Exhibit 1.1
CITICORP MORTGAGE SECURITIES, INC.
REMIC PASS-THROUGH CERTIFICATES, SERIES 2006-2
UNDERWRITING AGREEMENT
March 17, 2006
To: HSBC Securities (USA) Inc., as Underwriter
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
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
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"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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(i) 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,
(ii) of any request by the Commission for an amendment of the
Registration Statement or the Prospectus or for any additional
information,
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose,
and
(iv) of the receipt by 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.
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
(i) will conform in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission,
(ii) 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
(iii) 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").
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
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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,
(i) 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
(ii) the Prospectus must be revised, amended or supplemented to comply
with the Securities Act or the rules and regulations of the
Commission thereunder,
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
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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:
(i) The 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 URL address of or a hyperlink to
an Internet Web site containing static pool information regarding
previous issues of CMSI REMIC pass-through certificates of the
same asset type as the mortgage loans.
(ii) At the time of sale, 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, 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.
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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o 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.
o Principal and loss allocations to various classes.
o Interest accrual periods for offered certificates.
o Whether offered certificates represent interests in the entire
mortgage pool or in one or more mortgage loan groups.
o 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 provider or counterparty and the
ratings assigned to the provider or counterparty.
o The identity of and material information about any special
servicer or credit risk manager selected by the Underwriter for
the offered certificates.
o The fees and expenses payable to transaction parties.
(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)
(i) conformed to the terms and conditions for a communication in Rule
134 or a free writing prospectus in Rule 433 under the Securities
Act,
(ii) 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, allocation and confirmation of
sale, and
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(iii) 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 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 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
(i) to any investor who is not an institutional investor unless the
sale is accompanied or preceded by delivery of the Prospectus,
and
(ii) 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.
(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
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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) 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.
6. EXPENSES; BLUE SKY
(a) CMSI will pay all expenses incidental to the performance of its
obligations under this Agreement, including expenses of
(i) 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,
(ii) KPMG LLP, and
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(iii) preparing and delivering the offered certificates to DTC,
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, Xxxxxxxxxx & Xxxx LLP 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.
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, 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 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, and the
Underwriter will have no fiduciary responsibility or liability to CMSI or
Citigroup regarding such transactions.
(c) Each of CMSI and Citigroup 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 Citigroup, and that the Underwriter
has no obligation to disclose such interests and transactions to CMSI or
Citigroup by virtue of any fiduciary, advisory or agency relationship.
(d) Each of CMSI and Citigroup 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 or Citigroup 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 or Citigroup, including stockholders, employees or creditors of CMSI or
Citigroup. Any review by the Underwriter of CMSI, the transactions contemplated
by this agreement, or any related
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matters will be performed solely for the Underwriter's benefit and not on behalf
of CMSI or Citigroup.
8. CONDITIONS TO THE OBLIGATION OF THE UNDERWRITER
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 and
pending or threatened.
(b) CMSI has delivered to the Underwriter a certificate of CMSI, dated the
closing date and signed by the President, Senior Vice President, Vice President
or an Assistant Vice President of CMSI, to the effect that the signer of the
certificate has examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) CMSI's representations and warranties in this Agreement are true
and correct in all material respects on the closing date with the
same effect as if made on the closing date, and CMSI has complied
with all agreements and satisfied all the conditions on its part
to be performed or satisfied at or prior to the closing date; and
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose
instituted and pending or, to such officer's knowledge,
threatened as of the closing date.
