CITIGROUP MORTGAGE LOAN TRUST
INC.
$794,331,000
(Approximate)
Citigroup HELOC Trust 2006-NCB1,
Series 2006-NCB1
HELOC-Backed Notes and
Certificates
UNDERWRITING
AGREEMENT
Citigroup
Global Markets Inc.
as
Representative of the Underwriters
named in
Schedule II hereto
390 Greenwich
Street, 4th Floor
Citigroup Mortgage Loan Trust Inc. (the
“Company”), a Delaware corporation, proposes to issue
Citigroup HELOC Trust 2006-NCB1, Series 2006-NCB1, HELOC-Backed
Notes and Certificates (the “Securities”), under an
Indenture (the “Indenture”), dated as of May 23, 2006,
among Citigroup HELOC Trust 2006-NCB1 as issuer (the
“Issuer”), Citibank, N.A. as securities administrator
and authenticating agent (the “Securities
Administrator” and “Authenticating Agent”) and
U.S. Bank National Association as indenture trustee (the
“Indenture Trustee”) and proposes to sell the
Registered Notes (as defined below) to the underwriters named in
Schedule II hereto (the “Underwriters”), for whom you
are acting as representative (the “Representative”). If
the firm or firms listed in Schedule II hereto include only
Citigroup Global Markets Inc., then the terms
“Underwriters” and “Representative,” as
used herein, shall each be deemed to refer to Citigroup Global
Markets Inc. The Securities are designated as (i) the Class 1A-1 Notes, the Class 2A-1 Notes, the
Class 2A-2 Notes and the Class 2A-3 Notes (the “Class A
Notes”), (ii) the Class M Notes and (iii) the Class C
Certificates, the Class N Certificates and the Class R
Certificates.
The Securities will represent in the aggregate
the entire beneficial ownership interest in a trust estate (the
“Trust Estate”) consisting primarily of a segregated
pool (the “Loan Pool”) of adjustable rate, first and
junior lien, revolving home equity line of credit loans (the
“Loans”). The Loans will be acquired by the Company
from Citigroup Global Markets Realty Corp. (the
“Seller”) in exchange for immediately available funds
representing the purchase price. The Securities are described more
fully in Schedule I hereto. The Class A Notes (other than the Class
1A-1 Notes) and the Class M Notes (together, the “Registered
Notes”) are more fully discussed in a registration statement
which the Company has furnished to you. This is to confirm the
arrangements with respect to your purchase of the Registered
Notes.
Capitalized terms used but not defined herein
shall have the meanings assigned thereto in the
Indenture.
1.
Representations and
Warranties : The Company
represents and warrants to, and agrees with, each Underwriter
that:
(a) The Company has filed with the Securities and
Exchange Commission (the “Commission”) a registration
statement on Form S-3 (the file number of which is set forth in
Schedule I hereto), for the registration of the Registered Notes
under the Securities Act of 1933, as amended (the “1933
Act”), which registration statement has become effective and
copies of which have heretofore been delivered to you. Such
registration statement, as amended as of the date hereof, meets the
requirements set forth in Rule 415(a)(1)(vii) under the 1933 Act
and complies in all other material respects with the 1933 Act and
the rules and regulations thereunder. The Company proposes to file
with the Commission pursuant to Rule 424 under the 1933 Act a
supplement to the form of prospectus included in such registration
statement relating to the Registered Notes and the plan of
distribution thereof, and has previously advised you of all further
information (financial and other) with respect to the Securities
and the Mortgage Pool to be set forth therein. Such registration
statement, including the exhibits thereto, as amended as of the
date hereof, is hereinafter called the “Registration
Statement”; the prospectus included in the Registration
Statement after the Registration Statement, as amended, became
effective, or as subsequently filed with the Commission pursuant to
Rule 424 under the 1933 Act, is hereinafter called the “Basic
Prospectus”; the form of prospectus supplemented by the
supplement to the form of prospectus relating to the Registered
Notes, is hereinafter called the “Prospectus
Supplement” in the form in which it shall be first filed with
the Commission pursuant to Rule 424 (including the Basic
Prospectus) is hereinafter called a “Final Prospectus.”
