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EXHIBIT 1.1
CITICORP MORTGAGE SECURITIES, INC.
Citicorp Mortgage Securities Trust, Series 2008-1
REMIC Pass-Through Certificates
Senior Underwriting Agreement
January
10, 2008
To: Citigroup
Global Markets Inc., as Senior Underwriter
388
Greenwich Street
New
York, New York 10013
Ladies
and Gentlemen:
Citicorp
Mortgage Securities, Inc., a Delaware corporation
(“CMSI”), proposes to sell to you, as senior
underwriter (the “Senior Underwriter”), the
offered class A REMIC Pass-Through Certificates (the
“offered senior certificates”) described in
Schedule I. The offered senior certificates evidence ownership
interests in a trust (the “Trust”) consisting of
the mortgage loans described in Schedule I (the
“mortgage loans”) and related property. The
mortgage loans were originated or acquired by the affiliates
of CMSI identified in Schedule I (the
“originators”), and will have, at the close of
business on the “cut-off date” specified in
Schedule I, the aggregate principal balance set forth in
Schedule I. CMSI will elect to treat the Trust, or one or more
segregated pools of assets within the Trust, as one or more
real estate mortgage investment conduits (each a
“REMIC”) for purposes of federal income taxation.
The offered senior certificates are to be issued under a
pooling and servicing agreement (the “Pooling
Agreement”), dated as of the cut-off date, between CMSI,
as Depositor, CitiMortgage, Inc. (“CMI”), as
Servicer and Master Servicer, U.S. Bank National Association,
in its individual capacity and as Trustee (in such capacity,
the “Trustee”), and Citibank, N.A., in its
individual capacity and as Paying Agent, Certificate Registrar
and Authentication Agent.
CMSI,
Citigroup Inc., and the Senior Underwriter agree as
follows:
1. Purchase
and Sale
Subject
to the terms and conditions of, and in reliance upon the
representations and warranties made in, this Agreement, CMSI
agrees to sell to the Senior Underwriter, and the Senior
Underwriter agrees to purchase from CMSI, all of the offered
senior certificates at the purchase price set forth in
Schedule I.
2. Delivery
and Payment
CMSI
will deliver one or more certificates representing each class
of offered senior certificates to the Senior
Underwriter’s account at the office, on the date and at
the
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time
(the “closing date”) specified in Schedule I
against payment by the Senior Underwriter of the purchase
price to or upon the order of CMSI in the manner provided in
Schedule I. Unless otherwise specified in Schedule I, the
offered senior certificates will be registered in the name of
Cede & Co., as nominee for The Depository Trust Company
(“DTC”), and the interests of beneficial owners of
such offered senior certificates will be represented by book
entries on the records of DTC and its participants. Definitive
Certificates representing the offered senior certificates will
be available as set forth in Schedule I.
CMSI
will have the offered senior certificates available for
inspection by the Senior Underwriter in New York, New York,
one business day prior to the closing date.
3. Registration
Statement and Prospectus
(a) CMSI
represents and warrants to the Senior Underwriter that CMSI
has filed a registration statement (File No. 333-145532),
including a prospectus, with the Securities and Exchange
Commission (the “Commission”) on Form S-3 that is
effective under the Securities Act of 1933, as amended (the
“Securities Act”) and no stop order suspending the
effectiveness of the registration statement has been issued
and no proceedings for that purpose have been initiated by the
Commission. CMSI further represents and warrants to the Senior
Underwriter that CMSI is not an “ineligible
issuer” as defined in Rule 405 under the Securities Act,
at the date specified in paragraph 3.ii of such
definition.
Such
registration statement, as revised, amended or supplemented,
including by the filing of the Prospectus (as defined below),
will at the relevant date be the “Registration
Statement” at that date. As used in this Agreement, the
Registration Statement will include, at the date of their
filing, any documents filed under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) that are
incorporated by reference into the prospectus included in the
Registration Statement pursuant to Item 12 of Form S-3 under
the Securities Act, and the terms “amend,”
“amendment” or “supplement” with
respect to the Registration Statement or the Prospectus will
refer to and include the filing of any document under the
Exchange Act so incorporated by reference.