(c) CMSI has delivered to the Underwriter an opinion, dated the closing
date, of the General Counsel, Finance and Capital Markets of Citigroup Inc., to
the effect that:
(i) Each of CMSI and CMI is a validly existing corporation in good
standing under the laws of the State of Delaware and the State of
New York, respectively, with corporate power and authority under
such laws to own its properties and assets and conduct its
business as described in the Prospectus;
(ii) Citibank, N.A. has been duly chartered and is validly existing as
a national banking association in good standing under the laws of
the United States;
(iii) This Agreement has been duly authorized, executed and delivered
by each of CMSI and Citigroup Inc.;
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(iv) The Mortgage Loan Purchase Agreement has been duly authorized,
executed and delivered by CMSI and each originator and
constitutes the valid and legally binding obligation of CMSI and
each such originator, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights and by general
principles of equity;
(v) The Pooling Agreement has been duly authorized, executed and
delivered by CMSI, CMI, as Servicer and Master Servicer, and
Citibank, N.A., in its individual capacity and as Paying Agent,
Certificate Registrar and Authentication Agent and, assuming
valid execution thereof by U.S. Bank National Association, in its
individual capacity and as Trustee, constitutes a valid and
legally binding agreement of CMSI, CMI, and Citibank, N.A.,
enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights and by general principles of
equity;
(vi) The Pooling Agreement is not required to be qualified under the
Trust Indenture Act of 1939, as amended, and the Trust Fund (as
defined in the Pooling Agreement) is not required to be
registered under the Investment Company Act of 1940, as amended;
(vii) The offered certificates have been duly authorized, executed,
issued, authenticated and delivered, and are validly issued and
outstanding and entitled to the benefits provided by the Pooling
Agreement;
(viii) Assuming that the offered class A and class B-1 offered
certificates are rated at the time of issuance in one of the two
highest rating categories by a nationally recognized statistical
rating organization, each such offered certificate at such time
will be a "mortgage related security," as defined in section
3(a)(41) of the Exchange Act;
(ix) The Registration Statement is effective under the Securities Act,
and, to the best knowledge of such counsel:
(A) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or are pending or have been
threatened under the Securities Act.
(B) Each of the Registration Statement at its effective date and
the closing date, and the Prospectus at its date and the closing
date (in each case, with the exception of any information
incorporated by
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reference therein and any numerical, financial, statistical or
quantitative data) appeared on its face to conform in all
material respects to the requirements of the Securities Act and
the applicable rules and regulations of the Commission.
(C) The descriptions in the Prospectus and the Pooling Agreement
at the closing date of the offered certificates, and of the
aspects of certain statutes as set forth in the Prospectus under
the heading "Core prospectus--ERISA considerations" and
"Prospectus supplement--Additional ERISA considerations," are, to
the extent that they constitute statements of matters of law or
legal conclusions with respect thereto, accurate in all material
respects.
(x) Such other opinions with regard to secured transactions,
bankruptcy, insolvency and related matters as the Underwriter
reasonably requests; and
(xi) Each originator affiliated with CMSI is a Delaware corporation, a
New York corporation, a federal savings bank or a national
banking association, as the case may be, validly existing under
applicable law, with full power and authority under such law to
own its properties and conduct its business as described in the
Prospectus.
Such opinion may express its reliance (1) as to factual matters on the
representations and warranties made by, and on certificates or other documents
furnished by officers of, the parties to this Agreement and the Pooling
Agreement, (2) as to legal matters relating to the Employee Retirement Income
Security Act of 1974, on an opinion, dated the closing date, of counsel
acceptable to the Underwriter, and (3) as to legal matters relating to secured
transactions, bankruptcy, insolvency and related matters, on an opinion, dated
the closing date, of Cadwalader, Xxxxxxxxxx & Xxxx LLP, special bankruptcy
counsel to CMSI. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the parties
thereto other than CMSI, CMI, Citibank, N.A., Citigroup Inc. and the
originators. Such opinion may be qualified as an opinion only on the General
Corporation Law of the State of Delaware, the laws of each state in which the
writer of the opinion is admitted to practice law, and the federal law of the
United States.
(d) CMSI has delivered to the Underwriter a letter, dated the closing date,
of the General Counsel, Finance and Capital Markets of Citigroup Inc., to the
effect that in the course of such counsel's review of the Registration Statement
and the Prospectus and discussion of the same with certain officers of CMSI and
the originators and their auditors, no facts came to the attention of such
counsel that led such counsel to believe that
(i) the Registration Statement as of its effective date or the
closing date included an untrue statement of a material fact or
omitted to state a
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material fact required to be stated therein or necessary to make
the statements therein not misleading, or
(ii) the Prospectus as of its date or the closing date, included an
untrue statement of a material fact or omitted 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,
it being understood that such counsel need express no view as to any information
incorporated by reference or any financial, numerical, statistical or
quantitative data in the Registration Statement or the Prospectus.
(e) CMSI has delivered to the Underwriter an opinion, dated the closing
date, of Cadwalader, Xxxxxxxxxx & Xxxx LLP, special tax counsel to CMSI, to the
effect that the statements in the Prospectus under the headings "Core
prospectus-Taxation of certificate holders," "Core prospectus--Taxation of the
Trust," and "Prospectus supplement--Federal income tax consequences," to the
extent such statements summarize material tax consequences of the purchase,
beneficial ownership and disposition of the offered certificates to the holders
thereof described therein, are correct in all material respects.
