CITIGROUP MORTGAGE LOAN TRUST INC. $492,491,000 (Approximate) Citigroup Mortgage Loan Trust Inc. Asset-Backed Pass-Through Certificates, Series 2006-HE3 UNDERWRITING AGREEMENT
Exhibit
1.1
CITIGROUP
MORTGAGE LOAN TRUST INC.
$492,491,000
(Approximate)
Citigroup
Mortgage Loan Trust Inc.
Asset-Backed
Pass-Through Certificates,
Series
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December
8, 2006
Citigroup
Global Markets Inc.
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Dear
Sir
or Madam:
Citigroup
Mortgage Loan Trust Inc. (the “Company”), a Delaware corporation, proposes to
issue Citigroup Mortgage Loan Trust 2006-HE3, Asset-Backed Pass-Through
Certificates, Series 2006-HE3 (the “Certificates”), under a Pooling and
Servicing Agreement (the “Pooling and Servicing Agreement”), dated as of
December 1, 2006, among the Company, JPMorgan
Chase Bank, National Association, Ocwen Loan Servicing, LLC, Countrywide Home
Loans Servicing LP and ▇▇▇▇▇ Fargo Bank, N.A.
(the
“Servicers”), Citibank, N.A. (the “Trust Administrator”) and U.S. Bank National
Association (the “Trustee”),
and
proposes to sell the Registered Certificates (as defined below) to the
underwriter named in Schedule II hereto (the “Underwriter”). If the firm or
firms listed in Schedule II hereto include only Citigroup Global Markets Inc.,
then the terms “Underwriters” and “Representative,” as used herein, shall each
be deemed to refer to Citigroup Global Markets Inc. The Certificates are
designated as (i) the Class A-1 Certificates, the Class A-2A Certificates,
the
Class A-2B Certificates, the Class A-2C Certificates and Class A-2D Certificate,
(ii) the Class M-1 Certificates, the Class M-2 Certificates, the Class M-3
Certificates, the Class M-4 Certificates, the Class M-5 Certificates, the Class
M-6 Certificates, the Class M-7 Certificates, the Class M-8 Certificates, the
Class M-9 Certificates and the Class M-10 Certificates, (iii) the Class CE
Certificates and the Class P Certificates (the “Retained Certificates”) and (iv)
the Class R Certificates and the Class R-X Certificates.
The
Certificates will represent in the aggregate the entire beneficial ownership
interest in a trust fund (the “Trust Fund”) consisting primarily of a segregated
pool (the “Mortgage Pool”) of one- to four-family, fixed-rate and
adjustable-rate, first-lien and second lien residential mortgage loans (the
“Mortgage Loans”). Each Mortgage Loan provides for an original term to maturity
of not greater than 30 years. The Mortgage Loans will be acquired by the Company
from Citigroup Global Markets Realty Corp. (the “Seller”) in exchange for
immediately available funds representing the purchase price and the Retained
Certificates. The Certificates are described more fully in Schedule I hereto.
The Class A-2A Certificates, the Class A-2B Certificates, the Class A-2C
Certificates, the Class A-2D Certificates, the Class M-1 Certificates, the
Class
M-2 Certificates, the Class M-3 Certificates, the Class M-4 Certificates, the
Class M-5 Certificates, the Class M-6 Certificates, the Class M-7 Certificates,
the Class M-8 Certificates and the Class M-9 Certificates (collectively, the
“Registered Certificates”) are more fully discussed in a registration statement
which the Company has furnished to you. This is to confirm the arrangements
with
respect to your purchase of the Registered Certificates.
Capitalized
terms used but not defined herein shall have the meanings assigned thereto
in
the Pooling and Servicing Agreement.
1. Representations
and Warranties:
The
Company represents and warrants to, and agrees with, each Underwriter
that:
(a) The
Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (the file number of which is set forth
in
Schedule I hereto), for the registration of the Registered Certificates under
the Securities Act of 1933, as amended (the “1933 Act”), which registration
statement has become effective and copies of which have heretofore been
delivered to you. Such registration statement, as amended as of the date hereof,
meets the requirements set forth in Rule 415(a)(1)(vii) under the 1933 Act
and
complies in all other material respects with the 1933 Act and the rules and
regulations thereunder. The Company proposes to file with the Commission
pursuant to Rule 424 under the 1933 Act a supplement to the form of prospectus
included in such registration statement relating to the Registered Certificates
and the plan of distribution thereof, and has previously advised you of all
further information (financial and other) with respect to the Certificates
and
the Mortgage Pool to be set forth therein. Such registration statement,
including the exhibits thereto, as amended as of the date hereof, is hereinafter
called the “Registration Statement”; the prospectus included in the Registration
Statement after the Registration Statement, as amended, became effective, or
as
subsequently filed with the Commission pursuant to Rule 424 under the 1933
Act,
is hereinafter called the “Basic Prospectus”; the form of prospectus
supplemented by the supplement to the form of prospectus relating to the
Registered Certificates, is hereinafter called the “Prospectus Supplement” in
the form in which it shall be first filed with the Commission pursuant to Rule
424 (including the Basic Prospectus) is hereinafter called a “Final Prospectus.”
The free writing prospectus dated December 7, 2006, that has heretofore been
filed pursuant to Rule 433, is hereinafter called the “Pricing Free Writing
Prospectus”. The Company will file with the Commission within four days of the
issuance of the Registered Certificates a report on Form 8-K setting forth
specific information concerning the Registered Certificates and the Mortgage
Pool to the extent that such information is not set forth in the Final
Prospectus.
(b) As
of the
date hereof, when the Final Prospectus is first filed pursuant to Rule 424
under
the 1933 Act, when, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective, when any supplement
to the Final Prospectus is filed with the Commission, and at the Closing Date,
(i) the Registration Statement, as amended as of any such time, the Final
Prospectus, as amended or supplemented as of any such time and the Pricing
Free
Writing Prospectus as of the date hereof comply and will comply in all material
respects with the applicable requirements of the 1933 Act and the rules and
regulations thereunder, (ii) the Registration Statement, as amended as of any
such time, does not and will not contain any untrue statement of material fact
and does not and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading,
and
(iii) the Final Prospectus, as amended or supplemented as of any such time
and
the Pricing Free Writing Prospectus as of the date hereof, do not and will
not
contain any untrue statement of a material fact and do not and will not omit
to
state a material fact necessary to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided,
however,
that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, the Pricing Free
Writing Prospectus or Final Prospectus or any amendment thereof or supplement
thereto in reliance upon and in conformity with the information furnished in
writing to the Company by or on behalf of any Underwriter through the
Representative specifically for use in connection with the preparation of the
Registration Statement and the Final Prospectus as set forth in Exhibit A hereto
(the “Underwriters’ Information”).
