MORTGAGE LOAN PURCHASE AGREEMENT
This
is a Mortgage Loan Purchase Agreement (the “Agreement”), dated
February 24, 2006, between Citigroup Mortgage Loan Trust Inc., a Delaware
corporation (the “Purchaser”), CS OT I LLC (the “Seller”) and acknowledged by
Citigroup Global Markets Realty Corp., a New York corporation.
Preliminary
Statement
The
Seller intends to sell the Mortgage Loans (as hereinafter defined) to
the Purchaser on the terms and subject to the conditions set forth in this
Agreement. The Purchaser intends to deposit the Mortgage Loans into a mortgage
pool comprising the trust fund. The Purchaser has established Citigroup Mortgage
Loan Trust 2006-AR1, a Delaware statutory trust (the “Issuer”) pursuant to a
Short Form Trust Agreement, dated as of February 23, 2006, as amended and
restated on February 27, 2006, (the “Trust Agreement”), among the Purchaser,
Wilmington Trust Company (the “Owner Trustee”), CitiMortgage, Inc. (the
“Securities Administrator”) and Citibank, N.A. (“Certificate Registrar” and
“Certificate Paying Agent” as applicable). The Purchaser intends to sell the
Mortgage Loans to the Issuer pursuant to a Servicing Agreement, dated as
of
February 1, 2006 (the “Servicing Agreement”) among the Purchaser, U.S. Bank
National Association, as indenture trustee (the “Indenture Trustee”),
CitiMortgage, Inc. as Master Servicer (the “Master Servicer”) and as Securities
Administrator, and Citibank as Note Registrar, Paying Agent and Authenticating
Agent. The trust fund will be evidenced by a single series of mortgage-backed
notes designated as Series 2006-AR1 (the “Notes”). The Notes will consist of
twenty-nine classes of notes. The Issuer, pursuant to an Indenture, dated
as of
February 27, 2006 (the “Indenture”), among the Purchaser as depositor, the
Securities Administrator, Citibank, N.A. as paying agent, note registrar
and
authenticating agent and the Indenture Trustee, intends to pledge the Mortgage
Loans to the Indenture Trustee and issue and transfer to the Purchaser the
Citigroup Mortgage Loan Trust 2006-AR1, Mortgage-Backed Notes, Series 2006-AR1
and the Certificates issued pursuant to the Trust Agreement (the
“Certificates”). The Master Servicer will master service the Mortgage Loans on
behalf of the Issuer pursuant to the Servicing Agreement. The servicing of
the
Mortgage Loans will be provided by Xxxxx Fargo Bank, N.A. pursuant to the
Xxxxx
Fargo Servicing Agreement as specified in Appendix A to the Indenture which
(other than with respect to certain rights of the Seller against the servicer)
will be assigned to the Issuer on the Closing Date pursuant to the Assignment
Assumption and Recognition Agreement dated as of February 27, 2006 among
Citigroup Global Markets Realty Corp. as assignor, the Indenture Trustee
as
assignee and acknowledged by Xxxxx Fargo Bank,
N.A. The representations and warranties made by the related
Citigroup Global Markets Realty Corp. and the remedies for breach thereof
will
be assigned to the Issuer on the Closing Date pursuant to, and to the extent
provided in, the related Assignment Agreement. Capitalized terms used but
not
defined herein shall have the meanings set forth in the Indenture.
The
parties hereto agree as follows:
SECTION
1. Agreement
to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, on or before February 27, 2006 (the “Closing
Date”), certain adjustable-rate, first lien, prime hybrid residential mortgage
loans (the “Mortgage Loans”)
originated
by Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”, in such capacity,
the “Originator”), having an aggregate principal balance as of the close of
business on February 1, 2006 (the “Cut-off Date”) of $1,569,632,912 (the
“Closing Balance”), after giving effect to all payments due on the Mortgage
Loans on or before the Cut-off Date, whether or not received.
SECTION
2. Mortgage Loan
Schedule. The Purchaser and the Seller have agreed upon
which of the mortgage loans owned by the Seller are to be purchased by the
Purchaser pursuant to this Agreement and the Seller will prepare or cause
to be
prepared on or prior to the Closing Date a final schedule (the “Closing
Schedule”) that together shall describe such Mortgage Loans and set forth all of
the Mortgage Loans to be purchased under this Agreement. The Closing Schedule
will conform to the requirements set forth in this Agreement and to the
definition of “Mortgage Loan Schedule” under the Indenture. The Closing Schedule
shall be used as the Mortgage Loan Schedule under the Indenture and shall
be
prepared by the Seller based on information provided by the
Originator.
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SECTION
3.
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Consideration.