(f) The Underwriter have received from Cadwalader, Xxxxxxxxxx & Xxxx LLP,
counsel for the Underwriter, such opinion or opinions, dated the closing date,
with respect to the issuance and sale of the offered certificates, the
Registration Statement and the Prospectus, and such other related matters as the
Underwriter may reasonably request.
(g) KPMP LLP have furnished to the Underwriter a letter, dated the closing
date, in form and substance satisfactory to the Underwriter, stating in effect
that they have performed certain specified procedures, agreed upon between KPMG
LLP, CMSI and the Underwriter, as a result of which they have determined that
the information of an accounting, financial or statistical nature with respect
to "static pool information" contained on CMSI's website at
xxx.xxxxxxxxxxxxxxx.xxx relating to REMIC pass-through certificates issued after
January 1, 2006 and included in the Prospectus under Rule 312 of the
Commission's Regulation S-T, agrees with the accounting records of the
originators, excluding any questions of legal interpretation
(h) KPMG LLP have furnished to the Underwriter a letter, dated the closing
date, in form and substance satisfactory to the Underwriter, stating in effect
that:
(i) They have performed certain specified procedures, agreed upon
between KPMG LLP CMSI and the Underwriter, as a result of which
they have determined that the information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the originators and which is obtained from
an analysis of a sample of the mortgage loans) set forth in the
Prospectus under the caption "Prospectus
supplement--Summary--Series overview--the mortgage
13
loans at April 1, 2006 (the cut-off date)" and in the detailed
description relating to such prospectus supplement and the
mortgage loans agrees with the accounting records of the
originators, excluding any questions of legal interpretation.
(ii) They have compared the data contained in a data sheet or computer
tape prepared by CMI for the mortgage loans to information
contained in the mortgage loan files furnished by the originators
and in such other sources as will be specified by them, based on
an appropriate sampling thereof, and found such data and
information to be in agreement, unless otherwise noted in such
letter.
(i) If there is more than one class of offered certificates, KPMG LLP have
furnished to the Underwriter a letter, dated the date of the Prospectus, in form
and substance satisfactory to the Underwriter, stating in effect that:
(i) Using the assumptions and methodology used by CMSI (which include
and do not conflict with any assumptions and methodology set
forth in the Prospectus), all of which will be described by
reference in such letter, they have recalculated the percentages
and weighted average lives set forth in the Prospectus in the
tables relating to the "Prospectus supplement--Principal balance
as percent of initial principal balance" for each class of
offered certificates at certain percentages of the prepayment
model to be set forth in the Prospectus, compared the results of
their calculations to the corresponding items in the respective
table and found each such percentage and weighted average life
set forth in each such table to be in agreement with the
respective results of such calculations.
(ii) Using the assumptions and methodology prescribed in the
Prospectus, they have recalculated, for each distribution day (as
defined in the Prospectus), the aggregate of the amount of cash
to be on deposit in the Trust on the determination day
immediately preceding such distribution day and found that such
aggregate amount equals or exceeds the aggregate amount of
interest and distributions in reduction of principal balance that
is distributable on the offered certificates on the following
distribution day, as recalculated by them.
(iii) Using the assumptions and methodology prescribed in the Pooling
Agreement and the Prospectus, they have recomputed the last
distribution day for each class of offered certificates and found
such dates to be in agreement with those set forth in the
Prospectus.
(iv) If one or more classes of offered certificates will be entitled
to receive distributions in respect of interest at other than a
fixed rate or distributions in reduction of principal balance
according to a schedule of
14
planned or targeted balances, or have other characteristics which
give rise to the use of tables in the Prospectus reflecting yield
or cash flow, such letters will also set forth such other
statements as are customarily set forth by KPMG LLP in such
letters with respect to such classes.
(v) Using the assumptions and methodology used by CMSI set forth in
the Prospectus, all of which will be described by reference in
such letter, they have recalculated the percentages set forth in
the Prospectus in the tables entitled "Prospectus
supplement--Weighted average lives and yields to
maturity--Pre-tax yield to maturity" of classes B-2 and B-3,
compared the results of their calculations to the corresponding
items in such table and found each such percentage set forth in
such table to be in agreement with the results of such
calculations.