(b) The
Senior Underwriter will advise CMSI of the final structure of
the offered senior certificates sufficiently in advance of the
closing date so that CMSI can prepare a final prospectus
relating to the offered senior certificates (the
“Prospectus”) for delivery to the Senior
Underwriter no later than the closing date. CMSI will use its
best efforts to deliver the Prospectus to the Senior
Underwriter as soon as reasonably practicable following the
Senior Underwriter’s advice of the final structure of
the offered senior certificates. CMSI will file the Prospectus
with the Commission pursuant to and in conformity with Rule
424 under the Securities Act. References to the Prospectus at
any time will refer to the Prospectus as amended or
supplemented at such time. CMSI will, prior to the termination
of the offering of the offered senior certificates (the
“offering”), promptly advise the Senior
Underwriter
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(i)
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when
any amendment to the Registration Statement relating to the offered
senior certificates has become effective or any revision of or
supplement to the Prospectus has been filed,
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(ii)
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of
any request by the Commission for an amendment of the Registration
Statement or the Prospectus or for any additional
information,
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(iii)
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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
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(iv)
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of
the receipt by CMSI of any notification with respect to the
suspension of the qualification of the offered senior certificates
for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
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CMSI
will use its best efforts to prevent the issuance of any such
stop order and, if issued, to obtain its withdrawal as soon as
possible. CMSI will not file prior to the termination of the
offering any amendment to the Registration Statement relating
to the offered senior certificates, or any revision of or
supplement to the Prospectus, unless a copy has been furnished
to the Senior Underwriter for its review prior to
filing.
(c) CMSI
represents and warrants to the Senior Underwriter that the
Registration Statement on each of the date of this Agreement,
the closing date, and each time of sale (as defined below),
and the Prospectus as of its date, the closing date, and each
time of sale following the date of the Prospectus
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(i)
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will
conform in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission,
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(ii)
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the
Registration Statement will not include 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
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(iii)
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the
Prospectus will not include an untrue statement of a material fact
or 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, except that CMSI makes
no representation or warranty concerning the statements in Schedule
I under the heading “Senior Underwriter’s Statements to
be Included in the Prospectus” furnished to CMSI by or on
behalf of the Senior Underwriter specifically for use in connection
with the preparation of the Prospectus (the “Senior
Underwriter supplied Prospectus information”).
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For
purposes of clause (ii) of this section 3(c), the Prospectus
will include static pool information on a website for which a
URL address or hyperlink was provided in the Prospectus but
which information is, pursuant to Item 1105(d) of Regulation
AB, not deemed to be part of the Prospectus or the
Registration Statement.
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In
this agreement, “time of sale” means the time of
sale (as such term is used in Rule 159 under the Securities
Act) of offered senior certificates by the Senior Underwriter
to an investor.
(d) The
Senior Underwriter represents and warrants to CMSI that the
Senior Underwriter supplied Prospectus information does not
include 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 are made,
not misleading when considered in conjunction with the rest of
the Prospectus. CMSI acknowledges that the Senior Underwriter
supplied Prospectus information comprises the only written
information furnished by or on behalf of the Senior
Underwriter for inclusion in the Prospectus.
(e) If,
at any time when the Prospectus is required to be delivered
under the Securities Act,
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(i)
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an
event occurs as a result of which the Prospectus at such time would
include 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,
or
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(ii)
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the
Prospectus must be revised, amended or supplemented to comply with
the Securities Act or the rules and regulations of the Commission
thereunder,
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CMSI
will promptly prepare and file with the Commission a revision,
amendment or supplement that corrects such statement or
omission or effects such compliance. CMSI will consult with
the Senior Underwriter, to the extent reasonably practicable,
on the preparation of such revision, amendment or
supplement.