(c) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware with full power and
authority (corporate and other) to own its properties and conduct its business
as now conducted by it and to enter into and perform its obligations under
(i)
this Agreement, (ii) the
Assignment and Recognition Agreement, dated as of December 29, 2006 (the
“National City ARA”), between the Seller as assignor (the “Assignor”), the
Depositor as assignee (the “Assignee”) and National City Mortgage Co., the
Assignment and Recognition Agreement, dated as of December 29, 2006 (the “New
Century ARA”), between the Seller as assignor (the “Assignor”), the Depositor as
assignee (the “Assignee”) and NC
Capital Corporation,
the
Assignment and Recognition Agreement, dated as of December 29, 2006 (the “WMC
ARA”), between the Seller as assignor (the “Assignor”), the Depositor as
assignee (the “Assignee”) and WMC Mortgage Corp., the Assignment and Recognition
Agreement, dated as of December 29, 2006 (the “▇▇▇▇▇ Fargo ARA”; together with
the National City ARA, New Century ARA and WMC ARA the “Assignment and
Recognition Agreements), between the Seller as assignor (the “Assignor”), the
Depositor as assignee (the “Assignee”) and ▇▇▇▇▇ Fargo Bank, N.A. and
the
Mortgage Loan Purchase Agreement, dated as of December 8, 2006, between the
Seller and the Depositor and (iii) the Pooling and Servicing Agreement; and
the
Company has received no notice of proceedings relating to the revocation or
modification of any license, certificate, authority or permit applicable to
its
owning such properties or conducting such business which singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the conduct of the business, operations,
financial condition or income of the Company.
(d) As
of the
date hereof, when the Pricing Free Writing Prospectus and the Final Prospectus
is first filed pursuant to Rule 433 and Rule 424, respectively under the 1933
Act, as applicable, when, prior to the Closing Date (as hereinafter defined),
any amendment to the Registration Statement becomes effective, when any
supplement to the Final Prospectus is filed with the Commission, and at the
Closing Date, there has not and will not have been (i) any request by the
Commission for any further amendment of the Registration Statement, the Final
Prospectus or for any additional information, (ii) any issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
or (iii) any notification with respect to the suspension of the qualification
of
the Registered Certificates for sale in any jurisdiction or the initiation
or
threatening of any proceeding for such purpose.
(e) This
Agreement, the Mortgage Loan Purchase Agreement and the Assignment and
Recognition Agreements have been, and the Pooling and Servicing Agreement when
executed and delivered as contemplated hereby and thereby will have been, duly
authorized, executed and delivered by the Company and each constitutes, or
will
constitute when so executed and delivered, a legal, valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors, (ii) general principles
of
equity, whether enforcement is sought in a proceeding in equity or at law and
(iii) public policy considerations underlying the securities laws, to the extent
that such public policy considerations limit the enforceability of the
provisions of this Agreement that purport to provide indemnification from
securities law liabilities.
(f) The
Certificates and the Pooling and Servicing Agreement will conform in all
material respects to the description thereof contained in the Pricing Free
Writing Prospectus and the Final Prospectus, and the Certificates, when duly
and
validly authorized, executed, authenticated and delivered in accordance with
the
Pooling and Servicing Agreement and paid for by the Underwriters as provided
herein, will be entitled to the benefits of the Pooling and Servicing Agreement.
On the Closing Date, the Pooling and Servicing Agreement will be effective
to
establish the Trust Fund as a valid trust under the laws of the State of New
York.
(g) As
of the
Cut-off Date, the Mortgage Loans will meet the criteria for selection described
in the Pricing Free Writing Prospectus and the Final Prospectus and will conform
to the descriptions thereof contained in the Pricing Free Writing Prospectus
and
the Final Prospectus.
(h) Neither
the issuance and sale of the Certificates, nor the execution and delivery by
the
Company of this Agreement, the Mortgage Loan Purchase Agreement, the Assignment
and Recognition Agreements or the Pooling and Servicing Agreement, nor the
consummation by the Company of any of the transactions herein or therein
contemplated, nor compliance by the Company with the provisions hereof or
thereof, will conflict with or result in a breach of any term or provision
of
the certificate of incorporation or by-laws of the Company or conflict with,
result in a breach, violation or acceleration of or constitute a default under,
the terms of any indenture or other agreement or instrument to which the Company
or any of its affiliates is a party or by which it or any of them is bound,
or
any statute, order or regulation applicable to the Company or any of its
affiliates of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Company or any of its affiliates. Neither
the
Company nor any of its affiliates is a party to, bound by or in breach or
violation of any indenture or other agreement or instrument, or subject to
or in
violation of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it, which
materially and adversely affects, or may in the future materially and adversely
affect, (i) validity or enforceability of, or the ability of the Company to
perform its obligations under, this Agreement, the Mortgage Loan Purchase
Agreement, the Assignment and Recognition Agreements or the Pooling and
Servicing Agreement or (ii) the business, operations, financial conditions,
properties or assets of the Company.
(i) Except
as
disclosed in the Pricing Free Writing Prospectus and the Final Prospectus,
there
are no actions or proceedings against, or investigations of, the Company
pending, or, to the knowledge of the Company, threatened, before any court,
administrative agency or other tribunal (i) asserting the invalidity of this
Agreement, the Mortgage Loan Purchase Agreement, the Assignment and Recognition
Agreements, the Pooling and Servicing Agreement or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation of
any
of the transactions contemplated by this Agreement, the Mortgage Loan Purchase
Agreement, the Assignment and Recognition Agreements or the Pooling and
Servicing Agreement, (iii) that might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement, the Mortgage Loan Purchase Agreement, the
Assignment and Recognition Agreements, the Pooling and Servicing Agreement
or
the Certificates, or (iv) seeking to affect adversely the federal income tax
attributes of the Certificates as described in the Final
Prospectus.
(j) There
has
not been any material adverse change in the business, operations, financial
condition, properties or assets of the Company since September 30,
2006.