(j) Subsequent to the date hereof, there will not have occurred any change,
or any development involving a prospective change, in or affecting the business
or properties of CMSI which the Underwriter concludes, after consultation with
CMSI, in the judgment of the Underwriter, materially impairs the investment
quality of the offered certificates so as to make it impractical or inadvisable
to proceed with the public offering or the delivery of the offered certificates
as contemplated by the Prospectus.
(k) The offered certificates have been rated at least the rating or ratings
specified in Schedule I by the rating agency or agencies specified in Schedule I
and such ratings will not have been rescinded or placed under review.
(l) CMSI have furnished to the Underwriter such further information,
certificates and documents as the Underwriter may reasonably have requested not
less than three full business days prior to the closing date.
If any of the conditions specified in this section 8 are not fulfilled in all
material respects when and as provided in this Agreement, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement are not
in all material respects reasonably satisfactory in form and substance to the
Underwriter and its counsel, this Agreement and all obligations of the
Underwriter hereunder may be canceled at, or at any time prior to, the closing
date by the Underwriter. Notice of such cancellation will be given to CMSI in
writing, or by telephone or telegraph confirmed in writing.
9. CONDITION TO THE OBLIGATION OF CMSI
The obligation of CMSI to issue and sell the offered certificates will be
subject to the satisfaction of the conditions that
(a) on the closing date the class X-0, X-0 and B-6 certificates (as
described in the Prospectus) have been issued and sold under the Purchase
Agreement dated the date of this Agreement among CMSI, Citigroup Inc. and the
purchaser thereof; and
15
(b) the Underwriter has advised CMSI of the final structure of the offered
certificates sufficiently in advance of the closing date so as to enable CMSI to
prepare the Prospectus for delivery to the Underwriter by the closing date.
10. INDEMNIFICATION AND CONTRIBUTION
(a) In this section 10,
(i) "claims" includes losses, claims, damages, expenses (including
legal and other expenses reasonably incurred in investigating or
defending the claims, and damages resulting from the
Underwriter's having to reform a contract for the sale of
securities to an investor) or liabilities, joint or several, (or
actions in respect thereof) under the Securities Act, the
Exchange Act, or other federal or state statutory law or
regulation, at common law or otherwise, and
(ii) a "controlling person" of a party is a person that controls the
party within the meaning of either the Securities Act or the
Exchange Act, and in the case of CMSI includes any person who
signed the Registration Statement.
(b) CMSI will indemnify and hold harmless the Underwriter and each of its
controlling persons against any claims to which any of them becomes subject, to
the extent such claims arise out of or are based upon a breach of any
representation or warranty given by CMSI to the Underwriter in section 3(a),
3(c) or 4(b).
(c) The Underwriter will indemnify and hold harmless CMSI and each of its
controlling persons against any claims to which any of them becomes subject, to
the extent such claims are based upon breach of any express representation or
warranty given by the Underwriter to CMSI in section 3(d) or 4(d).
(d) The indemnities in sections 10(b) and 10(c) will be in addition to any
liability that CMSI or the Underwriter may otherwise have.
(e) If a person entitled to indemnification under this section 10 is
notified of any action or threatened action involving a claim for which the
person may be entitled to seek indemnification or reimbursement under this
section 10, the person must promptly notify the indemnifying party in writing of
the action. However, such person's failure to notify the indemnifying party will
not relieve the indemnifying party from any liability to such person (i) under
this section 10 except to the extent that the indemnifying party is materially
prejudiced by such failure, or (ii) otherwise than under this section 10.
The indemnifying party will be entitled to participate in any such action, and
to the extent that it may elect by written notice delivered to the indemnified
person promptly after being notified by the indemnified person of the action, to
assume the defense thereof, with counsel selected by the indemnifying party and
reasonably satisfactory to the indemnified person. However, if the defendants in
any such action include both
16
indemnified persons and the indemnifying party, and an indemnified person
reasonably concludes that there may be legal defenses available to it and/or
other indemnified persons that are different from or additional to those
available to the indemnifying party, the indemnified person or persons may
select a single separate counsel to assert such legal defenses and to otherwise
participate in the defense of the action on behalf of such indemnified person or
persons.