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(a) In
consideration for the Mortgage Loans to be purchased hereunder, the
Purchaser shall, as described in Section 7, pay to or upon the order of the
Seller in immediately available funds an amount (the “Mortgage Loan Purchase
Price”) equal to the net cash proceeds of the sale of the Notes and the
Certificate plus accrued interest.
(b) The
Purchaser or any assignee, transferee or designee of the Purchaser
shall be entitled to all scheduled payments of principal due after the Cut-off
Date, all other payments of principal due and collected after the Cut-off
Date,
and all payments of interest on the Mortgage Loans allocable to the period
after
the Cut-off Date. All scheduled payments of principal and interest due on
or
before the Cut-off Date and collected after the Cut-off Date shall belong
to the
Seller.
(c) Pursuant
to the Indenture, the Purchaser will assign all of its right,
title and interest in and to the Mortgage Loans, together with its rights
under
this Agreement, to the Indenture Trustee for the benefit of the related
Noteholders.
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SECTION
4.
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Transfer
of the Mortgage Loans.
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(a) Possession
of Mortgage Files. The Seller does
hereby sell, transfer, assign, set over and convey to the Purchaser, without
recourse but subject to the terms of this Agreement, all of its right, title
and
interest in, to and under the Mortgage Loans. The contents of each Mortgage
File
not delivered to the Purchaser or to any assignee, transferee or designee
of the
Purchaser on or prior to the Closing Date are and shall be held in trust
by the
Seller for the benefit of the Purchaser or any assignee, transferee or designee
of the Purchaser. Upon the sale of the Mortgage Loans, the ownership of each
Mortgage Note, the related Mortgage and the other contents of the related
Mortgage File is vested in the Purchaser and the ownership of all records
and
documents with respect to the related Mortgage Loan prepared by or that come
into the possession of the Seller on or after the Closing Date shall immediately
vest in the Purchaser and shall be delivered immediately to the Purchaser
or as
otherwise directed by the Purchaser.
(b) Delivery
of Mortgage Loan Documents. The Seller
will, on or prior to the Closing Date, deliver or cause to be delivered to
the
Purchaser or any assignee, transferee or designee of the Purchaser each of
the
following documents for each Mortgage Loan:
(i) the
original Mortgage Note, endorsed in one of the following forms: (i) in the
name
of the Indenture Trustee or (ii) in blank, in each case, with all prior and
intervening endorsements showing a complete chain of endorsement from the
originator to the Person so endorsing to the Indenture Trustee;
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(ii)
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the
original Mortgage with evidence of recording
thereon;
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(iii) an
original
Assignment of the Mortgage in recordable form in blank or to the Indenture
Trustee;
(iv) the
original
recorded Assignment or Assignments of the Mortgage showing a complete chain
of
assignment from the originator to the Person assigning the Mortgage in blank
or
to the Indenture Trustee as contemplated by the immediately preceding clause
(iii);
(v) the
original
of or a copy of each related assumption, modification, consolidation or
extension agreement, with evidence of recording thereon, if any;
(vi) with
respect to any
Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary
Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy
or
certificate;
(vii) the
original mortgagee
title insurance policy or an attorney’s opinion of title where customary;
and
(viii) any
of the following that are
in the possession of the Seller or a document custodian on its behalf: (A)
the
original of or a copy of any security agreement, chattel mortgage or equivalent
document executed in connection with the Mortgage or (B) the original of
or a
copy of any power of attorney, if applicable.
With
respect to a maximum of approximately 5.00% of the Original Mortgage
Loans, by outstanding principal balance of the Original Mortgage Loans as
of the
Cut-off Date, if any original Mortgage Note referred to in Section 4(b)(i)
above
cannot be located, the obligations of the Seller to deliver such documents
shall
be deemed to be satisfied upon delivery to the Securities Administrator (as
designee of the Purchaser) of a photocopy of such Mortgage Note, if available,
with a lost note affidavit. If any of the original Mortgage Notes for which
a
lost note affidavit was delivered to the Securities Administrator is
subsequently located, such original Mortgage Note shall be delivered to the
Securities Administrator within three Business Days.
If
any of the documents referred to in Sections 4(b)(ii), (iii) or (iv)
above has as of the Closing Date been submitted for recording but either
(x) has
not been returned from the applicable public recording office or (y) has
been
lost or such public recording office has retained the original of such document,
the obligations of the Seller to deliver such documents shall be deemed to
be
satisfied upon (1) delivery to the Securities Administrator of a copy of
each
such document certified by the Originator in the case of (x) above or the
applicable public recording office in the case of (y) above to be a true
and
complete copy of the original that was submitted for recording and (2) if
such
copy is certified by the Originator, delivery to the Securities Administrator
promptly upon receipt thereof of either the original or a copy of such document
certified by the applicable public recording office to be a true and complete
copy of the original.
