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Exhibit 1.1
CITICORP MORTGAGE
SECURITIES, INC.
REMIC Pass-Through
Certificates, Series 200[*]-[*]
Underwriting
Agreement
[Month day], 200[*]
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To:
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[Underwriter],
as Underwriter
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[Address]
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Ladies and
Gentlemen:
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Citicorp
Mortgage Securities, Inc., a Delaware corporation
(“CMSI”), proposes to sell to you, as underwriter (the
“Underwriter”), the offered class A and class B REMIC
Pass-Through Certificates (the “offered certificates”)
described in Schedule I. The offered 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. An election will be made 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 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, [Bank], 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.
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CMSI,
Citigroup Inc., and the Underwriter agree as follows:
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Purchase and Sale
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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 Underwriter, and the Underwriter agrees to purchase
from CMSI, all of the offered certificates at the purchase price
set forth in Schedule I.
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Delivery and Payment
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CMSI
will deliver one or more certificates representing each class of
offered certificates to the Underwriter’s account at the
office, on the date and at the time (the “closing
date”) specified in Schedule I against payment by the
Underwriter of the purchase
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price to or upon the order of
CMSI in the manner provided in Schedule I. Unless otherwise
specified in Schedule I, the offered 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 certificates will be represented
by book entries on the records of DTC and its participants.
Definitive Certificates representing the offered Certificates will
be available as set forth in Schedule I.
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CMSI
will have the offered certificates available for inspection by the
Underwriter in New York, New York, one business day prior to the
closing date.
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Registration Statement and
Prospectus
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(a)
CMSI represents and warrants to the Underwriter that CMSI has filed
a registration statement (File No. 333-130333), 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 such
registration statement has been issued and no proceedings for that
purpose have been initiated by the Commission. CMSI further
represents and warrants to the 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
Rule.
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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.
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(b)
Prior to the closing date, CMSI will file a final prospectus
relating to the offered certificates (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 promptly advise the Underwriter when the Prospectus
has been so filed and, prior to the termination of the offering of
the offered certificates (the “offering”), will also
promptly advise the Underwriter
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(i)
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when any
amendment to the Registration Statement relating to the offered
certificates has become effective or any revision of or supplement
to the Prospectus has been so 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 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
certificates, or any revision of or supplement to the Prospectus,
unless a copy has been furnished to the Underwriter for its review
prior to filing.
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(c)
CMSI represents and warrants to the Underwriter that
the Registration Statement on each of the date of this Agreement,
the closing date, and each date that offered certificates are sold
by the Underwriter to any investor, and the Prospectus as of its
date, the closing date, and each date that offered certificates are
sold by the Underwriter to any investor,
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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,
and
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(ii)
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will 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,
except that CMSI makes no representation or warranty
concerning written information furnished to CMSI by or on behalf of
the Underwriter specifically for use in connection with the
preparation of the Prospectus, consisting solely of such
Underwriter’s statements as are included in Schedule I (the
“Underwriter supplied Prospectus
information”).
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(d)
The Underwriter represents and warrants to CMSI that
the 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. CMSI
acknowledges that the Underwriter supplied Prospectus information
comprises the only written information furnished by or on behalf of
the Underwriter for inclusion in the Prospectus.
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(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.
(f) CMSI will
furnish to the 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 certificates as contemplated by this Agreement.
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Free writing
prospectuses and loan tape
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(a)
CMSI will deliver electronically to
the Underwriter in Portable Document Format, not later than two
business days following the date on which CMSI notifies the
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 class of offered certificates), the expected
parameters of the mortgage loan pools, the subordination levels
(± 0.[*]%), 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 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 (the “CMSI
free writing prospectus”). CMSI will deliver to the
Underwriter electronically in Portable Document Format updated CMSI
free writing prospectuses to correct any material misstatements or
omissions 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 Underwriter
sufficiently prior to such time as to reasonably permit the
Underwriter to deliver the CMSI free writing prospectus to the
relevant investor.
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(b)
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CMSI represents
and warrants to the Underwriter that:
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(i)
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Each CMSI free writing prospectus
will (A) contain the legend required by section (c)(2)(i) of Rule
433 under the Securities Act, (B) identify the Commission file
number of the Registration Statement, and (C) include the specific address of or a hyperlink
to an Internet Web site containing static pool information
regarding previous issues of CMSI REMIC pass-through
certificates.
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(ii)
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At the time the
investor commits to buy offered certificates from the Underwriter,
the CMSI free writing prospectus, and the loan tape most recently
furnished by CMSI to the Underwriter (as supplemented or corrected
by CMSI prior to such time), 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, provided that no
representation or warranty is made as to the effect of the
exclusion from the CMSI free writing prospectus of any information
regarding the properties of particular classes of offered
certificates, or a detailed description of the mortgage
loans.
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(c) CMSI will
provide the 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 Underwriter
acknowledges that, to the extent the listing of the mortgage loans
contains any nonpublic personal information, the Underwriter will
be bound by the provisions of Rule 11 of Regulation S-P regarding
limits on redisclosure and reuse of such information.
(d) The Underwriter
represents and warrants to CMSI that any written communication
containing material information about CMSI or its affiliates or the
offered certificates furnished to a prospective investor by the
Underwriter, other than a CMSI free writing prospectus, the
Prospectus, the Registration Statement or the loan tape most
recently furnished by CMSI to the 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, and
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(iii)
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if a free
writing prospectus, did not 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, if delivered to the prospective
investor, in light of the circumstances under which they were made,
not misleading, except that the Underwriter makes no
representation or warranty to the extent that (A) a misstatement
was the result of any inaccurate information supplied by CMSI to
the Underwriter that was not corrected by information subsequently
supplied by CMSI to the Underwriter sufficiently prior to the
commitment of sale of offered certificates to the investor as to
reasonably permit the Underwriter to correct any statement made to
the investor based on such misstatement, or (B) the free writing
pro-
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spectus
substantially restates a statement in the Prospectus or CMSI free
writing prospectus (a “restatement”), and does not omit
to state 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.