Upon the indemnifying party's so assuming the defense of the action, the
indemnifying party will not be liable to the indemnified person in connection
with the defense thereof, except
(i) for the expenses of a single separate counsel to represent
indemnified persons in accordance with the last sentence in the
preceding paragraph, or
(ii) where the indemnifying party does not employ counsel reasonably
satisfactory to the indemnified person within a reasonable time
after the indemnified person notifies the indemnifying party of
the action.
The indemnifying party will not be liable for a settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there is a final judgment for the plaintiff, the indemnifying
party will indemnify the indemnified person from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party will
settle any pending or threatened proceeding without the prior written consent of
each person who could seek indemnity under this section 10 with respect to such
proceeding, unless such settlement
(i) does not include a statement as to or admission of, fault,
culpability or a failure to act by or on behalf of such person,
and
(ii) includes an unconditional release of such indemnified person from
all liability on claims that are the subject matter of such
proceeding.
(f) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this section 10 is
due in accordance with its terms but is legally unavailable or insufficient to
hold harmless an indemnified person, CMSI and the Underwriter will contribute to
the aggregate claims to which CMSI and the Underwriter may be subject in an
appropriate proportion to reflect both the relative benefits received by and the
relative fault of CMSI and the Underwriter, except that no person guilty of
fraudulent misrepresentation (within the meaning of section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of fraudulent misrepresentation. The relative benefits received by CMSI
and the Underwriter will be deemed to be in the same proportion as the total net
proceeds received by CMSI bears to the total underwriting discount and
commission received by the Underwriter. Relative fault will be determined by
reference to whether any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a
17
material fact, or such inaccurate or untrue statement or representation, relates
to information supplied by CMSI or the Underwriter, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such statement, omission or representation. For purposes of this
section 10, each controlling person will have the same rights to contribution as
the related party. Any person entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
person for which a claim for contribution may be made against a party under this
section (f), notify the party from whom contribution may be sought, but the
omission to so notify such party will not relieve such party from any other
obligation it may have under this section (f) or otherwise. Notwithstanding the
foregoing, the Underwriter will not be required to contribute any amount in
excess of the amount by which the total price at which the offered certificates
were offered to the public exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
11. TERMINATION
This Agreement will be subject to termination in the absolute discretion of
the Underwriter, by notice given to CMSI prior to delivery of and payment for
the offered certificates, if prior to such time (i) trading in securities
generally on the New York Stock Exchange has been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
is declared by either federal or New York State authorities, or (iii) there is a
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States makes it, in the
reasonable judgment of the Underwriter after consultation with CMSI,
impracticable to market the offered certificates.
12. REPRESENTATIONS AND INDEMNITIES TO SURVIVE
The respective agreements, representations, warranties, indemnities and
other statements of CMSI and Citigroup Inc. and their respective officers and of
the Underwriter set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriter, CMSI or Citigroup Inc. or any of the officers, directors or
controlling persons referred to in section 10 hereof, and will survive delivery
of and payment for the offered certificates. The provisions of sections 10 and
13 hereof will survive the termination or cancellation of this Agreement.
13. OBLIGATION OF CITIGROUP INC.
Citigroup Inc. agrees, in consideration of and as an inducement to the
Underwriter's purchase of the offered certificates from CMSI, to indemnify and
hold harmless the Underwriter, and each person who controls the Underwriter
against any failure by CMSI to perform any of its obligations under this
Agreement, including any
18
obligation of CMSI to the Underwriter pursuant to sections 6 and 10 hereof,
after receipt from the Underwriter of written notice of any such failure.
14. SUCCESSORS
This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in section 10 hereof and their respective
successors and assigns, and no other person will have any right or obligation
hereunder.
15. APPLICABLE LAW
This Agreement will be governed by and construed in accordance with the
laws of the State of New York.
16. MISCELLANEOUS
This Agreement supersedes all prior or contemporaneous agreements and
understandings relating to its subject matter. Neither this Agreement nor any
term hereof may be changed, waived, discharged or terminated except by a writing
signed by the party against whom enforcement of such change, waiver, discharge
or termination is sought.