To
the extent not already recorded, the Securities Administrator, at the
expense of the Citigroup Global Markets Realty Corp. shall pursuant to the
Indenture promptly (and in no event later than three months following the
later
of the Closing Date and the date of receipt by the Securities Administrator
of
the recording information for a Mortgage) submit or cause to be submitted
for
recording, at no expense to the Trust Estate or the Securities Administrator,
in
the appropriate public office for real property records, each Assignment
delivered to it pursuant to Sections 4(b)(iii) and (iv) above. In the event
that
any such Assignment is lost or returned unrecorded because of a defect therein,
the Securities Administrator, at the expense of the Citigroup Global Markets
Realty Corp., shall promptly prepare or cause to be prepared a substitute
Assignment or cure or cause to be cured such defect, as the case may be,
and
thereafter cause each such Assignment to be duly recorded. Notwithstanding
the
foregoing, but without limiting the requirement that such Assignments be
in
recordable form, neither the Securities Administrator nor the Indenture Trustee
shall be required to submit or cause to be submitted for recording each
Assignment delivered to it pursuant to Sections 4(b)(iii) and (iv) if such
recordation shall not, as of the Closing Date, be required by the Rating
Agencies, as a condition to their assignment on the Closing Date of their
initial ratings to the Notes, as evidenced by the delivery by the Rating
Agencies of their ratings letters on the Closing Date.
The
Seller shall deliver or cause to be delivered to the Securities
Administrator promptly upon receipt thereof any other original documents
constituting a part of a Mortgage File received with respect to any Mortgage
Loan, including, but not limited to, any original documents evidencing an
assumption, modification, consolidation or extension of any Mortgage Loan.
All
original documents relating to the Mortgage Loans that are not
delivered to the Securities Administrator are and shall be held by or on
behalf
of the Seller, the Servicer, the Purchaser or the Master Servicer, as the
case
may be, in trust for the benefit of the Indenture Trustee on behalf of the
Noteholders. In the event that any such original document is required pursuant
to the terms of this Section to be a part of a Mortgage File, such document
shall be delivered promptly to the Securities Administrator. Any such original
document delivered to or held by the Seller or the Purchaser that is not
required pursuant to the terms of this Section to be a part of a Mortgage
File,
shall be delivered promptly to the related Servicer.
(c) Acceptance
of Mortgage Loans. The documents
delivered pursuant to Section 4(b) hereof shall be reviewed by the Purchaser
or
any assignee, transferee or designee of
the
Purchaser at any time before or after the Closing Date (and with
respect to each document permitted to be delivered after the Closing Date
within
seven days of its delivery) to ascertain that all required documents have
been
executed and received and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule.
(d) Transfer
of Interest in Agreements. The Purchaser
has the right to assign its interest under this Agreement, in whole or in
part,
to the Indenture Trustee, as may be required to effect the purposes of the
Indenture, without the consent of the Seller, and the assignee shall succeed
to
the rights and obligations hereunder of the Purchaser. Any expense reasonably
incurred by or on behalf of the Purchaser or the Indenture Trustee in connection
with enforcing any obligations of the Seller under this Agreement will be
promptly reimbursed by the Seller.
(e) Examination
of Mortgage Files. Prior to the
Closing Date, the Seller shall either (i) deliver in escrow to the Purchaser
or
to any assignee, transferee or designee of the Purchaser, for examination,
the
Mortgage File pertaining to each Mortgage Loan, or (ii) make such Mortgage
Files
available to the Purchaser or to any assignee, transferee or designee of
the
Purchaser for examination. Such examination may be made by the Purchaser
or the
Indenture Trustee, and their respective designees, upon reasonable notice
to the
Seller during normal business hours before the Closing Date and within 60
days
after the Closing Date. If any such person makes such examination prior to
the
Closing Date and identifies any Mortgage Loans that do not conform to the
requirements of the Purchaser as described in this Agreement, such Mortgage
Loans shall be deleted from the Closing Schedule. The Purchaser may, at its
option and without notice to the Seller, purchase all or part of the Mortgage
Loans without conducting any partial or complete examination. The fact that
the
Purchaser or any person has conducted or has failed to conduct any partial
or
complete examination of the Mortgage Files shall not affect the rights of
the
Purchaser or any assignee, transferee or designee of the Purchaser to demand
repurchase or other relief as provided herein or under the
Indenture.
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SECTION
5.
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Representations,
Warranties and Covenants of the
Seller.
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The
Seller, the Purchaser and Citigroup Global Markets Realty Corp.,
understands, and acknowledges and agree that, the representations and warranties
set forth in this Section 5 are made as of the Closing Date or as of the
date
specifically provided herein.
