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
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 XXXXX ON THE SEC WEB
SITE AT XXX.XXX.XXX [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 contained therein, in light of
the circumstances under which they were made, not misleading
(such Free Writing Prospectus, a "Defective Free Writing
Prospectus"), such Underwriter shall notify the Depositor
thereof as soon as practical but in any event within one
business day after discovery.
(9) If any Underwriter does not provide any Free
Writing Prospectuses to the Depositor pursuant to subsection
(e) above, that Underwriter shall be deemed to have
represented, as of the Closing Date, that it did not provide
any prospective investors with any information in written or
electronic form in connection with the offering of the
Certificates that is required to be filed with the Commission
by the Depositor as a Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) in accordance with the
1933 Act Regulations.
(10) In the event of any delay in the delivery by the
Underwriter to the Depositor of any Free Writing Prospectuses
required to be delivered in accordance with subsection (5)
above, or in the delivery of the accountant's comfort letter
in respect thereof pursuant to subsection (6) above, the
Depositor shall have the right to delay the release of the
Prospectus to investors or to the Underwriter, to delay the
Closing Date and to take other appropriate actions in each
case as necessary in order to allow the Depositor to comply
with its agreement set forth in Section 5(b) to file the Free
Writing Prospectuses by the time specified therein.
(11) Each Underwriter represents that it has in place,
and covenants that it shall maintain internal controls and
procedures which it reasonably believes to be sufficient to
ensure full compliance with all applicable legal requirements
of the 1933 Act Regulations with respect to the generation and
use of Free Writing Prospectuses in connection with the
offering of the Certificates. In addition, each Underwriter
shall, for a period of at least three years after the date
hereof, maintain written and/or electronic records of any Free
Writing Prospectus used to solicit offers to purchase
Certificates to the extent not filed with the Commission.
(12) It is understood and agreed that all information
provided by any Underwriter to or through Bloomberg or Intex
or similar entities for use by prospective investors, or
imbedded in any CDI file provided to prospective investors, to
the extent constituting a Free Writing Prospectus, shall be
deemed for all purposes hereof to be a Free Writing Prospectus
not containing Issuer Information. In connection therewith,
the Underwriter agrees that it shall not provide any
information constituting Issuer Information through the
foregoing media unless that information is contained either in
the Definitive Free Writing Prospectus or in a Free Writing
Prospectus delivered in compliance with Section 4(d)(5).
(e) Each Underwriter covenants with the Depositor that after
the final Prospectus is available such Underwriter shall not
distribute any written information concerning the Certificates to a
prospective investor unless such information is preceded or
accompanied by the final Prospectus. It is understood and agreed
that the use of written information in accordance with the preceding
sentence is not a Free Writing Prospectus and is not otherwise
restricted or governed in any way by this Agreement.
(f) Each Underwriter shall file any Free Writing Prospectus
that has been distributed by that Underwriter in a manner that could
lead to its broad, unrestricted dissemination not later than the
date of first use, provided that if that Free Writing Prospectus
contains only information of a type included within the definition
of ABS Informational and Computational Materials then such filing
shall be made within the later of two business days after the
Underwriter first provides this information to investors and the
date upon which the Depositor is required to file the Prospectus
Supplement with the Commission pursuant to Rule 424(b)(3) of the
1933 Act Regulations; provided further, that the Depositor shall not
be required to file any Free Writing Prospectus that does not
contain substantive changes from or additions to a Free Writing
Prospectus previously filed with the Commission.
