by general equity principles.
(f) At or prior to the Closing Date, the Depositor will have
entered into the Pooling Agreement with respect to the
Certificates,
and assuming the due authorization, execution and delivery thereof
by
the other parties thereto, the Pooling Agreement on the Closing
Date
will constitute a valid and binding agreement of the Depositor
enforceable in accordance with its terms, except as may be limited
by
bankruptcy, insolvency, reorganization or other laws relating to
or
affecting the enforcement of creditors' rights and by general
equity
principles.
(g) Neither the issuance or sale of the Certificates nor the
consummation of any other of the transactions herein contemplated,
nor
the fulfillment of the terms hereof, will conflict with or violate
any
term or provision of the certificate of incorporation or by-laws of
the
Depositor or any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency
or
governmental body having jurisdiction over the Depositor, and will
not
conflict
with, result in a breach or violation or the acceleration of,
or constitute a default under, the terms of any indenture or
other
agreement or instrument to which the Depositor is a party or by
which
it is bound.
(h) This Agreement has been duly authorized, executed and
delivered by the Depositor.
(i) No consent, approval, authorization or order of any court
or governmental authority or agency is required for the
consummation by
the Depositor of the transactions contemplated by this
Agreement,
except such as may be required under the Act, the Rules and
Regulations
or state securities or Blue Sky laws or have previously been
obtained.
(j) Immediately prior to the transfer of the Initial Mortgage
Loans to the Trustee as contemplated by the Pooling Agreement,
the
Depositor (i) will have good title to, and will be the sole owner
of,
the Initial Mortgage Loans being transferred by it to the
Trustee
pursuant thereto, free and clear of any lien, pledge, encumbrance
or
other security interest (collectively, "Liens"), (ii) will not
have
assigned to any person any of its right, title or interest in
such
Initial Mortgage Loans or in the Pooling Agreement, and (iii) will
have
the power and authority to sell such Initial Mortgage Loans to
the
Trustee, and upon the execution and delivery of the Pooling
Agreement
by the Trustee, the Trustee will have acquired all of the
Depositor's
right, title and interest in and to the Initial Mortgage Loans,
and
upon delivery to the Underwriter of the Certificates and payment by
the
Underwriter upon receipt of the Certificates, the Underwriter will
have
title to the Certificates free of Liens.
(k) Neither the Depositor nor the Trust created by the Pooling
Agreement is an "investment company" within the meaning of such
term
under the Investment Company Act of 1940, as amended (the "1940
Act")
and the rules and regulations of the Commission thereunder.
(1) Any taxes, fees and other governmental charges in
connection with the execution and delivery of this Agreement and
the
Pooling Agreement and the execution, issuance, delivery and sale of
the
Certificates which have become due or will be due on or prior to
the
Closing Date, shall have been or will be paid on or prior to
the
Closing Date.
(m) The Depositor is not, as of the date upon which it
delivers the Definitive Free Writing Prospectus, an Ineligible
Issuer,
as such term is defined in Rule 405 of the 1933 Act
Regulations.
2. PURCHASE AND SALE. Subject to the terms and conditions and
in
reliance upon the representations and warranties herein set forth,
the Depositor
agrees to sell to the Underwriter, and the Underwriter agrees to
purchase from
the Depositor, all of the Certificates at the purchase price set
forth in
Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Certificates
shall be made at 9:00 a.m. EST on [___________] which date and time
may be
postponed by agreement between the Underwriter and the Depositor
(such date and
time being herein called the "Closing Date"). The Certificates
(other than the
Class [___________] Certificates) will be delivered in book-entry
form through
the facilities of The Depository Trust Company. The Class
[___________]
Certificates will be issued in fully registered certificated form.
Delivery of
the Certificates shall be made to the Underwriter against payment
by the
Underwriter of the purchase price therefor to or upon the order of
the Depositor
by certified or official bank check or checks payable in federal or
other
immediately available funds. The Certificates shall be registered
in such names
and in such denominations as CSFB may request not less than three
full business
days in advance of the Closing Date.
The Depositor agrees to notify the Underwriter at least two
business
days before the Closing Date of the exact principal balance
evidenced by the
Certificates and to have the Certificates available for inspection,
checking and
packaging in New York, New York, no later than 12:00 noon on the
business day
prior to the Closing Date.
4. OFFERING BY UNDERWRITER.
(a) It is understood that each Underwriter proposes to offer
and/or solicit offers for the Certificates to be purchased by it
for
sale to the public as set forth in the Prospectus and each
Underwriter
agrees that all such offers, solicitations and sales by it shall
be
made in compliance with all applicable laws and regulations. Prior
to
the date hereof, you have not offered, pledged, sold, disposed of
or
otherwise transferred any Certificate or any security backed by
the
Mortgage Loans, any interest in any Certificate or such security or
any
Mortgage Loan.