(f) CMSI
will furnish to the Senior Underwriter and its counsel,
without charge, so long as delivery of the Prospectus is
required under the Securities Act, as many copies of the
Prospectus and any revisions or amendments thereof or
supplements thereto as reasonably requested.
(g) If
the third anniversary of the effective date of the
Registration Statement occurs within three months after the
closing date, CMSI will take action as necessary to permit the
public offering and sale of the offered senior certificates as
contemplated by this Agreement.
4. Free
writing prospectuses and loan tape
(a) CMSI
will deliver electronically to the Senior Underwriter in
Portable Document Format, not later than two business days
following the date on which CMSI notifies the Senior
Underwriter that CMSI has chosen it to underwrite the
offering, and will promptly file with the Commission, a
“free writing prospectus” (as defined in Rule 405
under the Securities Act) containing general information about
the offering, the structure of the transaction (exclusive of a
description of the properties of any particular
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class
of offered senior certificates), the expected parameters of
the mortgage loan pools, risk factors applicable to the
mortgage loans, transaction parties known to CMSI, the
material tax and ERISA treatment of the Certificates, whether
the Certificates will be “mortgage related
securities” as defined in the Exchange Act, and URL
addresses of or hyperlinks to the core prospectus most
recently filed by CMSI with the Commission and to the portion
of CMSI’s static pool website containing static pool
information with respect to REMIC pass-through certificates of
the same asset type (as determined by CMSI) as the mortgage
loans (including all such static pool information, whether or
not included in the Prospectus or Registration Statement
pursuant to Item 1105(d) or Regulation AB, the “CMSI
free writing prospectus”). CMSI will promptly deliver to
the Senior Underwriter electronically in Portable Document
Format updated CMSI free writing prospectuses to correct any
material misstatements, or omissions to state a material fact
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, in
previous CMSI free writing prospectuses. References to the
CMSI free writing prospectus at any time will refer to the
CMSI free writing prospectus most recently delivered to the
Senior Underwriter (including by correction of static pool
information on a website referred to in the CMSI free writing
prospectus) sufficiently prior to such time as to reasonably
permit the Senior Underwriter to deliver the CMSI free writing
prospectus to the relevant investor.
(b) CMSI
represents and warrants to the Senior Underwriter
that:
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(i)
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The
CMSI free writing prospectus will conform in all material respects
to the requirements of the Securities Act and the applicable rules
and regulations of the Commission
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(ii)
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At
the time of sale, the CMSI free writing prospectus, and any loan
tape furnished by CMSI to the Senior Underwriter (as supplemented
or corrected by CMSI sufficiently prior to such time as to
reasonably permit the Senior Underwriter to correct any statement
made to the investor in reliance on the unsupplemented or
uncorrected loan tape), will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading , except that CMSI makes
no representation or warranty to the extent that such untrue
statement or omission was the result of an untrue statement or
omission in, or a failure to provide structural
information.
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In
this agreement, “structural information” means any
of the following types of information supplied by the Senior
Underwriter to the investor, to the extent not included in the
CMSI free writing prospectus:
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·
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The
interest rate or any interest rate formula, the anticipated price
range, the yield to maturity and/or call, the weighted average life
at the pricing speed and under other scenarios that illustrate the
material effects of prepayments or changes in interest rates on
offered senior
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certificates
(with a description of related prepayment, collateral and
other assumptions), and other pricing
information.
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·
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Principal
and loss allocations to various classes.
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·
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Interest
accrual periods for offered senior certificates.
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·
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Whether
offered senior certificates represent interests in the entire
mortgage pool or in one or more mortgage loan groups.
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·
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A
description of third party credit enhancement or derivative
instruments selected by the Senior Underwriter for the offered
senior certificates, together with the identity of and material
information about any related provider or counterparty and the
ratings assigned to the provider or counterparty.
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·
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The
identity of and material information about any special servicer or
credit risk manager selected by the Senior Underwriter for the
offered senior certificates.
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·
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The
fees and expenses payable to transaction parties.