(a) The
Seller hereby represents and warrants to the Purchaser, as of the
date hereof and as of the Closing Date, and covenants, that:
(i) The
Seller has full corporate power and authority to conduct its business as
presently conducted by it to the extent material to the consummation of the
transactions contemplated herein. The Seller has the full corporate power
and
authority to own the Mortgage Loans and to transfer and convey the Mortgage
Loans to the Purchaser and has the full corporate power and authority to
execute
and deliver, engage in the transactions contemplated by, and perform and
observe
the terms and conditions of this Agreement.
(ii) The
Seller
has duly authorized the execution, delivery and performance of this Agreement,
has duly executed and delivered this Agreement, and this Agreement, assuming
due
authorization, execution and delivery hereof by the Purchaser, constitutes
a
legal, valid and binding obligation of the Seller, enforceable against it
in
accordance with its terms except as the enforceability thereof may be limited
by
bankruptcy, insolvency, reorganization and other similar laws relating to
or
affecting creditors’ rights generally and to general principles of
equity.
(iii) The
execution,
delivery and performance of this Agreement by the Seller (x) does not conflict
and will not conflict with, does not breach and will not result in a breach
of
and does not constitute and will not constitute a default (or an event, which
with notice or lapse of time or both, would constitute a default) under (A)
any
terms or provisions of the articles of incorporation or by-laws of the Seller,
(B) any term or provision of any material agreement, contract, instrument
or
indenture, to which the Seller is a party or by which the Seller or any of
its
property is bound or (C) to the Sellers’ best knowledge, any material law, rule,
regulation, order, judgment, writ, injunction or decree of any court or
governmental authority having jurisdiction over the Seller or any of its
property and (y) does not create or impose and will not result in the creation
or imposition of any lien, charge or encumbrance which would have a material
adverse effect upon the Mortgage Loans or any documents or instruments
evidencing or securing the Mortgage Loans.
(iv) No
consent,
approval, authorization or order of, registration or filing with, or notice
on
behalf of the Seller to any governmental authority or court is required,
under
federal laws or the laws of the State of New York, for the execution, delivery
and performance by the Seller of, or compliance by the Seller with, this
Agreement or the consummation by the Seller of any other transaction
contemplated hereby and by the Indenture; provided, however, that the Seller
makes no representation or warranty regarding federal or state securities
laws
in connection with the sale or distribution of the Notes.
(v) The
Seller is
not in violation of, and the execution and delivery of this Agreement by
the
Seller and its performance and compliance with the terms of this Agreement
will
not constitute a violation with respect to, any order or decree of any court
or
any order or regulation of any federal, state, municipal or governmental
agency
having jurisdiction over the Seller or its assets, which violation might
have
consequences that would materially and adversely affect the condition (financial
or otherwise) or the operation of the Seller or its assets or might have
consequences that would materially and adversely affect the performance of
its
obligations and duties hereunder.
(vi) The
Seller does not
believe, nor does it have any reason or cause to believe, that it cannot
perform
each and every covenant contained in this Agreement.
(vii) Immediately
prior to the
sale of the Mortgage Loans to the Purchaser as herein contemplated, the Seller
will be the owner of the related Mortgage and the indebtedness evidenced
by the
related Mortgage Note, and, upon the payment to the Seller of the Purchase
Price, in the event that the Seller retains or has retained record title,
the
Seller shall retain such record title to each Mortgage, each related Mortgage
Note and the related Mortgage Files with respect thereto in trust for the
Purchaser as the owner thereof from and after the date hereof.
(viii) The
consummation of the
transactions contemplated by this Agreement are in the ordinary course of
business of the Seller, and the transfer, assignment and conveyance of the
Mortgage Notes and the Mortgages by the Seller are not subject to the bulk
transfer or any similar statutory provisions.
(ix) The
Seller has not
dealt with any broker, investment banker, agent or other person, except for
the
Purchaser or any of its affiliates, that may be entitled to any commission
or
compensation in connection with the sale of the Mortgage Loans.
(x) There
is no
litigation currently pending, or to the best of the Seller’s knowledge without
independent investigation threatened, against the Seller that would reasonably
be expected to adversely affect the transfer of the Mortgage Loans, the issuance
of the Notes or the execution, delivery, performance or enforceability of
this
Agreement, or that would result in a material adverse change in the financial
condition of the Seller.
(xi) The
Seller is
solvent and will not be rendered insolvent by the consummation of the
transactions contemplated hereby. The Seller is not transferring any Mortgage
loan with any intent to hinder, delay or defraud any of its
creditors.
(b) Citigroup
Global Markets Realty Corp. hereby represents and warrants to
the Purchaser, as of the date hereof and as of the Closing Date, and covenants,
that:
(xii) All
Mortgage Loans were
originated in compliance with all applicable laws, including, but not limited
to, all applicable anti-predatory lending laws.
(xiii) No
Mortgage Loan originated
on or after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act.
(xiv) The
prepayment penalties
included in the transaction are enforceable and were originated in compliance
with all applicable federal, state and local laws.