(g) Each Underwriter further agrees that (i) if the
Prospectus is not delivered with the confirmation in reliance on
Rule 172, it will include in every confirmation sent out the notice
required by Rule 173 informing the investor that the sale was made
pursuant to the Registration Statement and that the investor may
request a copy of the Prospectus from such Underwriter; (ii) if a
paper copy of the Prospectus is requested by a person who receives a
confirmation, such Underwriter shall deliver a paper copy of such
Prospectus; (iii) if an electronic copy of the Prospectus is
delivered by an Underwriter for any purpose, such copy shall be the
same electronic file containing the Prospectus in the identical form
transmitted electronically to such Underwriter by or on behalf of
the Depositor specifically for use by such Underwriter pursuant to
this Section 4(g); for example, if the Prospectus is delivered to an
Underwriter by or on behalf of the Depositor in a single electronic
file in .pdf format, then such Underwriter will deliver the
electronic copy of the Prospectus in the same single electronic file
in .pdf format. Each Underwriter further agrees that (i) if it
delivers to an investor the Prospectus in .pdf format, upon such
Underwriter's receipt of a request from the investor within the
period for which delivery of the Prospectus is required, such
Underwriter will promptly deliver or cause to be delivered to the
investor, without charge, a paper copy of the Prospectus and (ii) it
will provide to the Depositor any Free Writing Prospectuses, or
portions thereof, which the Depositor is required to file with the
Commission in electronic format and will use reasonable efforts to
provide to the Depositor such Free Writing Prospectuses, or portions
thereof, in either Microsoft Word(R) or Microsoft Excel(R) format
and not in a pdf, except to the extent that the Depositor, in its
sole discretion, waives such requirements.
5. Agreements. The Depositor agrees with the Underwriter that:
(a) The Depositor will cause the Prospectus as supplemented by a
Prospectus Supplement relating to the Certificates to be filed pursuant to
Rule 424 under the Act and will promptly advise the Underwriter when the
Prospectus as so supplemented has been so filed, and prior to the
termination of the offering of Certificates to which such Prospectus
relates also will promptly advise the Underwriter (i) when any amendment
to the Registration Statement specifically relating to the Certificates
shall have become effective or any further supplement to the Prospectus
has been filed, (ii) of any request by the Commission for any amendment of
the Registration Statement or the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of
the receipt by the Depositor of any written notification with respect to
the suspension of the qualification of the Certificates for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. During such time that the Prospectus is required by the Act to be
delivered in connection with sale of the Certificates, the Depositor will
not file any amendment of the Registration Statement or supplement to the
Prospectus (other than any amendment or supplement specifically relating
to a series of pass-through certificates other than the Certificates)
unless the Depositor has furnished the Underwriter with a copy for its
review prior to filing. The Depositor 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.
(b) The Depositor shall file any Free Writing Prospectus prepared
by the Depositor (including the Definitive Free Writing Prospectus), and
any Issuer Information contained in any Free Writing Prospectus provided
to it by each Underwriter under Section 4(d)(5), not later than the date
of first use of the Free Writing Prospectus, except that:
(1) As to any Free Writing Prospectus or portion
thereof that contains only (A) a description of the final
terms of the Certificates after such terms have been
established for all classes of Certificates being publicly
offered, may be filed by the Depositor within two days of the
later of the date such final terms have been established for
all classes of Certificates being publicly offered and the
date of first use and (B) a description of the terms of the
Certificates that does not reflect the final terms after they
have been established for all classes of all Certificates is
not required to be filed; and
(2) Notwithstanding clause (1) above, as to any Free
Writing Prospectus or portion thereof required to be filed
that contains only information of a type included within the
definition of ABS Informational and Computational Materials,
the Depositor shall file such Free Writing Prospectus or
portion thereof within the later of two business days after
the Underwriter first provides this information to investors
and the date upon which the Depositor is required to file the
Prospectus Supplement with the Commission pursuant to Rule
424(b)(3) of the Act.
provided further, that prior to such use of any Free Writing Prospectuses
by the Depositor, the Underwriter must comply with its obligations
pursuant to Section 4(d) and that the Depositor shall not be required to
file any Free Writing Prospectus that does not contain substantive changes
from or additions to a Free Writing Prospectus previously filed with the
Commission.
(c) If, at any time when a prospectus relating to the Certificates
is required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it shall be necessary at
any time to amend or supplement the Prospectus to comply with the Act or
the rules thereunder, the Depositor promptly will prepare and file with
the Commission, subject to paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance.