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(c) CMSI
will provide the Senior Underwriter with one or more loan
tapes containing “loan level” listings of the
mortgage loans that may contain “nonpublic personal
information” within the meaning of Regulation S-P of the
Commission. The Senior Underwriter acknowledges that, to the
extent the listing of the mortgage loans contains any
nonpublic personal information, the Senior Underwriter will be
bound by the provisions of Rule 11 of Regulation S-P and other
applicable law regarding limits on redisclosure and reuse of
such information.
(d) The
Senior Underwriter represents and warrants to CMSI that any
written communication containing material information about
CMSI or its affiliates or the offered senior certificates
furnished to a prospective investor by the Senior Underwriter,
other than a CMSI free writing prospectus, the Prospectus, the
Registration Statement or the loan tape most recently
furnished by CMSI to the Senior Underwriter (as supplemented
or corrected by CMSI prior to such time)
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(i)
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conformed
to the terms and conditions for a communication in Rule 134 or a
free writing prospectus in Rule 433 under the Securities
Act,
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(ii)
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if
a free writing prospectus, consisted solely of ABS informational
and computational material (as defined in Item 1101(a) of
Regulation AB under the Securities Act) and information regarding
status, oversubscription, allocation and confirmation of sale,
and
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(iii)
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if
a free writing prospectus, did not at the time of sale include any
untrue statement of a material fact or omit any material fact
necessary to make the statements contained therein, when considered
in conjunction with the CMSI free writing prospectus delivered to
the investor, in light of the circumstances under which they were
made, not misleading,
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except that the Senior Underwriter makes no representation
or warranty to the extent that (A) the misstatement or
omission was the result of a misstatement or omission in
information supplied by CMSI to the Senior Underwriter that was not
corrected by information subsequently supplied by CMSI to the
Senior Underwriter sufficiently prior to the time of sale as to
reasonably permit the Senior Underwriter to correct any statement
made to the investor based on such misstatement, or (B) the
free writing prospectus substantially restates a statement (which
statement may include structural information) in the Prospectus or
CMSI free writing prospectus (a “restatement”), and
does not omit a statement in the Prospectus or CMSI free writing
prospectus necessary to make the restatement, when considered in
conjunction with the free writing prospectus and other information
delivered to the prospective investor, in light of the
circumstances under which the restatement was made, not
misleading.
(e) CMSI
will file a CMSI free writing prospectus containing (i) a
description of the final structure of the offered senior
certificates and (ii) the information contained in the
final loan tape delivered to the Senior Underwriter, all in
conformity with Rule 433 under the Securities
Act.
(f) The
Senior Underwriter will not sell, and will obligate each
dealer to whom it sells any offered senior certificates (which
obligation may be in the form of a trade stipulation and which
must name CMSI as an intended third party beneficiary) not to
sell any offered senior certificates
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(i)
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to
any investor who is not an institutional investor unless the sale
is accompanied or preceded by delivery of the Prospectus,
and
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(ii)
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to
any investor prior to the time the Prospectus is filed with the SEC
unless at the time of sale the Senior Underwriter delivers to the
investor the CMSI free writing prospectus and the supplemental
information that is then known or available to the Senior
Underwriter.
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(g) The
Senior Underwriter will file with the Commission not later
than the date of its first use any free writing prospectus
that is distributed by or on behalf of the Senior Underwriter
in a manner reasonably designed to lead to its broad,
unrestricted dissemination. CMSI will provide the Senior
Underwriter with any filing information needed to complete
such filing.
(h) The
Senior Underwriter will, in conformity with Rule 433(g) under
the Securities Act, retain all free writing prospectuses that
it has used in the offering and that are not filed with the
Commission for three years following the initial bona fide
offering of the offered senior certificates. If there is any
litigation or threatened litigation against CMSI or any of its
affiliates with respect to the offering, the Senior
Underwriter will, on CMSI’s request, make copies of such
documents available to CMSI.