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(e)
Not later than four business day
prior to the closing, the Underwriter will deliver to CMSI, in
electronic form suitable for conversion to HTML format for filing
with the Commission, all ABS informational and computational
material furnished to any investor, other than ABS informational
and computational material (i) concerning terms of the offered
certificates that are not the final terms of the offered
certificates, or (ii) prepared by or on behalf of the Underwriter
on the basis of or derived from “issuer information”
(as defined in Rule 433 under the Securities Act) furnished to the
Underwriter by CMSI. CMSI will file such ABS informational and
computational material with the Commission as part of a free
writing prospectus no later than the time such material is required
to be filed under Rule 433 under the Securities Act.
Notwithstanding the preceding sentence, CMSI will have no
obligation to file materials provided by the Underwriter that CMSI
reasonably determines are not required to be filed pursuant to Rule
433, or that contain erroneous information or an untrue statement
of a material fact or that, when read in conjunction with the
Prospectus, omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
it being understood, however, that CMSI will have no obligation to
review or pass upon the accuracy or adequacy of, or to correct, any
ABS informational or computational material provided by the
Underwriter to CMSI.
(f)
The Underwriter will not sell, and
will obligate each dealer to whom it sells any offered 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 certificates to an investor who is not an
institutional investor unless the sale is accompanied or preceded
by delivery of the Prospectus.
(g)
The 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
Underwriter in a manner reasonably designed to lead to its broad,
unrestricted dissemination.
(h)
The Underwriter will retain for three
years following conclusion of the offering
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(i)
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all free
writing prospectuses that it has used in the offering that are not
filed with the Commission, and
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(ii)
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written records
documenting, as to each investor in offered certificates, the time
of sale to the investor, and the date on which each CMSI free
writing prospectus and each free writing prospectus prepared by or
on behalf of the Underwriter was conveyed to the investor. If there
is any
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litigation or threatened litigation against CMSI or any of its
affiliates with respect to the offering, the Underwriter will, on
CMSI’s request, make copies of such records available to
CMSI.
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(i)
The Underwriter will promptly provide
CMSI with any information within the 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 Certificates. The
Underwriter will use its best efforts to cause any credit
enhancement provider, derivative counterparty, special servicer or
credit risk manager arranged by the Underwriter in connection with
the offered 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
(j)
Notwithstanding any other provision
of this Agreement, in any action by CMSI or the Underwriter against
the other party to enforce any rights under this section 4, the
losing party will pay all costs and expenses of the prevailing
party, including legal fees and expenses, incurred in connection
with such action.
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Other
representations and warranties
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CMSI represents
and warrants to the Underwriter that:
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(a)
Each of the class A and class B-1
offered 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 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)
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;
(c)
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; and
(d)
CMSI is not, and on the date on which
the first bona fide offer of the Certificates is made will not be,
an “ineligible issuer,” as defined in Rule 405 under
the Securities Act.
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(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, printing 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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[Auditors]
(other than their expenses relating to the preparation of the
letter referred to in section 9(c) below, which will be paid by the
Underwriter), and
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(iii)
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preparing and
delivering the offered certificates to DTC,
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provided, however
, that except as provided in this
section (a) and in section 8, the Underwriter will pay (A) all of
its own expenses, including the fees of [name of counsel] and any
other counsel to the Underwriter, (B) any transfer taxes on resale
of any of the offered certificates by it, and (C) advertising
expenses connected with any offers made by the
Underwriter.
(b)
CMSI will use its best efforts to
arrange for, and will pay all expenses of, the qualification of the
offered 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 offered
certificates and to arrange for the determination of the legality
of the offered 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.
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No Fiduciary
Relationship
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(a)
The Underwriter has been retained
solely to act as underwriter in connection with the sale of the
offered certificates, and no fiduciary, advisory or agency
relationship between CMSI and the Underwriter has been created in
respect of any of the transactions contemplated by this Agreement,
irrespective of whether the Underwriter has advised or is advising
CMSI on other matters;
(b)
The purchase price was established by
CMSI following discussions and arm’s-length negotiations with
the Underwriter, and CMSI is capable of evaluating and
understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated by this
Agreement.
(c)
CMSI has been advised that the
Underwriter and its affiliates are engaged in a broad range of
transactions that may involve interests that differ from those of
CMSI, and that the Underwriter has no obligation to disclose such
interests and transactions to CMSI by virtue of any fiduciary,
advisory or agency relationship.
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(d) CMSI waives, to the
fullest extent permitted by applicable law, any claims it may have
against the Underwriter for breach of fiduciary duty, and agrees
that the Underwriter will have no liability (whether direct or
indirect) to CMSI in respect of such a fiduciary duty claim or to
any person asserting a fiduciary duty claim on behalf of or in
right of CMSI, including stockholders, employees or creditors of
CMSI.
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Conditions
to the Obligation of the Underwriter
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The
Underwriter’s obligation to purchase the offered certificates
will be subject to the accuracy in all material respects of
CMSI’s representations and warranties in this Agreement at
the date of this Agreement and the closing date, to the accuracy of
the statements of CMSI made in any officer’s certificate
delivered pursuant to this Agreement, to the performance by CMSI of
its obligations under this Agreement, and to the following
additional conditions on the closing date:
(a)
No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose instituted
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