(d) If the Depositor or any Underwriter determines or becomes
aware that any Written Communication (including without limitation any
Free Writing Prospectus) or oral statement 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 with any
investor, when considered in conjunction with all information conveyed at
the time of Contract of Sale, either the Depositor or that Underwriter may
prepare corrective information with notice to the other party and any
other Underwriters, and the Underwriter dealing with that investor shall
deliver such information in a manner reasonably acceptable to that
Underwriter and the Depositor, to any person with whom a Contract of Sale
was entered into, and such information shall provide any such person with
the following:
(1) Adequate disclosure of the contractual
arrangement;
(2) Adequate disclosure of the person's rights under
the existing Contract of Sale at the time termination is
sought;
(3) 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 of
Sale; and
(4) 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.
To the extent that the Underwriter incurs any costs to the investor in
connection with any such termination or reformation of a Contract of Sale,
the Depositor shall reimburse the Underwriter for such costs to the extent
that the defective information was of a type that the Depositor is
responsible for under Section 7(a).
(e) The Depositor will furnish to the Underwriter and counsel for
the Underwriter, without charge, as many signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a
prospectus by the Underwriter or dealers may be required by the Act, as
many copies of the Prospectus and any supplements thereto as the
Underwriter may reasonably request; provided, however, that you will
provide the notice specified in Section 4(g) in every confirmation and
will only deliver the Prospectus to those investors that request a paper
copy thereof.
(f) The Depositor will furnish such information, execute such
instruments and take such actions as may be reasonably requested by the
Underwriter to qualify the Certificates for sale under the laws of such
jurisdictions as the Underwriter may designate, to maintain such
qualifications in effect so long as required for the distribution of the
Certificates and to determine the legality of the Certificates for
purchase by institutional investors; provided, that the Depositor shall
not be required to qualify to do business in any jurisdiction where it is
not now qualified or to take any action which would subject it to general
or unlimited service of process in any jurisdiction in which it is not now
subject to such service of process. The Depositor will make generally
available to holders of the Certificates, as soon as practicable (but no
later than 90 days after the close of the period covered thereby),
earnings statements (in form complying with the provisions of Rule 158
under the Act) covering twelve month periods beginning, in each case, not
later than the Depositor's fiscal quarter next following the "effective
date" (as defined in Rule 158) of the Registration Statement.
(g) Whether or not the transactions contemplated hereby shall be
consummated, the Depositor shall be responsible for the payment of any
costs and expenses in connection with the performance of its obligations
under this Agreement, including, without limitation, those related to (i)
the costs and expenses of printing or otherwise reproducing the
Registration Statement and the Prospectus, this Agreement, the Pooling
Agreement and the Certificates, (ii) the cost of delivering the
Certificates to the offices of the Underwriter, insured to the
satisfaction of the Underwriter, and (iii) the qualification of the
Certificates under securities and Blue Sky laws, including filing fees,
and the fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation of any Blue
Sky Survey.
6. Conditions to the Obligations of the Underwriter. The obligations of
the Underwriter to purchase the Certificates shall be subject to the accuracy in
all respects of the representations and warranties on the part of the Depositor
contained herein as of the date hereof and the Closing Date, to the accuracy of
the statements of the Depositor made in any Officers' certificates pursuant to
the provisions hereof, to the performance by the Depositor of its obligations
hereunder and to the following additional conditions:
(a) [___________] shall have furnished to the Underwriter
opinions, dated the Closing Date, substantially to the effect set forth in
Exhibit A.
(b) The Depositor shall have furnished to the Underwriter a
certificate of the Depositor, signed by the President, Senior Vice
President or any Vice President, dated the Closing Date, to the effect
that the signer of such certificate has carefully examined the
Registration Statement and the Prospectus and that:
(i) The representations and warranties of the Depositor in
this Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the
Closing Date, and the Depositor has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to his knowledge, threatened; and
(iii) Nothing has come to his attention that would lead him
to believe that the Registration Statement, as of the Closing Date,
contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus, as of
the Closing Date, contains any untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) [___________] will have furnished to the Underwriter a letter,
dated as of the Closing Date, in form and substance satisfactory to the
Underwriter, to the effect that they have performed certain specified
procedures as a result of which they have determined that such information
as the Underwriter may reasonably request of an accounting, financial or
statistical nature set forth in the Prospectus Supplement under the
caption "The Initial Mortgage Loans" and elsewhere therein agrees with the
accounting records of the Depositor and, where applicable, the Mortgage
Loan files of the Depositor, excluding any questions of legal
interpretation.