(xv) No
Mortgage Loan is a Covered Loan or a High Cost Loan (in the case of
state or local law, as determined without giving effect to any available
federal
preemption, other than any exemptions specifically provided for
in the relevant state or local law).
(xvi) Information
provided to the rating agencies, including the loan level detail, is true
and
correct according to the rating agency requirements.
(xvii) Nothing
has
occurred in the period of time from the date that Citigroup Global Markets
Realty Corp. purchased the Group I Mortgage Loans on November 22, 2005 and
from
the date that Citigroup Global Markets Realty Corp. purchased the Group II
Mortgage Loans and Group III Mortgage Loans on February 22, 2006, to the
date
hereof which would cause such representation and warranties contained in
Section
6 of the Master Mortgage Loan Purchase Agreement (the “Master Purchase
Agreement”), dated as of November 1, 2005, by and between Citigroup Global
Markets Realty Corp. and the Originator, to be untrue in any material respect
as
of the date hereof.
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SECTION
6.
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Repurchase
Obligation for Defective Documentation and for Breach of
Representation and Warranty.
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It
is understood and agreed that the representations and warranties set
forth in Section 5(b) shall survive the sale of the Mortgage Loans to the
Purchaser and shall inure to the benefit of the Purchaser and any assignee,
transferee or designee of the Purchaser, including the Indenture Trustee
for the
benefit of holders of the Mortgage Pass-Through Notes evidencing an interest
in
all or a portion of the Mortgage Loans, notwithstanding any restrictive or
qualified endorsement on any Mortgage Note or Assignment or the examination
or
lack of examination of any Mortgage File. With respect to the representations
and warranties contained herein that are made to the knowledge or the best
knowledge of Citigroup Global Markets Realty Corp., or as to which Citigroup
Global Markets Realty Corp. has no knowledge, if it is discovered that the
substance of any such representation and warranty is inaccurate and the
inaccuracy materially and adversely affects the value of the related Mortgage
Loan, or the interest therein of the Purchaser or the Purchaser’s assignee,
designee or transferee, then notwithstanding Citigroup Global Markets Realty
Corp.’s lack of knowledge with respect to the substance of such representation
and warranty being inaccurate at the time the representation and warranty
was
made, such inaccuracy shall be deemed a breach of the applicable representation
and warranty and Citigroup Global Markets Realty Corp. shall take such action
described in the following paragraphs of this Section 6 in respect of such
Mortgage Loan. Upon discovery by either Citigroup Global Markets Realty Corp.
or
the Purchaser of a breach of any of the foregoing representations and warranties
made by Citigroup Global Markets Realty Corp. that materially and adversely
affects the value of the Mortgage Loans or the interest of the Purchaser
(or
which materially and adversely affects the interests of the Purchaser in
the
related Mortgage Loan in the case of a representation and warranty relating
to a
particular Mortgage Loan), the party discovering such breach shall give prompt
written notice to the other.
Within
90 days of the earlier of either discovery by or notice to
Citigroup Global Markets Realty Corp. of any breach of a representation or
warranty made by Citigroup Global Markets Realty Corp. that materially and
adversely affects the value of a Mortgage Loan or the Mortgage Loans or the
interest therein of the Purchaser, Citigroup Global Markets Realty Corp.
shall
use its best efforts promptly to cure such breach in all material
respects and, if such breach cannot be cured, Citigroup Global Markets Realty
Corp. shall, at the Purchaser’s option, repurchase such Mortgage Loan at the
Purchase Price. Citigroup Global Markets Realty Corp. may, at the request
of the
Purchaser and assuming Citigroup Global Markets Realty Corp. has a Substitute
Mortgage Loan, rather than repurchase a deficient Mortgage Loan as provided
above, remove such Mortgage Loan and substitute in its place a Substitute
Mortgage Loan or Loans. If Citigroup Global Markets Realty Corp. does not
provide a Substitute Mortgage Loan or Loans, it shall repurchase the deficient
Mortgage Loan. Any repurchase of a Mortgage Loan(s) pursuant to the foregoing
provisions of this Section 6 shall occur on a date designated by the Purchaser
and shall be accomplished by deposit in accordance with Section 2.10 of the
Servicing Agreement. Any repurchase or substitution required by this Section
shall be made in a manner consistent with Section 2.10 of the Servicing
Agreement.
At
the time of substitution or repurchase by Citigroup Global Markets
Realty Corp. of any deficient Mortgage Loan, the Purchaser and Citigroup
Global
Markets Realty Corp. shall arrange for the reassignment of the repurchased
or
substituted Mortgage Loan to Citigroup Global Markets Realty Corp. and the
delivery to Citigroup Global Markets Realty Corp. of any documents held by
the
Indenture Trustee relating to the deficient or repurchased Mortgage Loan.