The Company will file with the Commission within fifteen days of
the issuance of the Registered Notes a report on Form 8-K setting
forth specific information concerning the Registered Notes and the
Mortgage Pool to the extent that such information is not set forth
in the Final Prospectus.
(b) As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 under the 1933 Act, when, prior
to the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective, when any supplement to
the Final Prospectus is filed with the Commission, and at the
Closing Date, (i) the Registration Statement, as amended as of any
such time, and the Final Prospectus, as amended or supplemented as
of any such time, comply and will comply in all material respects
with the applicable requirements of the 1933 Act and the rules and
regulations thereunder, (ii) the Registration Statement, as amended
as of any such time, does not and will not contain any untrue
statement of material fact and does not and will not omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (iii) the
Final Prospectus, as amended or supplemented as of any such time,
do not and will not contain any untrue statement of a material fact
and do not and will not 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 Company makes no representations or
warranties as to (i) the information contained in or omitted from
the Registration Statement or Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity
with the information furnished in writing to the Company by or on
behalf of any Underwriter through the Representative specifically
for use in connection with the preparation of the Registration
Statement and the Final Prospectus as set forth in Exhibit A hereto
(the “Underwriters’ Information”).
(c) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware with full power and authority (corporate
and other) to own its properties and conduct its business as now
conducted by it and to enter into and perform its obligations under
(i) this Agreement, (ii) the HELOC Purchase Agreement, dated as of
May 22, 2006 (the “HELOC Purchase Agreement”), among
the Company, National City Bank as originator (the
“Originator”) and Citigroup Global Markets Realty Corp.
as seller (the “Seller”), (iii) the Assignment and
Recognition Agreement, dated as of May 23, 2006 (the
“Assignment Agreement”) among the Seller as assignor,
the Company, the Issuer, National City Bank and the Indenture
Trustee as pledgee, (iv) the Amended and Restated Trust Agreement,
dated as of May 23, 2006 (the “Trust Agreement”), among
the Company, Wilmington Trust Company and Citibank, N.A. and (iv)
the Indenture; and the Company has received no notice of
proceedings relating to the revocation or modification of any
license, certificate, authority or permit applicable to its owning
such properties or conducting such business which singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the conduct of the
business, operations, financial condition or income of the
Company.
(d) As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 under the 1933 Act, when, prior
to the Closing Date (as hereinafter defined), any amendment to the
Registration Statement becomes effective, when any supplement to
the Final Prospectus is filed with the Commission, and at the
Closing Date, there has not and will not have been (i) any request
by the Commission for any further amendment of the Registration
Statement or the Final Prospectus or for any additional
information, (ii) any 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 or
(iii) any notification with respect to the suspension of the
qualification of the Registered Notes for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose.
(e) This Agreement and the HELOC Purchase Agreement
have been, and the Assignment Agreement, the Trust Agreement and
the Indenture when executed and delivered as contemplated hereby
and thereby will have been, duly authorized, executed and delivered
by the Company and each constitutes, or will constitute when so
executed and delivered, a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of the rights of
creditors, (ii) general principles of equity, whether enforcement
is sought in a proceeding in equity or at law and (iii) public
policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of
the provisions of this Agreement that purport to provide
indemnification from securities law liabilities.
(f) The Securities and the Indenture will conform in
all material respects to the description thereof contained in the
Final Prospectus, and the Registered Notes, when duly and validly
authorized, executed, authenticated and delivered in accordance
with the Indenture and paid for by the Underwriters as provided
herein, will be entitled to the benefits of the Indenture. On the
Closing Date, the Indenture will be effective to establish the
Trust Fund as a valid trust under the laws of the State of New
York.
(g) As of the Cut-off Date, the Mortgage Loans will
meet the criteria for selection described in the Final
Prospectus.
(h) Neither the issuance and sale of the Securities,
nor the execution and delivery by the Company of this Agreement,
the HELOC Purchase Agreement or the Indenture, nor the consummation
by the Company of any of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions
hereof or thereof, will conflict with or result in a breach of any
term or provision of the certificate of incorporation or by-laws of
the Company or conflict with, result in a breach, violation or
acceleration of or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Company or
any of its affiliates is a party or by which it or any of them is
bound, or any statute, order or regulation applicable to the
Company or any of its affiliates of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Company or any of its affiliates. Neither the Company nor any
of its affiliates is a party to, bound by or in breach or violation
of any indenture or other agreement or instrument, or subject to or
in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects, or
may in the future materially and adversely affect, (i) validity or
enforceability of, or the ability of the Company to perform its
obligations under, this Agreement, the HELOC Purchase Agreement or
the Indenture or (ii) the business, operations, financial
conditions, properties or assets of the Company.