(d) The Depositor's Home Equity Mortgage Pass-Through Certificates
Series [___________], [list classes] Certificates shall have been rated
"AAA" by [Standard & Poor's, a division of the XxXxxx-Xxxx Companies, Inc.
("S&P"), "AAA" Fitch Ratings, Inc. ("Fitch") and "Aaa" by Xxxxx'x
Investors Service, Inc. ("Moody's")]. [The Class M-1 Certificates shall
have been rated "AA+" by S&P, "AA+" by Fitch and "Aa1" by Moody's. The
Class M-2 Certificates shall have been rated "AA" by S&P, "AA" by Fitch
and "Aa2" by Moody's. The Class M-3 Certificates shall have been rated
"AA-" by S&P, "AA-" by Fitch and "Aa3" by Moody's. The Class M-4
Certificates shall have been rated "A+" by S&P, "A+" by Fitch and "A1" by
Moody's. The Class M-5 Certificates shall have been rated "A" by S&P, "A"
by Fitch and "A2" by Moody's. The Class M-6 Certificates shall have been
rated "A-" by S&P, "A-" by Fitch and "A3" by Moody's. The Class M-7
Certificates shall have been rated "BBB+" by S&P, "BBB+" by Fitch and
"Baa1" by Moody's. The Class M-8 Certificates shall have been rated "BBB"
by S&P, "BBB" by Fitch and "Baa" by Moody's. The Class M-9F Certificates
and the Class M-9A Certificates shall have been rated "BBB-" by S&P,
"BBB-" by Fitch and "Baa3" by Moody's. The Class A-R Certificates and
Class A-RL Certificates shall have been rated "AAA" by S&P.]
(e) The Underwriter shall have received the opinion of the Counsel
to the Trustee, substantially to the effect set forth in Exhibit B.
(f) The Underwriter shall have received the opinion of the
Counsel, dated as of the Closing Date, to the Servicers in form and
substance satisfactory to the Underwriter.
(g) Subsequent to the date hereof, there shall not have been any
change, or any development involving a prospective change, in or affecting
the business or properties of the Depositor, which the Underwriter
concludes in its judgment materially impairs the investment quality of the
Certificates so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Certificates as contemplated by
the Prospectus.
(h) The Depositor shall have furnished to the Underwriter any
other opinion of counsel delivered to the Rating Agencies in connection
with the rating of the Certificates.
(i) The Underwriter shall have received indemnification letters
from each of the Servicers for the information provided by each respective
servicer for inclusion in the Prospectus Supplement.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriter and its counsel, this Agreement and all
obligations of the Underwriter hereunder may be canceled at, or at any time
prior to, the Closing Date by the Underwriter. Notice of such cancellation shall
be given to the Depositor in writing, or by telephone or telegraph confirmed in
writing.
7. Indemnification and Contribution. (a) The Depositor will indemnify and
hold harmless the Underwriter and each person, if any, who controls the
Underwriter within the meaning of the Act, against any losses, claims, damages
or liabilities, joint or several, to which the Underwriter or such controlling
person may become subject, under the Act or otherwise, and will reimburse the
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by the Underwriter and each such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, the Prospectus or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Definitive Free Writing Prospectus, or any Issuer Information contained in any
other Free Writing Prospectus, or any omission or alleged omission to state
therein a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iii) are
caused by any untrue statement of a material fact or alleged untrue statement of
a material fact contained in any Free Writing Prospectus that was caused by any
error in any Pool Information; provided, however, that the Depositor will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement in or omission or alleged omission made in any such documents
based upon any information with respect to which the Underwriter has agreed to
indemnify the Depositor pursuant to Section 7(b). This indemnity agreement will
be in addition to any liability which the Depositor may otherwise have.
