EXHIBIT
1.1
CITICORP MORTGAGE
SECURITIES, INC.
Citicorp Mortgage Securities
Trust, Series 2006-6
REMIC Pass-Through
Certificates
Underwriting
Agreement
October 11, 2006
To:
Citigroup Global Markets Inc., as Underwriter
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. 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 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 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 Underwriter, and the
Underwriter agrees to purchase from CMSI, all of the offered
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 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 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.
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.
3.
Registration Statement and
Prospectus
(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 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 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 Underwriter will advise CMSI of the final
structure of the offered certificates sufficiently in advance of
the closing date so that CMSI can prepare a final prospectus
relating to the offered certificates (the “Prospectus”)
for delivery to the Underwriter no later than the closing date.
CMSI will use its best efforts to deliver the Prospectus to the
Underwriter as soon as reasonably practicable following the
Underwriter’s advice of the final structure of the offered
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
certificates (the “offering”), promptly advise the
Underwriter
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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 filed,
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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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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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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.
(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 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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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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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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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 “Underwriter’s Statements to be
Included in the Prospectus” furnished to CMSI by or on behalf
of the Underwriter specifically for use in connection with the
preparation of the Prospectus (the “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.
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
certificates by the Underwriter to an investor.
(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 when
considered in
conjunction
with the rest of the Prospectus. 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.
(e) If, at any time when the Prospectus is required
to be delivered under the Securities Act,
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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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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 Underwriter, to the
extent reasonably practicable, on the preparation of such revision,
amendment or supplement.
(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.
4.
Free writing prospectuses
and loan tape
(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 expected subordination
levels (± 0.5%), 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 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 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 Underwriter to deliver the
CMSI free writing prospectus to the relevant investor.
(b) CMSI represents and warrants to the Underwriter
that:
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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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At the time of
sale, the CMSI free writing prospectus, and any loan tape furnished
by CMSI to the Underwriter (as supplemented or corrected by CMSI
sufficiently prior to such time as to reasonably permit the
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 Underwriter to the investor, to the extent not
included in the CMSI free writing prospectus:
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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 certificates (with a description of related prepayment,
collateral and other assumptions), and other pricing
information.
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Principal and
loss allocations to various classes.
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Interest
accrual periods for offered certificates.
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Whether offered
certificates represent interests in the entire mortgage pool or in
one or more mortgage loan groups.
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A description
of third party credit enhancement or derivative instruments
selected by the Underwriter for the offered certificates, together
with the identity of and material information about any
related
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provider or counterparty and the ratings assigned to the provider
or counterparty.
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The identity of
and material information about any special servicer or credit risk
manager selected by the Underwriter for the offered
certificates.
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The fees and
expenses payable to transaction parties.
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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 and other applicable law 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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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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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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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, except that the 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 Underwriter that
was not corrected by information subsequently supplied by CMSI to
the Underwriter sufficiently prior to the time of sale as to
reasonably permit the 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
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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 certificates and (ii) the information contained in the
final loan tape delivered to the Underwriter, all in conformity
with Rule 433 under the Securities Act.
(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
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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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to any investor
prior to the time the Prospectus is filed with the SEC unless at
the time of sale the Underwriter delivers to the investor the CMSI
free writing prospectus and the supplemental information that is
then known or available to the Underwriter.
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(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. CMSI will provide the Underwriter with any filing
information needed to complete such filing.
(h) The 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 certificates. If there is any
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 documents available to
CMSI.
(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 offered 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.
5.
Other representations and
warranties
CMSI represents
and warrants to the Underwriter that:
(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) 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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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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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 10, the Underwriter
will pay (A) all of its own expenses, including the fees of
Cadwalader, Wickersham & Taft LLP and
any other counsel to the Underwriter, (B) any transfer taxes on
resale of any of the offered certificates by it, (C) advertising
expenses connected with any offers made by the 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
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.
(c) If for any reason other than default by the
Underwriter in its obligation to purchase the offered certificates
or termination by the Underwriter pursuant to section 11, CMSI does
not deliver the offered certificates as provided in this agreement,
CMSI will reimburse the Underwriter for its out-of-pocket expenses
(including reasonable fees and disbursements of its counsel)
reasonably incurred by the Underwriter in preparing to purchase the
offered certificates, but CMSI will have no further liability to
the Underwriter with respect to the offered certificates, except as
provided in sections 6(a) and 6(b) above.
7.
No Fiduciary
Relationship
(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 or Citigroup Inc., on the one hand, and the
Underwriter on the other, 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 or
Citigroup Inc. on other matters. CMSI and Citigroup Inc.
acknowledge that the Underwriter has not provided, and is not
expected to provide, any legal, accounting, regulatory or tax
advice to CMSI or Citigroup Inc. with respect to such
transactions.
(b) The purchase price was established
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