(i) Except as disclosed in the Final Prospectus,
there are no actions or proceedings against, or investigations of,
the Company pending, or, to the knowledge of the Company,
threatened, before any court, administrative agency or other
tribunal (i) asserting the invalidity of this Agreement, the HELOC
Purchase Agreement, the Indenture or the Securities, (ii) seeking
to prevent the issuance of the Securities or the consummation of
any of the transactions contemplated by this Agreement, the HELOC
Purchase Agreement or the Indenture, (iii) that might materially
and adversely affect the performance by the Company of its
obligations under, or the validity or enforceability of, this
Agreement, the HELOC Purchase Agreement, the Indenture or the
Securities, or (iv) seeking to affect adversely the federal income
tax attributes of the Securities as described in the Final
Prospectus.
(j) There has not been any material adverse change
in the business, operations, financial condition, properties or
assets of the Company since March 30, 2006.
(k) Any taxes, fees and other governmental charges
payable by the Company in connection with the execution, delivery
and issuance of this Agreement, the HELOC Purchase Agreement and
the Indenture or the execution, delivery and sale or transfer of
the Securities have been or will be paid at or prior to the Closing
Date.
(l) The Company is not, and the issuance and sale of
the Securities in the manner contemplated by the Final Prospectus
will not cause the Company to be, subject to registration or
regulation as an investment company or affiliate of an investment
company under the Investment Company Act of 1940, as amended (the
“Investment Company Act”).
(m) The transfer of the Mortgage Loans to the Trust
Fund at the Closing Date will be treated by the Company for
financial accounting and reporting purposes as a sale of assets and
not as a pledge of assets to secure debt.
(n) As of the Effective Date and as of the date of
the Contract of Sale, the Company is not an “ineligible
issuer” as defined in Rule 405 under the 1933 Act.
2.
Purchase and Sale
. Subject to the terms and
conditions and in reliance upon the representations and warranties
set forth herein, the Company agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Company on the Closing Date, at the applicable purchase
price set forth in Schedule I hereto, the Securities set forth
opposite such Underwriter’s name in Schedule II
hereto.
3.
Delivery and Payment
. Delivery of and payment for the
Registered Notes shall be made in the manner, on the date and at
the time specified in Schedule I hereto (or such later date not
later than seven business days after such specified date as the
Representative shall designate), which date and time may be
postponed by agreement between the Representative and the Company
or as provided in this Agreement (such date and time of delivery
and payment for the Securities being herein called the
“Closing Date”). Delivery of the Registered Notes, as
set forth on Schedule I hereto, shall be made to the Representative
for the respective accounts of the several Underwriters against
payment in same day Federal funds by the several Underwriters of
the applicable purchase price. The Registered Notes shall be
registered in such names and in such authorized denominations as
the Representative may request not less than three full business
days in advance of the Closing Date.
The Company agrees to have the Securities
available for inspection, checking and packaging by the
Representative in New York, New York, not later than 1:00 p.m. New
York time on the business day prior to the Closing Date.
4.
Offering by
Underwriters .
(a) It is understood that the several Underwriters
propose to offer the Registered Notes for sale to the public as set
forth in the Final Prospectus.
(b) Each Underwriter severally covenants and agrees
with the Company as to itself that:
(i) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Securities Act
or access thereto is made available pursuant to Rule 173 of the
Securities Act, the Underwriter shall not convey or deliver any
written communication to any person in connection with the initial
offering of the Registered Notes, unless such written communication
(1) is made in reliance on Rule 134 under the Securities Act, (2)
constitutes a prospectus satisfying the requirements of Rule 430B
under the Securities Act or (3) is a Free Writing
Prospectus.