(b) It is understood that each Underwriter will solicit offers
to purchase the Certificates as follows:
(1) Prior to the time you have received the
Definitive Free Writing Prospectus you may, in compliance with
the provisions of this Agreement, solicit offers to purchase
Certificates; provided, that you shall not accept any such
offer to purchase a Certificate or any interest in any
Certificate or Mortgage Loan or otherwise enter into any
Contract of Sale for any Certificate, any interest in any
Certificate or any Mortgage Loan prior to the investor's
receipt of Definitive Free Writing Prospectus.
(2) Any Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) relating to the
Certificates used by an Underwriter in compliance with the
terms of this Agreement prior to the time such Underwriter has
entered into a Contract of Sale for Certificates shall
prominently set forth substantially the following statement:
The information in this free writing prospectus is
preliminary, and will be superseded by the Definitive Free
Writing Prospectus. This free writing prospectus is being
delivered to you solely to provide you with information about
the offering of the Certificates referred to in this free
writing prospectus and to solicit an offer to purchase the
Certificates, when, as and if issued. Any such offer to
purchase made by you will not be accepted and will not
constitute a contractual commitment by you to purchase any of
the Certificates until we have accepted your offer to purchase
Certificates. We will not accept any offer by you to purchase
Certificates, and you will not have any contractual commitment
to purchase any of the Certificates until after you have
received the Definitive Free Writing Prospectus. You may
withdraw your offer to purchase Certificates at any time prior
to our acceptance of your offer.
"Written Communication" has the same meaning as that term is
defined in Rule 405 of the 1933 Act Regulations. (3) Any Free
Writing Prospectus relating to Certificates and used by an
Underwriter in connection with marketing the Certificates,
including the Definitive Free Writing Prospectus, shall
prominently set forth substantially the following statement:
The Certificates referred to in these materials are being sold
when, as and if issued. You are advised that Certificates may
not be issued that have the characteristics described in these
materials. Our obligation to sell such Certificates to you is
conditioned on the mortgage loans and certificates having the
characteristics described in these materials. If for any
reason we do not deliver such Certificates, we will notify
you, and neither the issuer nor any underwriter will have any
obligation to you to deliver all or any portion of the
Certificates which you have committed to purchase, and none of
the issuer nor any underwriter will be liable for any costs or
damages whatsoever arising from or related to such
non-delivery.
(c) It is understood that you will not enter into a Contract
of Sale with any investor until the Definitive Free Writing
Prospectus
has been conveyed to the investor. For purposes of this
Agreement,
Contract of Sale has the same meaning as in Rule 159 of the 1933
Act
Regulations and all Commission guidance relating to Rule 159.
The
Definitive Free Writing Prospectus shall prominently set forth
substantially the following statement:
This Definitive Free Writing Prospectus supersedes the
information in any free writing prospectus previously
delivered in connection with this offering, to the extent that
this Definitive Free Writing Prospectus is inconsistent with
any information in any free writing prospectus delivered in
connection with this offering.
(d) It is understood that each Underwriter may prepare and
provide to prospective investors certain Free Writing Prospectuses
(as
defined below), subject to the following conditions:
(1) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act, an
Underwriter shall not convey or deliver any Written
Communication to any person in connection with the initial
offering of the Certificates, unless such Written
Communication either (i) is made in reliance on Rule 134 under
the Act, (ii) constitutes a prospectus satisfying the
requirements of Rule 430B under the Act, (iii) is the
Definitive Free Writing Prospectus, or (iv) both (1)
constitutes a Free Writing Prospectus (as defined below) used
in reliance on Rule 164 and (2) includes only information that
is within the definition of ABS Informational and
Computational Materials as defined in Item 1100 of Regulation
AB, or Permitted Additional Materials.
(2) Each Underwriter shall comply with all applicable
laws and regulations in connection with the use of Free
Writing Prospectuses, including but not limited to Rules 164
and 433 of the 1933 Act Regulations and all Commission
guidance relating to Free Writing Prospectuses, including but
not limited to Commission Release No. 33-8591.
(3) For purposes hereof, "Free Writing Prospectus"
shall have the meaning given such term in Rules 405 and 433 of
the 1933 Act Regulations. "Issuer Information" shall mean
information included in a Free Writing Prospectus that both
(i) is within the types of information specified in clauses
(1) to (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform) as shown in Exhibit C hereto and
(ii) has been either prepared by, or has been reviewed and
approved by, the Depositor. "Underwriter Derived Information"
shall refer to information of the type described in clause (5)
of such footnote 271
when prepared by an Underwriter.