(k) Any
taxes, fees and other governmental charges payable by the Company in connection
with the execution, delivery and issuance of this Agreement, the Mortgage Loan
Purchase Agreement, the Assignment and Recognition Agreements and the Pooling
and Servicing Agreement or the execution, delivery and sale or transfer of
the
Certificates have been or will be paid at or prior to the Closing
Date.
(l) The
Company is not, and the issuance and sale of the Certificates in the manner
contemplated by the Pricing Free Writing Prospectus or the Final Prospectus
will
not cause the Company to be, subject to registration or regulation as an
investment company or affiliate of an investment company under the Investment
Company Act of 1940, as amended (the “Investment Company Act”).
(m) The
transfer of the Mortgage Loans to the Trust Fund at the Closing Date will be
treated by the Company for financial accounting and reporting purposes as a
sale
of assets and not as a pledge of assets to secure debt.
(n) As
of the
Effective Date and as of the date of the Contract of Sale, the Company is not
an
“ineligible issuer” as defined in Rule 405 under the 1933 Act.
2. Purchase
and Sale.
Subject
to the terms and conditions and in reliance upon the representations and
warranties set forth herein, the Company agrees to sell to each Underwriter,
and
each Underwriter agrees, severally and not jointly, to purchase from the Company
on the Closing Date, at the applicable purchase price set forth in Schedule
I
hereto, the Certificates set forth opposite such Underwriter’s name in Schedule
II hereto.
3. Delivery
and Payment.
Delivery of and payment for the Registered Certificates shall be made in the
manner, on the date and at the time specified in Schedule I hereto (or such
later date not later than seven business days after such specified date as
the
Representative shall designate), which date and time may be postponed by
agreement between the Representative and the Company or as provided in this
Agreement (such date and time of delivery and payment for the Certificates
being
herein called the “Closing Date”). Delivery of the Registered Certificates, as
set forth on Schedule I hereto, shall be made to the Representative for the
respective accounts of the several Underwriters against payment in same day
Federal funds by the several Underwriters of the applicable purchase price.
The
Registered Certificates shall be registered in such names and in such authorized
denominations as the Representative may request not less than three full
business days in advance of the Closing Date.
The
Company agrees to have the Certificates available for inspection, checking
and
packaging by the Representative in New York, New York, not later than 1:00
p.m.
New York time on the business day prior to the Closing Date.
4. Offering
by Underwriters.
(a) It
is
understood that the several Underwriters propose to offer the Certificates
that
are Registered Certificates for sale to the public as set forth in the Final
Prospectus.
(b) Each
Underwriter severally covenants and agrees with the Company as to itself
that:
(i) Prior
to
entering into any Contract of Sale, the Underwriter shall convey the Pricing
Free Writing Prospectus to each prospective investor.
(ii) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Securities Act or access thereto is made available pursuant to
Rule
173 of the Securities Act, the Underwriter shall not convey or deliver any
written communication to any person in connection with the initial offering
of
the Certificates, unless such written communication (1) is made in reliance
on
Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying
the
requirements of Rule 430B under the Securities Act or (3) is a Free Writing
Prospectus.
(iii) An
Underwriter may convey a Preliminary Term Sheet to a potential investor prior
to
entering into a Contract of Sale with such investor; provided, however, that
(x)
such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has complied with paragraph (i) above prior to such
Contract of Sale, (y) such Underwriter shall deliver a copy of the proposed
Preliminary Term Sheet to the Depositor and its counsel prior to the anticipated
first use and shall not convey any such Preliminary Term Sheet to which the
Depositor or its counsel reasonably objects.
(iv) An
Underwriter may convey Computational Materials (x) to a potential investor
prior
to entering into a Contract of Sale with such investor; provided, however,
that
(A) such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has complied with paragraph (i) above prior to such
Contract of Sale and (B) such Computational Materials shall not be disseminated
in a manner reasonably designed to lead to its broad unrestricted dissemination;
provided, however, that if such Computational Materials are disseminated in
a
manner reasonably designed to lead to its broad unrestricted dissemination,
such
Underwriter shall file with the Commission such Computational Materials, and
(y)
to an investor after a Contract of Sale, provided that the Underwriter has
complied with paragraph (i) above in connection with such Contract of Sale.
The
Underwriter shall keep sufficient records of any conveyance of Computational
Materials to potential or actual investors and shall maintain such records
as
required by the Rules and Regulations.
(v) If
an
Underwriter does not furnish a Free Writing Prospectus that is required to
be
filed with the Commission to the Depositor’s counsel prior to the scheduled
print date of the Final Prospectus, such Underwriter will be deemed to have
represented that it did not convey any such Free Writing Prospectus to any
potential investor.
(vi) Each
Free
Writing Prospectus shall contain legends that are substantially similar to
the
following:
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this free writing prospectus relates. Before you
invest, you should read the base prospectus in that registration statement
and
other documents the issuer has filed with the SEC for more complete information
about the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC website at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuer,
any
underwriter or any dealer participating in the offering will arrange to send
you
the base prospectus if you request it by calling toll-free
▇-▇▇▇-▇▇▇-▇▇▇▇.
This
free
writing prospectus is not required to contain all information that is required
to be included in the base prospectus.
The
information in this free writing prospectus is preliminary and is subject to
completion or change.
The
information in this free writing prospectus, if conveyed prior to the time
of
your commitment to purchase, supersedes information contained in any prior
similar free writing prospectus relating to these securities.
This
free
writing prospectus is not an offer to sell or a solicitation of an offer to
buy
these securities in any state where such offer, solicitation or sale is not
permitted.
This
free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the offered certificates referred to in this
free writing prospectus and to solicit an indication of your interest in
purchasing such offered certificates, when, as and if issued. Any such
indication of interest will not constitute a contractual commitment by you
to
purchase any of the offered certificates. You may withdraw your indication
of
interest at any time.
(vii) Any
Computational Materials shall include legends, in addition to those specified
in
paragraph (vi) above, substantially similar to the following:
The
information in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such assumptions are
subject to change.
The
information in this free writing prospectus may reflect parameters, metrics
or
scenarios specifically requested by you. If so, prior to the time of your
commitment to purchase, you should request updated information based on any
parameters, metrics or scenarios specifically required by you.
Neither
the issuer of the securities nor any of its affiliates prepared, provided,
approved or verified any statistical or numerical information presented in
this
free writing prospectus, although that information may be based in part on
loan
level data provided by the issuer or its affiliates.
