Exhibit 1.1
Credit Suisse First Boston Mortgage Acceptance Corp.
UNDERWRITING AGREEMENT
$[___________] (Approximate)
Home Equity Mortgage Trust [_____]
Home Equity Mortgage Pass-Through Certificates, Series [______]
[____________]
Credit Suisse Securities (USA) LLC
11 Madison Avenue, 4th Floor
New York, New York 10010
Ladies and Gentlemen:
Credit
Suisse First Boston Mortgage Acceptance Corp., a corporation
organized and existing under the laws of the State of Delaware
(the
"Depositor"), proposes to sell to Credit Suisse Securities (USA)
LLC ("Credit
Suisse") (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 Credit Suisse 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 Pro