In the
event the Purchase Price is deposited in the Collection Account. Citigroup
Global Markets Realty Corp. shall, simultaneously with such deposit, give
written notice to the Purchaser that such deposit has taken place. Upon such
repurchase, the Mortgage Loan Schedule shall be amended to reflect the
withdrawal of the repurchased Mortgage Loan from this Agreement.
As
to any Deleted Mortgage Loan for which Citigroup Global Markets Realty
Corp. substitutes a Substitute Mortgage Loan or Loans, Citigroup Global Markets
Realty Corp. shall effect such substitution by delivering to the Purchaser
or
its designee for such Substitute Mortgage Loan or Loans the Mortgage Note,
the
Mortgage, the Assignment and such other documents and agreements as are required
by the Indenture, with the Mortgage Note endorsed as required therein. Citigroup
Global Markets Realty Corp. shall remit for deposit in the Collection Account
the Monthly Payment due on such Substitute Mortgage Loan or Loans in the
month
following the date of such substitution. Monthly payments due with respect
to
Substitute Mortgage Loans in the month of substitution will be retained by
Citigroup Global Markets Realty Corp.. For the month of substitution,
distributions to the Purchaser will include the Monthly Payment due on such
Deleted Mortgage Loan in the month of substitution, and Citigroup Global
Markets
Realty Corp. shall thereafter be entitled to retain all amounts subsequently
received by Citigroup Global Markets Realty Corp. in respect of such Deleted
Mortgage Loan. Upon such substitution, the Substitute Mortgage Loans shall
be
subject to the terms of this Agreement in all respects, and Citigroup Global
Markets Realty Corp. shall be deemed to have made with respect to such
Substitute Mortgage Loan or Loans as of the date of substitution, the covenants,
representations and warranties set forth in Section 5.
It
is understood and agreed that the representations and warranties set
forth in Section 5 shall survive delivery of the respective Mortgage Files
to
the Indenture Trustee on behalf of the Purchaser.
It
is understood and agreed that (i) the obligations of Citigroup Global
Markets Realty Corp. set forth in this Section 6 to cure, repurchase and
substitute for a defective
Mortgage
Loan and (ii) the obligations of Citigroup Global Markets Realty
Corp. as provided in the next sentence constitute the sole remedies of the
Purchaser respecting a missing or defective document or a breach of the
representations and warranties contained in Section 5. Citigroup Global Markets
Realty Corp. shall indemnify the Purchaser and hold it harmless against any
losses, damages, penalties, fines, forfeitures, reasonable and necessary
legal
fees and related costs, judgments, and other costs and expenses resulting
from
any claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of the representations and warranties contained in Sections
5(a),
(c), (d) and (e) this Agreement.
SECTION
7. Closing; Payment
for the Mortgage Loans. The closing of the purchase and
sale of the Mortgage Loans shall be held at the New York City office of Xxxxxxx
Xxxxxxxx & Wood LLP at 10:00 AM New York
City time on the Closing Date.
The
closing shall be subject to each of the following
conditions:
(a) All
of the representations and warranties of Citigroup Global Markets
Realty Corp. and the Seller under this Agreement shall be true and correct
in
all material respects as of the date as of which they are made and no event
shall have occurred which, with notice or the passage of time, would constitute
a default under this Agreement;
(b) The
Purchaser shall have received, or the attorneys of the Purchaser
shall have received in escrow (to be released from escrow at the time of
closing), all Closing Documents as specified in Section 8 of this Agreement,
in
such forms as are agreed upon and acceptable to the Purchaser, duly executed
by
all signatories other than the Purchaser as required pursuant to the respective
terms thereof;
(c) The
Seller shall have delivered or caused to be delivered and released to
the Purchaser or to its designee, all documents (including without limitation,
the Mortgage Loans) required to be so delivered by the Purchaser;
and
(d) All
other terms and conditions of this Agreement shall have been complied
with.
Subject
to the foregoing conditions, the Purchaser shall deliver or cause
to be delivered to the Seller on the Closing Date, against delivery and release
by the Seller to the Indenture Trustee of all documents required pursuant
to the
Indenture, the consideration for the Mortgage Loans as specified in Section
3 of
this Agreement, by delivery to the Seller of the Mortgage Loan Purchase
Price.