(ii) An Underwriter may convey a Preliminary Term
Sheet to a potential investor prior to entering into a Contract of
Sale with such investor; provided, however, that (x) such
Underwriter shall not enter into a Contract of Sale with such
investor unless the Underwriter has complied with paragraph (i)
above prior to such Contract of Sale, (y) such Underwriter shall
deliver a copy of the proposed Preliminary Term Sheet to the
Depositor and its counsel prior to the anticipated first use and
shall not convey any such Preliminary Term Sheet to which the
Depositor or its counsel reasonably objects.
(iii) An Underwriter may convey Computational
Materials (x) to a potential investor prior to entering into a
Contract of Sale with such investor; provided, however, that (A)
such Underwriter shall not enter into a Contract of Sale with such
investor unless the Underwriter has complied with paragraph (i)
above prior to such Contract of Sale and (B) such Computational
Materials shall not be disseminated in a manner reasonably designed
to lead to its broad unrestricted dissemination; provided, however,
that if such Computational Materials are disseminated in a manner
reasonably designed to lead to its broad unrestricted
dissemination, such Underwriter shall file with the Commission such
Computational Materials, and (y) to an investor after a Contract of
Sale, provided that the Underwriter has complied with paragraph (i)
above in connection with such Contract of Sale. The Underwriter
shall keep sufficient records of any conveyance of Computational
Materials to potential or actual investors and shall maintain such
records as required by the Rules and Regulations.
(iv) If an Underwriter does not furnish a Free
Writing Prospectus that is required to be filed with the Commission
to the Depositor’s counsel prior to the scheduled print date
of the Final Prospectus, such Underwriter will be deemed to have
represented that it did not convey any such Free Writing Prospectus
to any potential investor.
(v) Each Free Writing Prospectus shall contain
legends that are substantially similar to the following:
The
issuer has filed a registration statement (including a prospectus)
with the SEC for the offering to which this free writing prospectus
relates. Before you invest, you should read the base prospectus in
that registration statement and other documents the issuer has
filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting
EDGAR on the SEC website at www.sec.gov. Alternatively, the issuer,
any underwriter or any dealer participating in the offering will
arrange to send you the base prospectus if you request it by
calling toll-free 1-877-858-5407.
This free writing prospectus is not
required to contain all information that is required to be included
in the base prospectus.
The
information in this free writing prospectus is preliminary and is
subject to completion or change.
The
information in this free writing prospectus, if conveyed prior to
the time of your commitment to purchase, supersedes information
contained in any prior similar free writing prospectus relating to
these securities.
This free writing prospectus is not
an offer to sell or a solicitation of an offer to buy these
securities in any state where such offer, solicitation or sale is
not permitted.
This free writing prospectus is
being delivered to you solely to provide you with information about
the offering of the offered notes referred to in this free writing
prospectus and to solicit an indication of your interest in
purchasing such offered notes, when, as and if issued. Any such
indication of interest will not constitute a contractual commitment
by you to purchase any of the offered notes. You may withdraw your
indication of interest at any time.
(vi) Any Computational Materials shall include
legends, in addition to those specified in paragraph (vi) above,
substantially similar to the following:
The information
in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such
assumptions are subject to change.
The information
in this free writing prospectus may reflect parameters, metrics or
scenarios specifically requested by you. If so, prior to the time
of your commitment to purchase, you should request updated
information based on any parameters, metrics or scenarios
specifically required by you.
Neither the
issuer of the securities nor any of its affiliates prepared,
provided, approved or verified any statistical or numerical
information presented in this free writing prospectus, although
that information may be based in part on loan level data provided
by the issuer or its affiliates.
(vii) Each Underwriter severally agrees to retain all
Free Writing Prospectuses that it has used and that are not filed
pursuant to this Section 4 for a period of three years following
the initial bona fide offering of the Registered Notes.
(c) The following terms shall have the meanings set
forth below, unless the context clearly indicates
otherwise:
Computational Materials : Any Free Writing Prospectus prepared by the
Underwriter that contains only (i) information of the type
specified in paragraph (5) of the definition of ABS Informational
and Computational Materials in Item 1101(a) of Regulation AB or
(ii) information that is not Issuer Information.
Contract of
Sale : The meaning set
forth in Rule 159 under the 1933 Act.