(viii) Each
Underwriter severally agrees to retain all Free Writing Prospectuses that it
has
used and that are not filed pursuant to this Section 4 for a period of three
years following the initial bona fide offering of the Registered
Certificates.
(c) The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
Computational
Materials:
Any
Free Writing Prospectus prepared by the Underwriter that contains only (i)
information of the type specified in paragraph (5) of the definition of ABS
Informational and Computational Materials in Item 1101(a) of Regulation AB
or
(ii) information that is not Issuer Information.
Contract
of Sale:
The
meaning set forth in Rule 159 under the 1933 Act.
Derived
Information:
Such
information, if any, in any Free Writing Prospectus prepared by any Underwriter
that is not contained in either (i) the Registration Statement, the Base
Prospectus or Final Prospectus or amendments or supplements thereto, taking
into
account information incorporated therein by reference or (ii) any Pool
Information, except to the extent that any omission or alleged omission in
Derived Information results from a Pool Error.
Free
Writing Prospectus:
A
“written communication” within the meaning of Rule 405 under the 1933 Act that
describes the Certificates and/or the Mortgage Loans.
Issuer
Information:
Such
information as defined in Rule 433(h) under the 1933 Act and which shall not
include information that is merely based on or derived from such
information.
Issuer
Free Writing Prospectus:
The
meaning set forth in Rule 405 of the 1933 Act except that (i) Computational
Materials shall not be an Issuer Free Writing Prospectus and (ii) any Free
Writing Prospectus or portion thereof prepared by or on behalf of an Underwriter
than includes any Issuer information that is not approved by the Depositor
for
use therein shall not be an Issuer Free Writing Prospectus.
Preliminary
Term Sheet:
A Free
Writing Prospectus that contains information of the type described in paragraphs
(1) - (3) of the definition of ABS Informational and Computational Materials
in
Item 1101(a) of Regulation AB but which does not included Derived
Information.
(d) (i)
In the
event that any Underwriter or the Company becomes aware that, as of the time
of
the Contract of Sale, any Free Writing Prospectus delivered to a purchaser
of a
Registered Certificate contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which they were made,
not
misleading (such Free Writing Prospectus, a “Defective Free Writing
Prospectus”), the Underwriter or the Company shall notify the other parties to
this Agreement within one business day after discovery.
(ii) The
party
responsible for the information to be corrected, if requested by the Company
or
an Underwriter, as appropriate, shall prepare a Free Writing Prospectus with
Corrective Information that corrects the material misstatement in or omission
from the Defective Free Writing Prospectus (such corrected Free Writing
Prospectus, a “Corrected Free Writing Prospectus”).
(iii) The
Underwriters shall deliver the Corrected Free Writing Prospectus to each
purchaser of a Registered Certificate which received the Defective Free Writing
Prospectus prior to entering into an agreement to purchase any Registered
Certificates.
(iv) The
Underwriters shall notify such purchaser in a prominent fashion that the prior
agreement to purchase Registered Certificates has been terminated, and of such
purchaser’s rights as a result of termination of such agreement.
(v) The
Underwriters shall provide such purchaser with an opportunity to affirmatively
agree to purchase such Registered Certificates on the terms described in the
Corrected Free Writing Prospectus.
(e) Each
Underwriter covenants with the Company that after the Final Prospectus is
available, the Underwriter shall not distribute any written information
concerning the Registered Certificates to a prospective purchaser of Registered
Certificates unless such information is preceded or accompanied by the Final
Prospectus.
5. Agreements.
The
Company agrees with the several Underwriters that:
(a) The
Company will not file any amendment to the Registration Statement or supplement
to (including the supplement relating to the Registered Certificates included
in
the Final Prospectus) the Basic Prospectus, unless the Company has furnished
to
you a copy for your review prior to filing, and will not file or distribute
any
such proposed amendment or supplement to which you reasonably object. Subject
to
the foregoing sentence, the Company will cause the Pricing Free Writing
Prospectus to be transmitted to the Commission for filing pursuant to Rule
433(d) under the 1933 Act and the Final Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424 under the 1933 Act. The Company
will
promptly advise the Representative (i) when the Pricing Free Writing Prospectus
has been filed pursuant to Rule 433(d) and when the Final Prospectus shall
have
been filed or transmitted to the Commission for filing pursuant to Rule 424,
(ii) when any amendment to the Registration Statement shall have become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement or the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registered Certificates for sale in any jurisdiction or the initiation
or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or suspension and, if
issued, to obtain as soon as possible the withdrawal thereof.
(b) If,
at
any time when a prospectus relating to the Registered Certificates is required
to be delivered under the 1933 Act, any event occurs as a result of which any
Final Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, or if it shall be necessary to amend or supplement
the
Final Prospectus to comply with the 1933 Act or the rules and regulations
thereunder, the Company will promptly prepare and file with the Commission,
subject to paragraph (a) of this Section 5, an amendment or supplement that
will
correct such statement or omission or an amendment that will effect such
compliance and, if such amendment or supplement is required to be contained in a
post-effective amendment of the Registration Statement, will use its best
efforts to cause such amendment of the Registration Statement to be made
effective as soon as possible.
(c) The
Company will (i) furnish to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement (including exhibits
thereto) and each amendment thereto that shall become effective on or prior
to
the Closing Date and, so long as delivery of a prospectus by an Underwriter
or
dealer in connection with the Registered Certificates may be required by the
1933 Act, as many copies of each the Pricing Free Writing Prospectus, the Final
Prospectus and any amendments thereof and supplements thereto as the
Representative may reasonably request, and (ii) file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the
Securities Exchange Act of 1934, as amended (the “1934 Act”), subsequent to the
date of the Final Prospectus and for so long as the delivery of a prospectus
by
an Underwriter or dealer in connection with the Registered Certificates may
be
required under the 1933 Act.
(d) The
Company agrees that, so long as the Certificates shall be outstanding, it will
deliver to the Representative the annual statement as to compliance delivered
to
the Trustee pursuant to Section 3.20 of the Pooling and Servicing Agreement
and
the Assessment of Compliance and the Attestation Report furnished to the Trustee
pursuant to Section 3.21 of the Pooling and Servicing Agreement, as soon as
such
statements are furnished to the Company. The Company will request that the
Servicer and the Trustee furnish to the Underwriters any monthly reports
furnished to Certificateholders pursuant to the Pooling and Servicing
Agreement.
(e) The
Company will furnish such information, execute such instruments and take such
action, if any, as may be required to qualify the Registered Certificates for
sale under the laws of such jurisdictions as the Representative may designate
and will maintain such qualifications in effect so long as required for the
distribution of the Registered Certificates; provided, however, that the Company
shall 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.
(f) The
Company will pay, to the extent not paid by the Seller pursuant to the Mortgage
Loan Purchase Agreement and the Assignment and Recognition Agreements, all
costs
and expenses in connection with the transactions herein contemplated, including,
but not limited to: the fees and disbursements of its counsel; the costs and
expenses of printing (or otherwise reproducing) and delivering the Pooling
and
Servicing Agreement and the Certificates; accounting fees and disbursements;
the
costs and expenses in connection with the qualification or exemption of the
Registered Certificates under state securities or blue sky laws, including
filing fees and reasonable fees and disbursements of counsel in connection
with
the preparation of any blue sky survey and in connection with any determination
of the eligibility of the Certificates for investment by institutional investors
and the preparation of any legal investment survey; the expenses of printing
any
such blue sky survey and legal investment survey; the costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including exhibits thereto), the Basic Prospectus, the Pricing Free
Writing Prospectus and the Final Prospectus, the preparation and printing of
this Agreement and the furnishing to the Underwriters of such copies of the
Pricing Free Writing Prospectus and the Final Prospectus as the Representative
may reasonably request, and the fees of each nationally recognized statistical
rating organization identified in the Final Prospectus (individually and
collectively, the “Rating Agency”) as having rated the Certificates. Except as
provided in Section 7 hereof, the Underwriters shall be responsible for paying
all costs and expenses incurred by them in connection with the offering of
the
Certificates.
(g) In
connection with any transaction contemplated by this Agreement, the Depositor
and each of its affiliates maintain customary, arm’s-length business
relationships with the Underwriters and each of its affiliates, and no fiduciary
duty on the part of the Underwriters or any of its affiliates is thereby or
hereby intended or created, and the express disclaimer of any such fiduciary
relationship on the part of the Underwriters and each of its affiliates is
hereby acknowledged and accepted by the Depositor and each of its
affiliates.
(h) To
the
extent that any Underwriter has provided to the Company a Free Writing
Prospectus that such Underwriter has conveyed to a prospective investor, the
Company will file or cause to be filed with the Commission such Free Writing
Prospectus that is either an Issuer Free Writing Prospectus (as defined in
Section 4(c) hereof) or contains Issuer Information as soon as reasonably
practicable after the date of this Agreement, but in any event, not later than
required pursuant to Rules 426 or 433, respectively, of the 1933
Act.
(i) The
Company shall not be required to file (A) any Free Writing Prospectus, if the
information included therein is included or incorporated by reference in a
Free
Writing Prospectus previously filed with the Commission that relates to the
offering of the Certificates, or (B) any Free Writing Prospectus or portion
thereof that contains a description of the Certificates or the offering of
the
Certificates which does not reflect the final terms thereof.
(j) To
the
extent that costs are incurred as a result of an intended trade that has been
broken, the party that is responsible for the information which led to such
broken trade shall bear the costs associated thereto.
6. Conditions
to the Obligations of the Underwriters.
The
obligations of the Underwriters to purchase the Registered Certificates shall
be
subject to the accuracy of the representations and warranties on the part of
the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior to
the
Closing Date and as of the Closing Date, to the accuracy of the statements
of
the Company made in any certificates pursuant to the provisions hereof, to
the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) No
stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and not withdrawn and no proceedings
for that purpose shall have been instituted or threatened; and the Final
Prospectus shall have been filed or transmitted for filing with the Commission
in accordance with Rule 424 under the ▇▇▇▇ ▇▇▇.
(b) The
Company shall have delivered to you a certificate of the Company, signed by
the
President or a vice president or an assistant vice president of the Company
and
dated the Closing Date, to the effect that the signer of such certificate has
carefully examined the Registration Statement, the Pricing Free Writing
Prospectus, the Final Prospectus and this Agreement and that (i) the
representations and warranties of the Company in this Agreement are true and
correct in all material respects at and as of the Closing Date with the same
effect as if made on the Closing Date, (ii) the Company has, in all material
respects, complied with all the agreements and satisfied all the conditions
on
its part that are required by this Agreement to be performed or satisfied at
or
prior to the Closing Date, (iii) no stop order suspending the effectiveness
of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company’s knowledge, threatened, (iv) nothing
has come to the attention of such officer that would lead such officer to
believe that any information provided by the Company to the Underwriters for
use
in any Free Writing Prospectus or the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary
in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (v) subsequent to the respective dates
as of which information is given in the Final Prospectus, there has not been
any
material adverse change in the general affairs, capitalization, financial
condition or results of operations of the Company.
(c) The
Underwriters shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ llp,
counsel
for the Company and the Seller, a favorable opinion, dated the Closing Date
and
satisfactory in form and substance to counsel for the Underwriters.
(d) The
Representative shall have received from Deloitte & Touche, certified public
accountants, two letters, one dated the date hereof and one dated the date
of
the Pricing Free Writing Prospectus and satisfactory in form and substance
to
the Representative and counsel for the Underwriters, to the effect that they
have performed certain specified procedures as a result of which they determined
that certain information of an accounting, financial or statistical nature
set
forth in the Pricing Free Writing Prospectus and the Final Prospectus under
the
captions “Summary of Prospectus Supplement—The Mortgage Loans,” “Risk Factors”
(to the extent of information regarding the Mortgage Loans therein), “The
Mortgage Pool”, “Yield on the Certificates” and “Description of the
Certificates” agrees with the records of the Seller.
(e) The
Certificates shall have been given the ratings set forth in Schedule I hereto
by
the Rating Agency.
(f) The
Representative shall have received, from counsel for the Trustee, a favorable
opinion, dated the Closing Date, and in form and substance satisfactory to
the
Representative and its counsel, to the effect that the Pooling and Servicing
Agreement has been duly authorized, executed and delivered by the Trustee and
constitutes the legal, valid and binding agreement of the Trustee, enforceable
in accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors rights in general and by general principles of equity,
regardless of whether such enforcement is considered in a proceeding in equity
or at law, and as to such other matters as may be agreed upon by the Trustee
and
the Representative.
(g) The
Representative shall have received from the Seller, in form and substance
satisfactory to counsel for the Underwriters:
(i) An
officer’s certificate stating that on the Closing Date the representations and
warranties of the Seller under the Mortgage Loan Purchase Agreement and the
Assignment and Recognition Agreements will be true and correct and no event
has
occurred that would constitute a default thereunder; and
(ii) An
officer’s certificate relating to the Mortgage Loan Purchase Agreement, the
Assignment and Recognition Agreements and the obligations of the Seller
thereunder, as Seller or otherwise, together with copies of the certificate
of
incorporation and by-laws of the Seller and a certificate of good standing
of
the Seller under the laws of the State of New York;
(h) The
Representative shall have received from the Servicer, in form and substance
satisfactory to counsel for the Underwriters:
(i) An
officer’s certificate stating that on the Closing Date the representations and
warranties of the Servicer contained in the Pooling and Servicing Agreement
will
be true and correct and no event has occurred with respect to the Servicer
that
would constitute an Event of Default thereunder; and
(ii) An
officer’s certificate relating to the Pooling and Servicing Agreement and the
obligations of the Servicer thereunder, as Servicer or otherwise, and attached
thereto the Articles of Association of the Servicer, together with copies of
the
charter and by-laws of the Servicer and a certificate of good standing of the
Servicer issued by the Office of the Comptroller of the Currency of the United
States of America.
(i) The
Representative shall have received from counsel to the Servicer, a favorable
opinion, dated the Closing Date and satisfactory in form and substance to
counsel for the Underwriters.
(j) The
Underwriters shall have received copies of any opinions of counsel to the
Company, the Seller and the Servicer supplied to the Rating Agency or the
Trustee relating to certain matters with respect to the Certificates. Any such
opinions shall be dated the Closing Date and addressed to the Underwriters
or
accompanied by the reliance letters to the Underwriters or shall state that
the
Underwriters may rely upon them.
(k) All
proceedings in connection with the transactions contemplated by this Agreement
and all documents incident hereto shall be satisfactory in form and substance
to
the Representative and counsel for the Underwriters, and the Representative
and
counsel for the Underwriters shall have received such other information,
certificates and documents as they may reasonably request.
(l) All
documents required under the Mortgage Loan Purchase Agreement and the Assignment
and Recognition Agreements have been provided to the appropriate
parties.
(m) The
Representative shall have received, from counsel for the Paying Agent, a
favorable opinion, dated the Closing Date, and in form and substance
satisfactory to the Representative and its counsel, to the effect that the
Pooling and Servicing Agreement has been duly authorized, executed and delivered
by the Paying Agent and constitutes the legal, valid and binding agreement
of
the Paying Agent, enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other
similar laws affecting the enforcement of creditors rights in general and by
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law, and as to such other matters
as
may be agreed upon by the Paying Agent and the Representative.
(n) The
Cap
Contract shall have been delivered.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled in
all
material respects when and as provided in this Agreement, if the Company is
in
breach of any covenants or agreements contained herein or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
in
all material respects reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representative. Notice of such cancellation
shall be given to the Company in writing, or by telephone or telegraph confirmed
in writing.
7. Reimbursement
of Underwriters Expenses.
If the
sale to the Underwriters of the Registered Certificates as provided for herein
is not consummated because any condition to the obligations of the Underwriters
set forth in Section 6 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provisions hereof, other than by reason of default by the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses, including reasonable fees and disbursements
of
counsel, that shall have been incurred by the Underwriters in connection with
the proposed purchase and sale of the Registered Certificates.
8. Indemnification
and Contribution.
The
Company agrees with the several Underwriters that:
(a) The
Company will indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter, and each person who controls
any Underwriter within the meaning of either the 1933 Act or the 1934 Act
against any and all losses, claims, damages or liabilities, joint or several,
to
which they or any of them may become subject under the 1933 Act, the 1934 Act
or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any static pool information regarding
previously securitized pools of the Sponsor or any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
for
the registration of the Registered Certificates as originally filed or in any
amendment thereof, or in the Basic Prospectus, the Pricing Free Writing
Prospectus or Final Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission
to
state therein a material fact required to be stated therein or necessary to
make
the statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein (i) in reliance upon and in conformity with any Underwriter’s
Information or (ii) any Derived Information, except to the extent that any
untrue statement or alleged untrue statement or omission therein results (or
is
alleged to have resulted) from an error or material omission in the information
either in the Pricing Free Writing Prospectus or the Final Prospectus for which
the Company is responsible or concerning the characteristics of the Mortgage
Loans furnished to the Underwriters for use in the preparation of any Free
Writing Prospectus (any such information, the “Pool Information”), which error
was not superseded or corrected by the delivery to the Underwriters of corrected
written or electronic information, or for which the Company provided written
notice of such error to the Underwriters prior to the first Contract of Sale
(any such uncorrected Pool Information, a “Pool Error”). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each
Underwriter severally will indemnify and hold harmless the Company, each of
its
directors, each of its officers who signs the Registration Statement, and each
person, if any, who controls the Company within the meaning of either the 1933
Act or the 1934 Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to (i) Derived Information
of such Underwriter or (ii) the Underwriter’s Information of such Underwriter.
This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have.
(c) Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph 8(a) or 8(b) above unless and to the extent it did
not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will not, in
any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph 8(a)
or
8(b) above. The indemnifying party shall be entitled to appoint counsel of
the
indemnifying party’s choice at the indemnifying party’s expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees
and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party’s election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i)
the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual
or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of
such action or (iv) the indemnifying party shall authorize the indemnified
party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In
order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for in paragraph (a) of this Section 8 is due in
accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company
and
the Underwriters shall contribute to the aggregate losses, claims, damages
and
liabilities (including legal and other expenses reasonably incurred in
connection with investigating or defending same) (collectively, “Losses”) to
which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Certificates. If the
allocation provided by the immediately preceding sentence is unavailable for
any
reason, the Company and the Underwriters shall contribute in such proportion
as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Underwriters in connection with the statements
or
omissions that resulted in such Losses as well as any other relevant equitable
consideration. Benefits received by the Company shall be deemed to be equal
to
the total net proceeds from the offering (before deducting expenses) and
benefits received by an Underwriter shall be deemed to be equal to 0.25% of
the
aggregate initial principal amount of the Certificates purchased by such
Underwriter. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to the information provided by
the
Company or the Underwriters. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this paragraph 8(d), in no case shall any Underwriter except as may be provided
in any agreement among Underwriters relating to the offering of the Certificates
be responsible for any amount in excess of 0.25% of the aggregate initial
principal amount of the Certificates purchased by such Underwriter and, no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was
not guilty of such fraudulent misrepresentation. For purposes of this Section
8,
each person, if any, who controls an Underwriter within the meaning of the
1933
Act or the 1934 Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter,
and
each person, if any, who controls the Company within the meaning of either
the
1933 Act or the 1934 Act, each officer of the Company who shall have signed
the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph 8(d).
(e) For
purposes hereof, as to each Underwriter, the term “Derived Information” means
such information, if any, in the Computational Materials that is not contained
in either (i) the Basic Prospectus, the Final Prospectus or the Registration
Statement or amendments or supplements thereto, taking into account information
incorporated therein by reference (other than information incorporated by
reference from the Computational Materials) or (ii) any Pool Information, except
to the extent that any omission or alleged omission in Derived Information
results from a Pool Error.
9. Seller
Obligations.
[Reserved].
10. Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Representative, by notice given to the Company prior to delivery of and payment
for all Registered Certificates if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited,
or minimum prices shall have been established in such Exchange, (ii) a banking
moratorium shall have been declared by either federal or New York State
authorities or (iii) there shall have occurred any outbreak or material
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis, the effect of which on the
financial markets is such as to make it, in the judgment of the Representative,
impracticable to market the Certificates.
11. Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and the Underwriters 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 any Underwriter or the Company
or
any of the officers, directors or controlling persons referred to in Section
8
hereof, and will survive delivery of and payment for the Registered
Certificates. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Representative, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Managing Director, the Financial Institutions Department; or, if
sent
to the Company, will be mailed, delivered or telegraphed and confirmed to it
at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary.
13. Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers and directors and controlling
persons referred to in Section 8 hereof, and their successors and assigns,
and
no other person will have any right or obligation hereunder.
14. Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York. This Agreement may be executed in any number of counterparts,
each of which shall for all purposes be deemed to be an original and all of
which shall together constitute but one and the same instrument.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us a counterpart hereof, whereupon this letter and your acceptance
shall represent a binding agreement among the Company and the several
Underwriters.
|
Very
truly yours,
CITIGROUP
MORTGAGE LOAN TRUST INC.
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
Asst. Vice President
|
|
|
The
foregoing Agreement is hereby confirmed
and
accepted as of the date first above written.
CITIGROUP
GLOBAL MARKETS INC.
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Authorized Agent
For
itself and the other Underwriters named
in
Schedule II to the foregoing Agreement.
|
|
SCHEDULE
I
Underwriting
Agreement, dated December 8, 2006.
As
used
in this Agreement, the term “Registration Statement” refers to registration
statement No. 333-131136
filed by the Company on Form S-3 and declared effective on June 29,
2006,
as
amended to date. The term “Basic Prospectus” refers to the form of Prospectus
filed with the Commission pursuant to Rule 424 under the 1933 Act after the
Registration Statement became effective.
Title
and
Description of Certificates: Citigroup Mortgage Loan Trust Inc., Asset-Backed
Pass-Through Certificates, Series 2006-HE3.
|
Class
|
Initial
Certificate Principal Balance(1)
|
Pass-Through
Rate
|
▇▇▇▇▇’▇
Rating
|
S&P
Rating
|
DBRS
|
|
A-2A
|
$
189,942,000.00
|
Variable(2)
|
Aaa
|
AAA
|
AAA
|
|
A-2B
|
$
76,787,000.00
|
Variable(2)
|
Aaa
|
AAA
|
AAA
|
|
A-2C
|
$
58,159,000.00
|
Variable(2)
|
Aaa
|
AAA
|
AAA
|
|
A-2D
|
$
41,254,000.00
|
Variable(2)
|
Aaa
|
AAA
|
AAA
|
|
M-1
|
$
26,969,000.00
|
Variable(2)
|
Aa1
|
AA+
|
AA
(high)
|
|
M-2
|
$
25,491,000.00
|
Variable(2)
|
Aa2
|
AA
|
AA
|
|
M-3
|
$
14,039,000.00
|
Variable(2)
|
Aa3
|
AA-
|
AA
(low)
|
|
M-4
|
$
13,300,000.00
|
Variable(2)
|
A1
|
A+
|
A
(high)
|
|
M-5
|
$
11,822,000.00
|
Variable(2)
|
A2
|
A
|
A
|
|
M-6
|
$
9,975,000.00
|
Variable(2)
|
A3
|
A-
|
A
(low)
|
|
M-7
|
$
9,606,000.00
|
Variable(2)
|
Baa1
|
BBB+
|
BBB
(high)
|
|
M-8
|
$
5,541,000.00
|
Variable(2)
|
Baa2
|
BBB
|
BBB
|
|
M-9
|
$
9,606,000.00
|
Variable(2)
|
Baa3
|
BBB-
|
BBB
(low)
|
(1)
Approximate.
Subject to a variance of +
5%
(2)
The
pass-through rate on this class is based on one-month LIBOR plus an applicable
certificate margin, subject to a rate cap as described in the prospectus
supplement under “Description of the Certificates—Pass-Through
Rates.”
(3)
The
pass-through rate on this class is the indicated fixed-rate, which is subject
to
increase and a rate cap as described in the prospectus supplement under
“Description of the Certificates- Pass-Through Rates.”
The
aggregate purchase price for the Registered Certificates will be equal to
approximately 99.90% of the aggregate initial Certificate Principal Balances
of
the Registered Certificates as of the Cut-off Date.
|
Closing
Time, Date and Location: 10:00 AM. on December 29, 2006 at the offices
of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
|
Issuance
and Delivery of Certificates: The Registered Certificates will be delivered
at
closing in book-entry form in such names and denominations as the Representative
may direct in accordance with the Underwriting Agreement.
SCHEDULE
II
|
Underwriter
|
Principal
Amount
(1)
|
|||
|
Citigroup
Global Markets Inc.
|
||||
|
A-2A
|
$
|
189,942,000.00
|
||
|
A-2B
|
$
|
76,787,000.00
|
||
|
A-2C
|
$
|
58,159,000.00
|
||
|
A-2D
|
$
|
41,254,000.00
|
||
|
M-1
|
$
|
26,969,000.00
|
||
|
M-2
|
$
|
25,491,000.00
|
||
|
M-3
|
$
|
14,039,000.00
|
||
|
M-4
|
$
|
13,300,000.00
|
||
|
M-5
|
$
|
11,822,000.00
|
||
|
M-6
|
$
|
9,975,000.00
|
||
|
M-7
|
$
|
9,606,000.00
|
||
|
M-8
|
$
|
5,541,000.00
|
||
|
M-9
|
$
|
9,606,000.00
|
||
(1)
Approximate.
.
EXHIBIT
A
Underwriter’s
Information
Prospectus
Supplement dated December 8, 2006 (To Prospectus dated December 13,
2006)
$491,684,000
(Approximate)
Issuing
Entity
Asset-Backed
Pass-Through Certificates, Series 2006-HE3
Citigroup
Mortgage Loan Trust Inc.
Depositor
Citigroup
Global Markets Realty Corp.
Sponsor
▇▇▇▇▇
Fargo Bank, N.A.
JPMorgan
Chase Bank, National Association
Ocwen
Loan Servicing, LLC
Countrywide
Home Loans Servicing LP
Servicers
Citibank,
N.A.
Trust
Administrator
|
You
should consider carefully the risk factors beginning on page S-13
in this
prospectus supplement and page 5 in the prospectus.
This
prospectus supplement may be used to offer and sell the offered
certificates only if accompanied by the prospectus.
The
certificates represent obligations of the issuing entity only and
do not
represent an interest in or obligation of the depositor, the servicers
or
the sponsor, or any of their affiliates. This prospectus supplement
may be
used to offer and sell the certificates only if accompanied by the
prospectus.
|
Offered
Certificates The
trust
created for the Series 2006-HE3 certificates will hold a pool of one- to
four-family residential first lien and second lien, fixed-rate and
adjustable-rate mortgage loans. The mortgage loans will be segregated into
two
groups, one consisting of mortgage loans with principal balances at origination
that conform to ▇▇▇▇▇▇ ▇▇▇ loan limits and one consisting of mortgage loans
with
principal balances at origination that may or may not conform to ▇▇▇▇▇▇ Mae
loan
limits. The trust will issue thirteen classes of offered certificates. You
can
find a list of these classes, together with their initial certificate principal
balances and pass-through rates, on page S-5 of this prospectus supplement.
Credit enhancement for the offered certificates will be provided in the form
of
excess interest, subordination, overcollateralization and a primary mortgage
insurance policy. The offered certificates will also have the benefit of certain
payments made pursuant to a cap contract. The offered certificates will be
entitled to monthly distributions beginning in January 2007.
Underwriting
Citigroup
Global Markets Inc., as underwriter, will offer to the public the offered
certificates at varying prices to be determined at the time of sale.
The
proceeds to the depositor from the sale of the offered certificates, before
deducting expenses, will be approximately 99.90% of the aggregate initial
certificate principal balance of the offered certificates.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of the offered certificates or determined that this
prospectus supplement or the prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The
Attorney General of the State of New York has not passed on or endorsed the
merits of this offering. Any representation to the contrary is
unlawful.
Citigroup
Rate
Carryover Amounts) also will be treated as “qualified mortgages” under Section
860G(a)(3) of the Code. See “Federal Income Tax
Consequences—REMICs—Characterization of Investments in REMIC Certificates” in
the prospectus.
It
is not
anticipated that the REMIC will engage in any transactions that would subject
it
to the prohibited transactions tax as defined in Section 860F(a)(2) of the
Code,
the contributions tax as defined in Section 860G(d) of the Code or the tax
on
net income from foreclosure property as defined in Section 860G(c) of the Code.
However, in the event that any such tax is imposed on the REMIC, the tax will
be
borne (i) by the trustee, if the trustee has breached its obligations with
respect to REMIC compliance under the pooling and servicing agreement, (ii)
by
the trust administrator, if the trust administrator has breached its obligations
with respect to REMIC compliance under the pooling and servicing agreement,
(iii) by the servicers, if the related servicer has breached it’s obligations
with respect to REMIC compliance under the pooling and servicing agreement,
or
(iv) otherwise by the trust, with a resulting reduction in amounts otherwise
distributable to holders of the certificates. See “Description of the
Securities—General” and “Federal Income Tax Consequences —REMICs—Prohibited
Transactions Tax and Other Taxes” in the prospectus.
The
responsibility for filing annual federal information returns and other reports
will be generally borne by the trust administrator. See “Federal Income Tax
Consequences—REMICs—Reporting and Other Administrative Matters” in the
prospectus.
For
further information regarding the federal income tax consequences of investing
in the offered certificates, see “Federal Income Tax Consequences—REMICs” in the
prospectus.
METHOD
OF DISTRIBUTION
Subject
to the terms and conditions set forth in the underwriting agreement, dated
December 8, 2006, the depositor has agreed to sell, and the underwriter has
agreed to purchase the offered certificates. The underwriter is obligated to
purchase all offered certificates offered hereby if it purchases any. The
underwriter is an affiliate of the depositor.
Distribution
of the offered certificates will be made from time to time in negotiated
transactions or otherwise at varying prices to be determined at the time of
sale. Proceeds
to the depositor from the sale of the offered certificates, before deducting
expenses payable by the depositor, will be approximately 100.00% of the
aggregate initial Certificate Principal Balance of the offered
certificates.
In
connection with the purchase and sale of the offered certificates, the
underwriter may be deemed to have received compensation from the depositor
in
the form of underwriting discounts.
The
offered certificates are offered subject to receipt and acceptance by the
underwriter, to prior sale and to the underwriter’s right to reject any order in
whole or in part and to withdraw, cancel or modify the offer without notice.
It
is expected that delivery of the offered certificates will be made through
the
facilities of DTC, Clearstream and Euroclear on or about the closing date.
The
offered certificates will be offered in Europe and the United States of
America.
The
underwriting agreement provides that the depositor will indemnify the
underwriter against certain civil liabilities, including liabilities under
the
Securities Act of 1933, as amended, or will contribute to payments the
underwriter may be required to make in respect thereof.
SECONDARY
MARKET
There
is
currently no secondary market for the offered certificates and there can be
no
assurance that a secondary market for the offered certificates will develop
or,
if it does develop, that it will continue. The
underwriter intends to establish a market in the offered certificates, but
is
not obligated to do so.
The
primary source of information available to investors concerning the offered
certificates will be the monthly statements discussed in this prospectus
supplement under “Description of the Certificates—Reports to
Certificateholders,”