SECTION
8. Closing
Documents. Without limiting the generality of Section 7
hereof, the closing shall be subject to delivery of each of the following
documents:
(a) An
Officers’ Certificate of the Seller, dated the Closing Date, upon
which the Purchaser and Citigroup Global Markets Inc. (the “Underwriter”) may
rely, in a form acceptable to the Purchaser;
(b) A
Secretary’s Certificate of the Seller, dated the Closing Date, upon
which the Purchaser and the Underwriter may rely, in a form acceptable to
the
Purchaser, and attached
thereto
copies of the certificate of incorporation, by-laws and
certificate of good standing of the Seller;
(c) An
Opinion of Counsel of the Seller, with respect to the true sale of the
mortgage loans and the enforceability of this Agreement, dated the Closing
Date
and addressed to the Purchaser and the Underwriter, in a form acceptable
to the
Purchaser;
(d) An
Officers’ Certificate of the Originator, dated the Closing Date, upon
which the Purchaser and the Underwriter may rely, in a form acceptable to
the
Purchaser;
(e) A
Secretary’s Certificate of the Originator, dated the Closing Date, upon
which the Purchaser and the Underwriter may rely, in a form acceptable to
the
Purchaser, and attached thereto copies of the certificate of incorporation,
by-laws and certificate of good standing of the Originator;
(f) Such
opinions of counsel as the Rating Agencies or the Indenture Trustee
may request in connection with the sale of the Mortgage Loans by the Seller
to
the Purchaser or the Seller’s execution and delivery of, or performance under,
this Agreement;
(g) Letters
from Deloitte & Touche L.L.P., certified public accountants,
dated the date hereof and 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
Purchaser’s Prospectus Supplement, dated February 24, 2006 agrees with the
records of Citigroup Global Markets Realty Corp.;
(h) Letters
from Deloitte & Touche L.L.P., for the Originator, dated the
date hereof and 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 Purchaser’s
Prospectus Supplement, dated February 27, 2006, under the subheading “The Master
Servicer and the Servicer—The Servicer” agrees with the records of the Servicer;
and
(i) Such
further information, certificates, opinions and documents as the
Purchaser or the Underwriter may reasonably request.
SECTION
9. Costs. The Seller shall
pay (or shall reimburse
the Purchaser or any other Person to the extent that the Purchaser or such
other
Person shall pay) all necessary and reasonable costs and expenses incurred
directly in delivering this Agreement, the Indenture, the Notes, the prospectus,
prospectus supplement and private placement memorandum relating to the Notes
and
other related documents, the initial fees, costs and expenses of the Securities
Administrator and the Indenture Trustee set forth in an engagement letter
delivered to the Seller by the Securities Administrator, the fees and expenses
of the Purchaser’s counsel in connection with the preparation of all documents
relating to the securitization of the Mortgage Loans, the filing fee charged
by
the Securities and Exchange Commission for registration of the Notes, the
fees
charged by any rating agency to rate the Notes and the ongoing expenses of
the
Rating Agencies. All other costs and expenses in connection with the
transactions contemplated hereunder shall be borne by the party incurring
such
expense.
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SECTION
10.
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[Reserved].
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SECTION
11. Mandatory Delivery; Grant
of Security Interest. The sale and delivery on the
Closing Date of the Mortgage Loans described on the Mortgage Loan Schedule
in
accordance with the terms and conditions of this Agreement is mandatory.
It is
specifically understood and agreed that each Mortgage Loan is unique and
identifiable on the date hereof and that an award of money damages would
be
insufficient to compensate the Purchaser for the losses and damages incurred
by
the Purchaser in the event of the Seller’s failure to deliver the Mortgage Loans
on or before the Closing Date. The Seller hereby grants to the Purchaser
a lien
on and a continuing security interest in the Seller’s interest in each Mortgage
Loan and each document and instrument evidencing each such Mortgage Loan
to
secure the performance by the Seller of its obligation hereunder, and the
Seller
agrees that it holds such Mortgage Loans in custody for the Purchaser, subject
to the Purchaser’s (i) right, prior to the Closing Date, to reject any Mortgage
Loan to the extent permitted by this Agreement and (ii) obligation to deliver
or
cause to be delivered the consideration for the Mortgage Loans pursuant to
Section 7 hereof. Any Mortgage Loans rejected by the Purchaser shall
concurrently therewith be released from the security interest created hereby.
The Seller agrees that, upon acceptance of the Mortgage Loans by the Purchaser
or its designee and delivery of payment to the Seller, that its security
interest in the Mortgage Loans shall be released. All rights and remedies
of the
Purchaser under this Agreement are distinct from, and cumulative with, any
other
rights or remedies under this Agreement or afforded by law or equity and
all
such rights and remedies may be exercised concurrently, independently or
successively.
Notwithstanding
the foregoing, if on the Closing Date, each of the
conditions set forth in Section 7 hereof shall have been satisfied and the
Purchaser shall not have paid or caused to be paid the Mortgage Loan Purchase
Price, or any such condition shall not have been waived or satisfied and
the
Purchaser determines not to pay or cause to be paid the Mortgage Loan Purchase
Price, the Purchaser shall immediately effect the redelivery of the Mortgage
Loans, if delivery to the Purchaser has occurred and the security interest
created by this Section 11 shall be deemed to have been released.