Derived
Information : Such
information, if any, in any Free Writing Prospectus prepared by any
Underwriter that is not contained in either (i) the Registration
Statement, the Base Prospectus or Final Prospectus or amendments or
supplements thereto, taking into account information incorporated
therein by reference or (ii) any Pool Information, except to the
extent that any omission or alleged omission in Derived Information
results from a Pool Error.
Free Writing
Prospectus : A
“written communication” within the meaning of Rule 405
under the 1933 Act that describes the Securities and/or the
Mortgage Loans.
Issuer
Information : Such
information as defined in Rule 433(h) under the 1933 Act and which
shall not include information that is merely based on or derived
from such information.
Issuer Free
Writing Prospectus : The
meaning set forth in Rule 405 of the 1933 Act except that (i)
Computational Materials shall not be an Issuer Free Writing
Prospectus and (ii) any Free Writing Prospectus or portion thereof
prepared by or on behalf of an Underwriter than includes any Issuer
information that is not approved by the Depositor for use therein
shall not be an Issuer Free Writing Prospectus.
Preliminary
Term Sheet : A Free
Writing Prospectus that contains information of the type described
in paragraphs (1) - (3) of the definition of ABS Informational and
Computational Materials in Item 1101(a) of Regulation AB but which
does not included Derived Information.
(d) (i) In the event that any Underwriter or the
Company becomes aware that, as of the time of the Contract of Sale,
any Free Writing Prospectus delivered to a purchaser of a
Registered Certificate 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”), the
Underwriter or the Company shall notify the other parties to this
Agreement within one business day after discovery.
(ii) The party responsible for the information to be
corrected, if requested by the Company or an Underwriter, as
appropriate, shall prepare a Free Writing Prospectus with
Corrective Information that corrects the material misstatement in
or omission from the Defective Free Writing Prospectus (such
corrected Free Writing Prospectus, a “Corrected Free Writing
Prospectus”).
(iii) The Underwriters shall deliver the Corrected
Free Writing Prospectus to each purchaser of a Registered
Certificate which received the Defective Free Writing Prospectus
prior to entering into an agreement to purchase any Registered
Notes.
(iv) The Underwriters shall notify such purchaser in
a prominent fashion that the prior agreement to purchase Registered
Notes has been terminated, and of such purchaser’s rights as
a result of termination of such agreement.
(v) The Underwriters shall provide such purchaser
with an opportunity to affirmatively agree to purchase such
Registered Notes on the terms described in the Corrected Free
Writing Prospectus.
(e) Each Underwriter covenants with the Company that
after the Final Prospectus is available, the Underwriter shall not
distribute any written information concerning the Registered Notes
to a prospective purchaser of Registered Notes unless such
information is preceded or accompanied by the Final
Prospectus.
5.
Agreements
. The Company agrees with the
several Underwriters that:
(a) The Company will not file any amendment to the
Registration Statement or supplement to (including the supplement
relating to the Registered Notes included in the Final Prospectus)
the Basic Prospectus, unless the Company has furnished to you a
copy for your review prior to filing, and will not file or
distribute any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus to be transmitted to the Commission
for filing pursuant to Rule 424 under the 1933 Act. The Company
will promptly advise the Representative (i) when the Final
Prospectus shall have been filed or transmitted to the Commission
for filing pursuant to Rule 424, (ii) when any amendment to the
Registration Statement shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration
Statement or the Final Prospectus or for any additional
information, (iv) 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 (v) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registered
Notes for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or
suspension and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to
the Registered Notes is required to be delivered under the 1933
Act, any event occurs as a result of which any Final 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 the light of the circumstances under
which they were made not misleading, or if it shall be necessary to
amend or supplement the Final Prospectus to comply with the 1933
Act or the rules and regulations thereunder, the Company will
promptly prepare and file with the Commission, subject to paragraph
(a) of this Section 5, an amendment or supplement that will correct
such statement or omission or an amendment that will effect such
compliance and, if such amendment or supplement is required to be
contained in a post-effective amendment of the Registration
Statement, will use its best efforts to cause such amendment of the
Registration Statement to be made effective as soon as
possible.
(c) The Company will (i) furnish to the
Representative and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and each amendment thereto that shall become effective on
or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer in connection with the
Registered Notes may be required by the 1933 Act, as many copies of
each Preliminary Final Prospectus, the Final Prospectus and any
amendments thereof and supplements thereto as t