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(i) The
Senior Underwriter will promptly provide CMSI with any
information within the Senior Underwriter’s reasonable
control that CMSI reasonably requests to enable CMSI to meet
its disclosure and reporting obligations under the Securities
Act and the Exchange Act in connection with the offered senior
certificates. The Senior Underwriter will use its best efforts
to cause any credit enhancement provider, derivative
counterparty, special servicer or credit risk manager arranged
by the Senior Underwriter in connection with the offered
senior certificates to promptly provide to CMSI such narrative
disclosure, financial information, including required
accountants’ consents, and other information as CMSI may
reasonably request to enable CMSI to meet its disclosure and
reporting obligations under the Securities Act and the
Exchange Act.
5.
Other
representations and warranties
CMSI
represents and warrants to the Senior Underwriter
that:
(a) Each
of the offered senior certificates will, when issued, be a
“mortgage related security,” as defined in section
3(a)(41) of the Exchange Act, and each of the offered senior
certificates, when validly authenticated, issued and delivered
in accordance with the Pooling Agreement, will be duly and
validly issued and outstanding and entitled to the benefits of
the Pooling Agreement.
(b) Compliance
by CMSI with the provisions of this Agreement and the Pooling
Agreement do not, and will not on the closing date, conflict
with CMSI’s certificate of incorporation or by-laws or
any contract to which CMSI is a party.
(c) On
the closing date, each of this Agreement and the Pooling
Agreement will have been duly authorized, executed and
delivered by CMSI and, assuming the valid execution of such
agreements by the other parties, each such agreement will
constitute a valid and binding agreement of CMSI enforceable
against it in accordance with its terms, except as the same
may be limited by bankruptcy, insolvency, reorganization or
other laws relating to or affecting the enforcement of
creditors’ rights and by general equity
principles.
(d) CMSI
has been duly organized and is validly existing under the laws
of the State of Delaware, with corporate power and authority
to own its properties and conduct its business as described in
the Prospectus.
6. Expenses;
Blue Sky
(a) CMSI
will pay all expenses incidental to the performance of its
obligations under this Agreement, including expenses
of
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(i)
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preparing,
filing and reproducing the Prospectus, of preparing, filing and
reproducing the CMSI free writing prospectus, the Registration
Statement, this Agreement, and the Pooling Agreement,
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(ii)
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KPMG
LLP, and
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(iii)
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preparing
and delivering the offered senior certificates to DTC,
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provided, however , that except as provided in this section
(a) and in section 10, the Senior Underwriter will pay (A) all of
its own expenses, including the fees of Cadwalader, Wickersham
& Taft
LLP and any
other counsel to the Senior Underwriter, (B) any transfer taxes on
resale of any of the offered senior certificates by it, (C)
advertising expenses connected with any offers made by the Senior
Underwriter, and (D) expenses of printing the
Prospectus.
(b) CMSI
will use its best efforts to arrange for, and will pay all
expenses of, the qualification of the offered senior
certificates for sale under the laws of such jurisdictions as
the Senior Underwriter may designate, to maintain such
qualifications in effect so long as required for the
distribution of the offered senior certificates and to arrange
for the determination of the legality of the offered senior
certificates for purchase by institutional investors, However,
CMSI will not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any
action that would subject it to general or unlimited service
of process in any jurisdiction where it is not now so
subject.
(c) If
for any reason other than default by the Senior Underwriter in
its obligation to purchase the offered senior certificates or
termination by the Senior Underwriter pursuant to section 11,
CMSI does not deliver the offered senior certificates as
provided in this agreement, CMSI will reimburse the Senior
Underwriter for its out-of-pocket expenses (including
reasonable fees and disbursements of its counsel) reasonably
incurred by the Senior Underwriter in preparing to purchase
the offered senior certificates, but CMSI will have no further
liability to the Senior Underwriter with respect to the
offered senior certificates, except as provided in sections
6(a) and 6(b) above.
7. No
Fiduciary Relationship
(a) The
Senior Underwriter has been retained solely to
act