(b) The Underwriter will indemnify and hold harmless the
Depositor, each of its directors, each of its officers who have signed the
Registration Statement and each person, if any, who controls the Depositor
within the meaning of the Act against any losses, claims, damages or
liabilities to which the Depositor or any such director, officer or
controlling person may become subject, under the Act or otherwise, and
will reimburse any legal or other expenses reasonably incurred by the
Depositor or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
(i) the Underwriter Information and the Decrement/Yield Tables, (ii) any
Underwriter Derived Information prepared or used by that Underwriter,
(iii) any Free Writing Prospectus prepared or used by that Underwriter for
which the conditions set forth in Section 4(d)(5) above are not satisfied
with respect to the prior approval by the Depositor, (iv) any portion of
any Free Writing Prospectus (other than the Definitive Free Writing
Prospectus) prepared or used by that Underwriter not constituting Issuer
Information, (v) and any liability directly resulting from that
Underwriter's failure to provide any investor with the Definitive Free
Writing Prospectus prior to entering into a Contract of Sale with such
investor or failure to file any Free Writing Prospectus required to be
filed by that Underwriter in accordance with Section 4(f); provided,
however, that the indemnification set forth in this 7(b) shall not apply
to the extent of any error in any Free Writing Prospectus that was caused
by any error in any Pool Information. This indemnity will be in addition
to any liability which each Underwriter may otherwise have. The Depositor
acknowledges that, unless otherwise set forth in the applicable Terms
Agreement, the Underwriters' Information and the Decrement/Yield Tables
included in the Prospectus Supplement relating to a Series of Certificates
constitute the only information furnished in writing by or on behalf of
any Underwriter expressly for use in the Applicable Registration Statement
or the Prospectus or in any amendment thereof or supplement thereto, as
the case may be furnished to the Depositor by such Underwriter), and each
Underwriter confirms, on its behalf, that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party of
the commencement thereof, but the omission so to notify the indemnifying
party will not relieve it from any liability which it may have to any
indemnified party otherwise than in this Section. In case any such action
is brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein, and to the extent that it may, jointly with any
other indemnifying party similarly notified, elect to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with defense thereof other than reasonable
costs of investigation.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this
Section 7 is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, the Depositor,
on the one hand, and the Underwriter, on the other, shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by said indemnity agreement incurred by the Depositor
and the Underwriter in such proportions that the Underwriter is
responsible for that portion represented by the percentage that the
underwriting discount or discounts earned on the Certificates bears to the
total net proceeds of the offering and the Depositor shall be responsible
for the balance; provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation; and, further, provided however, in no case
shall the Underwriter be responsible for any amount in excess of the
related aggregate underwriting discounts. For purposes of this Section,
each person, if any, who controls the Underwriter within the meaning of
Section 15 of the Act shall have the same rights to contribution as the
Underwriter and each director of the Depositor, each officer of the
Depositor who signed the Registration Statement, and each person, if any,
who controls the Depositor within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Depositor.
8. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriter, by notice given to the Depositor prior
to delivery of and payment for the Certificates, if prior to such time (i) there
has been, since the date hereof, any material adverse change in the condition,
financial or otherwise, of the Depositor, whether or not arising in the ordinary
course of business, or (ii) there shall have occurred any material adverse
change in the financial markets in the United States or any outbreak or
escalation of hostilities or other national or international calamity or crisis
the effect of which on the financial markets of the United States is such as to
make it, in the judgment of the Underwriter, impracticable to market the
Certificates or enforce contracts for the sale of the Certificates, or (iii)
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or banking moratorium has been declared by either Federal or New York
authorities.
9. Representations and Indemnities To Survive Delivery. The agreements,
representations, warranties, indemnities and other statements of the Depositor
or its officers and of the Underwriter set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of the Underwriter or the Depositor or any of the officers,
directors or controlling persons referred to in Section 7 hereof, and will
survive delivery of and payment for the Certificates. The provisions of Section
7 hereof shall survive the termination or cancellation of this Agreement.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers,
directors and controlling persons referred to in Section 7 hereof, and their
successors and assigns, and no other person will have any right or obligation
hereunder.