17. NOTICES
All communications hereunder will be in writing and effective only upon
receipt and, if sent to the Underwriter, will be delivered to the Underwriter's
address first stated in this Agreement (with a copy to its General Counsel's
Office), or if sent to CMSI, will be delivered to Citicorp Mortgage Securities,
Inc., 0000 Xxxxxxxxxx Xxxxx, X'Xxxxxx, Xxxxxxxx 00000, Attn: Xxxxx Xxxx Slough,
or if sent to Citigroup Inc., will be delivered to Citigroup Inc., Citigroup
Center, 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxxx
Xxxxx.
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to each of the undersigned a copy hereof, whereupon this
letter and your acceptance will represent a binding agreement among CMSI,
Citigroup Inc. and the Underwriter.
Very truly yours,
CITICORP MORTGAGE SECURITIES, INC.
By: /s/ Xxxxx Xxxx Slough
------------------------------------
Xxxxx Xxxx Slough
Senior Vice President
CITIGROUP INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Assistant Treasurer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
HSBC SECURITIES (USA) INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Authorized Signatory
20
SCHEDULE I
Underwriting Agreement dated March 17, 2006
REMIC Pass-Through Certificates, Series 2006-2
Description of mortgage loans: For each pool of mortgage loans, the
description under COLLATERAL INFORMATION on the
Trade Ticket that is attached as Attachment A
hereto. Any reference in the Trade Ticket to 15
YR REG N/C means 10- to 15- year fixed-rate
conventional one- to four-family mortgage
loans, any reference to 15 YR NC ALT-A means
10- to 15- year fixed-rate Alt-A one- to
four-family mortgage loans, any reference to 30
YR REG N/C means 20- to 30- year fixed-rate
conventional one- to four-family mortgage
loans, any reference to 30 YR RELO N/C means
20- to 30- year fixed-rate conventional one- to
four-family mortgage loans that are originated
through corporate relocation programs, any
reference to 30 YR REG N/C IO means 20- to 30-
year fixed-rate conventional one- to
four-family mortgage loans that have an
interest-only period of ten years following
origination, any reference to 30 YR NC ALT-A
means 20- to 30- year fixed-rate Alt-A one- to
four-family mortgage loans, and any reference
to 30 YR NC ALT-A IO means 20- to 30- year
fixed-rate Alt-A one- to four-family mortgage
loans that have an interest-only period of ten
years following origination. The aggregate
principal balance of the mortgage loans in each
pool is shown on the Trade Ticket under Trade
Amount, and is subject to an upward or downward
variance by closing of up to 5%. The weighted
average per annum interest rate of the mortgage
loans in each pool as of the cut-off date is
expected to be the percentage shown for the
pool under WAC--Final Pool on the Trade Ticket,
plus or minus the basis points per annum shown
on the Trade Ticket. The weighted average
remaining term to stated maturity of the
mortgage loans in each pool as of the cut-off
date is expected to be the number of months for
the pool shown under WAM--Final Pool on the
Trade Ticket, plus or minus the number of
months shown on the Trade Ticket, except that
the number of months can not exceed 180 for a
pool of 15 YR REG N/C and 15 YR NC ALT-A
mortgage loans or 360 for a pool of 30 YR REG
N/C, 30 YR RELO N/C, 30 YR REG N/C IO or 30 YR
NC ALT-A mortgage loans.
Offered certificates: Senior class A (NON-PO) and, if shown on a
Trade Ticket, class A-PO and/or class A-IO
certificates (the "offered
I-1
class A certificates") and subordinated class
X-0, X-0 and B-3 certificates (the "offered
class B certificates").
If there is only a single pool of mortgage
loans, each class of offered certificates has a
principal balance equal to the percentage for
the class specified under SIZE in the Trade
Ticket of the Trade Amount specified in the
Trade Ticket.
If there is more than one pool of mortgage
loans:
(a) The offered class A certificates (other
than any offered class A-IO certificates) in
each "group" (as defined in the Pooling
Agreement) have a principal balance equal to
the percentage for the class specified under
SIZE for the related pool of the related Trade
Amount specified in the Trade Ticket, and
(b) Each class of offered class B certificates
has a principal balance equal to the aggregate
of the principal balance of its component
classes. The principal balance of a component
class of a class of certificates equals the
percentage for such class specified under SIZE
of the Trade Amount, as such SIZE and Trade
Amount are specified for the pool related to
the group for the component class on the Trade
Ticket.
The principal balance of each class of
certificates is subject to upward or downward
variance at closing of up to 5%.