"Permitted Additional Materials" shall mean information that
is not ABS Informational and Computational Materials and (x)
that are referred to in Section 4(d)(12)), (y) that constitute
Certificate price, yield, weighted average life, subscription
or allocation information, or a trade confirmation, or (z)
otherwise with respect to which the Depositor has provided
written consent to the Underwriter to include in a Free
Writing Prospectus. As used herein with respect to any Free
Writing Prospectus, "Pool Information" means the information
with respect to the characteristics of the Mortgage Loans and
administrative and servicing fees, as provided by or on behalf
of the Depositor to the Underwriter at the time most recent to
the date of such Free Writing Prospectus.
(4) All Free Writing Prospectuses provided to
prospective investors, whether or not filed with the
Commission, shall bear a legend including substantially the
following statement:
"THE DEPOSITOR HAS FILED A REGISTRATION STATEMENT (INCLUDING A
PROSPECTUS) WITH THE SEC FOR THE OFFERING TO WHICH THIS
COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE
PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS
THE ISSUER HAS FILED WITH THE SEC FOR MORE COMPLETE
INFORMATION ABOUT THE ISSUER AND THE OFFERING. YOU MAY GET
THESE DOCUMENTS AT NO CHARGE BY VISITING EDGAR ON THE SEC WEB
SITE AT WWW.SEC.GOV [AT "_______________________", OR AT
UNDERWRITER WEBSITE]. ALTERNATIVELY, THE ISSUER, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL
ARRANGE TO SEND YOU THE PROSPECTUS AT NO CHARGE IF YOU REQUEST
IT BY CALLING TOLL-FREE 1-8XX-XXX-XXXX OR VIA E-MAIL AT
________________________.
The
Depositor shall have the right to require additional
specific legends or notations to appear on any Free Writing
Prospectus, the right to require changes regarding the use of
terminology and the right to determine the types of
information appearing therein with the approval of the
Underwriter (which shall not be unreasonably withheld).
(5) Each Underwriter shall deliver to the Depositor
and its counsel (in such format as required by the Depositor)
prior to the proposed date of first use thereof, (i) any Free
Writing Prospectus prepared by or on behalf of that
Underwriter that contains any information that, if reviewed
and approved by the Depositor, would be Issuer Information,
and (ii) any Free Writing Prospectus or portion thereof
prepared by that Underwriter that contains only a description
of the final terms of the Certificates after such terms have
been established for all classes of Certificates being
publicly offered. No information in any Free Writing
Prospectus (other than the Definitive Free Writing Prospectus)
shall consist of information of a type that is not included
within the definition of ABS Informational and Computational
Materials, or is not Permitted Additional Materials. To
facilitate filing to the extent required by Section 5(b) or
4(f), as applicable, all Underwriter Derived Information shall
be set forth in a document separate from the document
including Issuer Information. All Free Writing Prospectuses
described in this subsection (5) must be approved by the
Depositor before the Underwriter provides the Free Writing
Prospectus to investors pursuant to the terms of this
Agreement. Notwithstanding the foregoing, the Underwriter
shall not be required to deliver any Free Writing Prospectus
to the extent that it does not contain substantive changes
from or additions to any Free Writing Prospectus previously
approved by the Depositor.
(6) Each Underwriter shall provide the Depositor with
a letter from [_____________], certified public accountants,
prior to the Closing Date, with respect to any Free Writing
Prospectus provided by that Underwriter to the Depositor under
Section 4(d)(5),
satisfactory in form and substance to the
Depositor and their counsel and the Underwriter, to the effect
that such accountants have performed certain specified
procedures, all of which have been agreed to by the Depositor
and the Underwriter, as a result of which they determined that
all accounting, financial or statistical information that is
included in such Free Writing Prospectus, is accurate except
as to such matters that are not deemed by the Depositor and
the Underwriter to be material. The foregoing letter shall be
at the expense of the respective Underwriter.
(7) None of the information in the Free Writing
Prospectuses may conflict with the information contained in
the Prospectus or the Registration Statement.
(8) The Depositor shall not be obligated to file any
Free Writing Prospectuses that have been determined to contain
any material error or omission, unless the Depositor is
required to file the Free Writing Prospectus pursuant to
Section 5(b) below. In the event that an Underwriter becomes
aware that, as of the date on which an investor entered into
an agreement to purchase any Certificates, any Free Writing
Prospectus
prepared by or on behalf of that Underwriter and
delivered to such investor contained any untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements
