EXHIBIT 5.1, 8.1, 23.1
[Letterhead of Xxxxxxx Xxxxxxxx & Xxxx LLP]
September 9, 2004
Citigroup Global Markets Inc.,
as representative of the several underwriters
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Opinion: Underwriting Agreement:
Xxxxxxxxxx Mortgage Loan Trust, Series 2004-NC2
Asset Backed Pass-Through Certificates
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Ladies and Gentlemen:
We have acted as counsel to Citigroup Mortgage Loan Trust Inc. (the
"Depositor") and Citigroup Global Markets Inc. (the "Underwriter") in connection
with (i) the Mortgage Loan Purchase Agreement, dated September 3, 2004 (the
"Seller Sale Agreement"), among the Depositor, Xxxxxxxxxx Asset Acceptance
Company (the "Seller") and NC Capital Corporation (the "Responsible Party"),
(ii) the Pooling and Servicing Agreement, dated as of September 1, 2004 (the
"Pooling and Servicing Agreement"), among the Depositor, New Century Mortgage
Corporation (the "Servicer") and Deutsche Bank National Trust Company (the
"Trustee"), and the certificates issued pursuant thereto designated as
Xxxxxxxxxx Mortgage Loan Trust, Series 0000-XX0, Xxxxx Backed Pass-Through
Certificates (the "Certificates"), (iii) the Underwriting Agreement, dated
September 3, 2004 (the "Underwriting Agreement"), between the Depositor and the
Underwriter, (iv) the Prospectus Supplement, dated September 3, 2004 (the
"Prospectus Supplement"), and the Prospectus to which it relates, dated August
25, 2004 (the "Base Prospectus"; together with the Prospectus Supplement, the
"Prospectus"). The Seller Sale Agreement, the Pooling and Servicing Agreement
and the Underwriting Agreement are collectively referred to herein as the
"Agreements." Capitalized terms not defined herein have the meanings assigned to
them in the Agreements.
In rendering this opinion letter, as to relevant factual matters we
have examined the documents described above and such other documents as we have
deemed necessary including, where we have deemed appropriate, representations or
certifications of officers of parties thereto or public officials. In rendering
this opinion letter, except for the matters that are specifically addressed in
the opinions expressed below, with your permission we have assumed, and are
relying thereon without independent investigation, (i) the authenticity of all
documents submitted to us as originals or as copies thereof, and the conformity
to the originals of all documents submitted to us as copies, (ii) the necessary
entity formation and continuing existence in the
Xxxxxxxxxx Mortgage Loan Trust, Page 7
Series 2004-NC2
September 9, 2004
jurisdiction of formation, and the necessary licensing and qualification in all
jurisdictions, of all parties to all documents, (iii) the necessary
authorization, execution, delivery and enforceability of all documents, and the
necessary entity power with respect thereto, and (iv) that there is not any
other agreement that modifies or supplements the agreements expressed in any
document to which this opinion letter relates and that renders any of the
opinions expressed below inconsistent with such document as so modified or
supplemented. In rendering this opinion letter, except for the matters that are
specifically addressed in the opinions expressed below, we have made no inquiry,
have conducted no investigation and assume no responsibility with respect to (a)
the accuracy of and compliance by the parties thereto with the representations,
warranties and covenants as to factual matters contained in any document or (b)
the conformity of the underlying assets and related documents to the
requirements of any agreement to which this opinion letter relates.
The opinions expressed below with respect to the enforceability of any
right or obligation under any agreement are subject to (i) general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing and the possible unavailability of specific performance and injunctive
relief, regardless of whether considered in a proceeding in equity or at law,
(ii) the effect of certain laws, regulations and judicial and other decisions
upon the availability and enforceability of certain remedies including the
remedies of specific performance and self-help and provisions purporting to
waive the obligation of good faith, materiality, fair dealing, diligence,
reasonableness or objection to venue or forum, to confer subject matter
jurisdiction on a federal court located within the State of New York to
adjudicate any controversy in any situation in which such court would not have
subject matter jurisdiction, to waive the right to jury trial, to impose a
penalty or forfeiture, to release, exculpate or exempt a party from, to require
indemnification of a party for, liability for its own action or inaction to the
extent that the action or inaction includes negligence, recklessness or willful
or unlawful conduct, to sever any provision of any agreement, to restrict access
to legal or equitable remedies, to establish evidentiary standards, to appoint
any person or entity as the attorney-in-fact of any other person or entity, to
require that any agreement may only be amended, modified or waived in writing,
to provide that all rights or remedies of any party are cumulative and may be
enforced in addition to any other right or remedy, to provide that the election
of a particular remedy does not preclude recourse to one or more remedies, to
provide that the failure to exercise or the delay in exercising rights or
remedies will not operate as a waiver of any such rights or remedies, to waive
rights or remedies which can not be waived as a matter of law, to provide for
set-off unless there is mutuality between the parties or to provide that any
agreement is to be governed by or construed in accordance with the laws of any
jurisdiction other than the State of New York, (iii) bankruptcy, insolvency,
receivership, reorganization, liquidation, voidable preference, fraudulent
conveyance and transfer, moratorium and other similar laws affecting the rights
of creditors or secured parties and (iv) public policy considerations underlying
the securities laws, to the extent that such public policy considerations limit
the enforceability of any provision of any agreement which purports or is
construed to provide indemnification with respect to securities law violations.
We do not express any opinion herein with respect to any law the violation of
which would not have any material adverse effect on the ability of any party to
perform its obligations under any agreement. However, the non-
Xxxxxxxxxx Mortgage Loan Trust, Page 8
Series 2004-NC2
September 9, 2004
enforceability of any such provisions will not, taken as a whole, materially
interfere with the practical realization of the benefits of the rights and
remedies included in any such agreement which is the subject of any opinion
expressed below, except for the considerations referred to in foregoing clause
(iv) and the consequences of any judicial, administrative, procedural or other
delay which may be imposed by, relate to or arise from applicable laws,
equitable principles and interpretations thereof. Wherever we indicate that our
opinion with respect to the existence or absence of facts is based on our
knowledge, our opinion is based solely on the actual present knowledge of the
attorneys in this firm who are directly involved in the representation of
parties to the transactions described herein in connection therewith. In that
regard we have conducted no special or independent investigation of factual
matters in connection with this opinion letter.
In rendering this opinion letter, we do not express any opinion
concerning any law other than the federal laws of the United States including
without limitation the Securities Act of 1933, as amended (the "1933 Act") and
Sections 860A through 860G (the "REMIC Provisions") of the Internal Revenue Code
of 1986, as amended (the "Code") applicable to a real estate mortgage investment
conduit ("REMIC") and applicable regulations thereunder and current judicial and
administrative authority with respect thereto and the laws of the State of New
York. We do not express any opinion herein with respect to any matter not
specifically addressed in the opinions expressed below, including without
limitation (i) any statute, regulation or provision of law of any county,
municipality or other political subdivision or any agency or instrumentality
thereof or (ii) the securities laws of any jurisdiction.
Based upon and subject to the foregoing, it is our opinion that:
1. The Pooling and Servicing Agreement, assuming the necessary
authorization, execution and delivery thereof by the parties
thereto, will be a valid and legally binding agreement under the
laws of the State of New York, enforceable thereunder against the
parties thereto in accordance with its terms.
2. The Certificates, assuming the authorization, execution and
delivery of the related Pooling and Servicing Agreement, the
execution and authentication of such Certificates in accordance
with that Pooling and Servicing Agreement and the delivery
thereof and payment therefor as contemplated in the Registration
Statement and in the prospectus and prospectus supplement
delivered in connection with such Certificates, will be legally
and validly issued and outstanding, fully paid and non-
assessable and entitled to the benefits of that Pooling and
Servicing Agreement.
3. Assuming the accuracy of and compliance with the factual
representations, covenants and other provisions of the Agreements
without any waiver or modification thereof, for United States
federal income tax purposes within the meaning of the Code in
effect on the date hereof, (i) each of REMIC I and REMIC II will
qualify as a REMIC within the meaning of the Code, (ii) the REMIC
I Regular Interests will represent ownership of the "regular
interests" in REMIC I and the Class R-I Interest will constitute
the sole class of "residual interests" in REMIC I, (iii) each
class of Class A Certificates and Mezzanine Certificates
(exclusive of any right of the holder of such
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Series 2004-NC2
September 9, 2004
Certificates to receive payments from the Net WAC Rate Carryover
Reserve Account in respect of the Net WAC Rate Carryover Amount),
the Class CE and Class P Certificates, will represent ownership
of "regular interests" in REMIC II and will generally be treated
as debt instruments of REMIC II, and the Class R-II Interest will
constitute the sole class of "residual interests" in REMIC II and
(iv) the Class R Certificates will evidence ownership of the
Class R-I Interest and Class R-II Interest.
We hereby consent to the filing of this opinion letter as an Exhibit to
the Registration Statement, and to the use of our name in the prospectus and
prospectus supplement included in the Registration Statement under the headings
"Federal Income Tax Consequences" and "Legal Matters," without admitting that we
are "persons" within the meaning of Section 7(a) or 11(a)(4) of the 1933 Act, or
"experts" within the meaning of Section 11 thereof, with respect to any portion
of the Registration Statement.
Very truly yours,
/s/ XXXXXXX XXXXXXXX & XXXX LLP