The offered class A certificates may include
one or more classes of class A certificates
with the prior consent of an authorized officer
of CMSI, which consent will not unreasonably be
withheld. Additionally, class A-PO and A-IO
certificates may be composite classes of
certificates formed from ratio-stripped PO and
IO component classes, respectively, from
different pools.
Purchase price: If there is a single pool of mortgage loans,
the sum of (a), (b) and (c):
(a) The aggregate of the prices of each class
of offered certificates. The price of a class
of certificates is calculated by multiplying
the principal balance (or for any
ratio-stripped IO class, notional balance) of
the class at closing by the PRICE INFORMATION
percentage for the class shown on the Trade
Ticket.
(b) Accrued interest on the aggregate principal
balance (or, for any ratio-stripped IO class,
notional balance) at closing of each class of
offered certificates from (and including) the
ISSUE DATE shown on the Trade Ticket to (but
excluding) the SETTLEMENT DATE shown on the
I-2
Trade Ticket at a rate per annum equal to the
target rate stated in the Pooling Agreement.
(c) $75,000.
If there is more than one pool of mortgage
loans, the sum of (d), (e) and (f):
(d) The aggregate, for each pool, of the prices
of each class (or component class) of offered
certificates listed on the Trade Ticket,
calculated by multiplying the principal balance
(or for any ratio-stripped IO class, notional
balance) at closing of each class (or component
class) of offered certificates in the group
related to the pool (other than any composite
classes) by the PRICE INFORMATION percentage
for the class (or component class) shown for
such pool on the Trade Ticket.
(e) accrued interest on the aggregate principal
balance (or, for any ratio-stripped IO
certificates, notional balance) at closing of
the offered certificates (other than any
composite classes or ratio-stripped PO classes
of certificates) from (and including) the ISSUE
DATE shown on the Trade Ticket to (but
excluding) the SETTLEMENT DATE shown on the
Trade Ticket at a rate per annum equal to the
target rate for the pool stated in the Pooling
Agreement.
(f) $75,000.
Originator and Address: CitiMortgage, Inc.(1)
0000 Xxxxxxxxxx Xxxxx
X'Xxxxxx, Xxxxxxxx 00000
Cut-off date: The ISSUE DATE shown on the Trade Ticket
Ratings of
offered certificates: Each class of offered certificates will have
the ratings of the rating agencies shown on the
Trade Ticket. "S&P" on the Trade Ticket refers
to Standard & Poor's Ratings Services,
"Moody's" refers to Xxxxx'x Investors Service,
Inc., and "Fitch" refers to Fitch Ratings.
Denominations: The denominations of each class of offered
certificates will be as set forth in the
Prospectus. Such denominations will be set by
the Underwriter, except that (1) the minimum
denomination of each certificate of a class of
offered certificates will be $1,000, and (2) if
the initial principal or notional balance of an
offered class of certificates is not a
permitted denomination for a certificate of
that class, one
----------
(1) Mortgage loans of this originator include mortgage loans originated by
Citibank, N.A. or originated or acquired by Citibank, Federal Savings Bank
I-3
certificate of the class may be issued in a
different denomination.
Underwriter's Statements to
be Included in the Prospectus: The purchase price for the offered certificates
will be set by the underwriter or negotiated by
the purchaser and the underwriter at the time
of sale.
Subject to the terms and conditions of the
underwriting agreement among Citigroup Inc.,
CMSI and the underwriter, the underwriter will
purchase the offered certificates from CMSI
upon issuance. The underwriter has committed to
purchase all of the offered certificates if any
certificates are purchased. The underwriter
will distribute the offered certificates from
time to time in negotiated transactions or
otherwise at varying prices to be determined at
the time of sale.
In connection with the purchase and sale of the
offered certificates, the underwriter may be
deemed to have received compensation from CMSI
in the form of underwriting discounts.
IN CONNECTION WITH THIS OFFERING, THE
UNDERWRITER MAY OVER-ALLOT OR EFFECT
TRANSACTIONS THAT STABILIZE OR MAINTAIN THE
MARKET PRICE OF THE OFFERED CERTIFICATES AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
Delivery and Payment: Same day funds by federal funds wire.
Closing date and Location: 10:00 a.m. (New York City time) on the
SETTLEMENT DATE shown on the Trade Ticket at
the offices of:
Citigroup Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
I-4
ATTACHMENT A
A-1