11. Applicable Law. THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. Miscellaneous. This Agreement may be executed in counterparts, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument. This Agreement supersedes
all prior and contemporaneous agreements and understandings relating to the
subject matter hereof. This Agreement or any term hereof may not be changed,
waived, discharged or terminated except by an affirmative written agreement made
by the party against whom enforcement of the change, waiver, discharge or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the undersigned a counterpart hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Depositor and the Underwriter.
[Signature Page Follows]
Very truly yours,
CREDIT SUISSE FIRST BOSTON MORTGAGE
ACCEPTANCE CORP.
By: _____________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted
as of the date first above written.
CREDIT SUISSE SECURITIES (USA) LLC
By: ___________________________
Name:
Title:
UNDERWRITING AGREEMENT DATED [_____________]
DESIGNATION, PURCHASE PRICE AND DESCRIPTION OF THE CERTIFICATES:
Home Equity Mortgage Pass-Through Certificates Series [______]
Aggregate Collateral Balance: $[_________]
The Purchase Price for the Certificates shall be: $[ * ]
-----------------------------------------------------
Class Class Principal Balance
-----------------------------------------------------
A-1 $
A-2A $
A-2B $
A-3 $
A-4 $
M-1 $
M-2 $
M-3 $
M-4 $
M-5 $
M-6 $
M-7 $
M-8 $
M-9F $
M-9A $
A-R $100
A-RL $100
*Contact Credit Suisse for Purchase Price
EXHIBIT A
Closing Opinion and Tax Opinion of [_______________]
EXHIBIT B
Corporate Opinion of Counsel to the Trustee
EXHIBIT C
FOOTNOTE 271 INFORMATION
[Excerpt from Offering Reform adopting release-bold headings added for
convenience of reference]
In the case of asset-backed issuers certain information comprehended within the
definition of ABS informational and computational material is analogous to the
term of securities and is therefore issuer information. For example, we would
expect that the following categories of such material, which are derived from
the definition of ABS informational and computational materials, are generally
issuer information:
(1) STRUCTURAL INFORMATION-factual information regarding the
asset-backed securities being offered and the structure and basic parameters of
the securities, such as the number of classes, seniority, payment priorities,
terms of payment, the tax, ERISA or other legal conclusions of counsel, and
descriptive information relating to each class (e.g., principal amount, coupon,
minimum denomination, price or anticipated price, yield, weighted average life,
credit enhancements, anticipated ratings, and other similar information relating
to the proposed structure of the offering);
(2) COLLATERAL INFORMATION-factual information regarding the pool assets
underlying the asset-backed securities, including origination, acquisition and
pool selection criteria, information regarding any prefunding or revolving
period applicable to the offering, information regarding significant obligors,
data regarding the contractual and related characteristics of the underlying
pool assets (e.g., weighted average coupon, weighted average maturity,
delinquency and loss information and geographic distribution) and other factual
information concerning the parameters of the asset pool appropriate to the
nature of the underlying assets, such as the type of assets comprising the pool
and the programs under which the loans were originated;
(3) KEY PARTIES INFORMATION-identification of key parties to the
transaction, such as servicers, trustees, depositors, sponsors, originators and
providers of credit enhancement or other support, including information about
any such party;
(4) STATIC POOL DATA-static pool data, as referenced in Item 1105 of
Regulation AB [17 CFR 229.1105], such as for the sponsor's and/or servicer's
portfolio, prior transactions or the asset pool itself; and
(5) ISSUER COMPUTATIONAL MATERIAL-to the extent that the information is
provided by the issuer, depositor, affiliated depositor, or sponsor, statistical
information displaying for a particular class of asset-backed securities the
yield, average life, expected maturity, interest rate sensitivity, cash flow
characteristics, total rate of return, option adjusted spread or other financial
or statistical information related to the class or classes under specified
prepayment, interest rate, loss or other hypothetical scenarios. (Where such
information is prepared by an underwriter or dealer, it is not issuer
information, even when derived from issuer information.)