SECTION
12. Notices. All demands, notices
and communications
hereunder shall be in writing and shall be deemed to have been duly given
if
personally delivered to or mailed by registered mail, postage prepaid, or
transmitted by telex or telegraph and confirmed by a similar mailed writing,
if
to the Purchaser, addressed to the Purchaser at 000 Xxxxxxxxx Xxxxxx, 0xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Mortgage Finance Group, or such other
address as may hereafter be furnished to the Seller in writing by the Purchaser,
and if to the Seller, addressed to the Seller at 0000 Xxxxxxx Xxxxxx,
12th Floor, Chevy Chase, Maryland 20815, Attention: Chief Legal
Officer, or such other address as may hereafter be furnished to the Purchaser
in
writing by the Seller.
SECTION
13. Severability of
Provisions. Any part, provision, representation or
warranty of this Agreement which is prohibited or which is held to be void
or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any
part,
provision, representation or warranty of this Agreement which is prohibited
or
unenforceable or is held to be void or unenforceable in any jurisdiction
shall,
as to such jurisdiction, be ineffective to the extent of such prohibition
or
unenforceability
without
invalidating the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable
any
provision hereof.
SECTION
14. Agreement of
Parties. The Seller and the Purchaser each agree to
execute and deliver such instruments and take such actions as either of the
others may, from time to time, reasonably request in order to effectuate
the
purpose and to carry out the terms of this Agreement and the
Indenture.
SECTION
15. Survival. The Seller agrees
that the representations, warranties and agreements
made by it herein and in any certificate or other instrument delivered pursuant
hereto shall be deemed to be relied upon by the Purchaser, notwithstanding
any
investigation heretofore or hereafter made by the Purchaser or on its behalf,
and that the representations, warranties and agreements made by the Seller
herein or in any such certificate or other instrument shall survive the delivery
of and payment for the Mortgage Loans and shall continue in full force and
effect, notwithstanding any restrictive or qualified endorsement on the Mortgage
Notes and notwithstanding subsequent termination of this Agreement, the
Indenture or the Trust Fund.
SECTION
16. GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES, OBLIGATIONS
AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS (INCLUDING THE CHOICE OF LAW PROVISIONS) AND DECISIONS
OF THE STATE OF NEW YORK. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION
17. Miscellaneous. This Agreement may
be executed in
two or more counterparts, each of which when so executed and delivered shall
be
an original, but all of which together shall constitute one and the same
instrument. This Agreement shall inure to the benefit of and be binding upon
the
parties hereto and their respective successors and assigns. This Agreement
supersedes all prior agreements and understandings relating to the subject
matter hereof. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, but only by an instrument in writing
signed by the party against whom enforcement of the change, waiver, discharge
or
termination is sought. The headings in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning
hereof.
It
is the express intent of the parties hereto that the conveyance of the
Mortgage Loans by the Seller to the Purchaser as provided in Section 4 hereof
be, and be construed as, a sale of the Mortgage Loans by the Seller to the
Purchaser and not as a pledge of the Mortgage Loans by the Seller to the
Purchaser to secure a debt or other obligation of the Seller. However, in
the
event that, notwithstanding the aforementioned intent of the parties, the
Mortgage Loans are held to be property of the Seller, then, (a) it is the
express intent of the parties that such conveyance be deemed a pledge of
the
Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller and (b) (1) this Agreement shall also be deemed
to be a
security
agreement within the meaning of Articles 8 and 9 of the New York
Uniform Commercial Code; (2) the conveyance provided for in Section 4 hereof
shall be deemed to be a grant by the Seller to the Purchaser of a security
interest in all of the Seller’s right, title and interest in and to the Mortgage
Loans and all amounts payable to the holders of the Mortgage Loans in accordance
with the terms thereof and all proceeds of the conversion, voluntary or
involuntary, of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts, other than investment
earnings, from time to time held or invested in the Collection Account whether
in the form of cash, instruments, securities or other property; (3) the
possession by the Purchaser or its agent of Mortgage Notes, the related
Mortgages and such other items of property that constitute instruments, money,
negotiable documents or chattel paper shall be deemed to be “possession by the
secured party” for purposes of perfecting the security interest pursuant to
Section 9-305 of the New York Uniform Commercial Code; and (4) notifications
to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Purchaser for the purpose of perfecting
such security interest under applicable law. Any assignment of the interest
of
the Purchaser pursuant to Section 4(d) hereof shall also be deemed to be
an
assignment of any security interest created hereby. The Seller and the Purchaser
shall, to the extent consistent with this Agreement, take such actions as
may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to
be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the term of this Agreement and the
Indenture.
IN
WITNESS WHEREOF, the Purchaser and the Seller have caused their names
to be signed by their respective officers thereunto duly authorized as of
the
date first above written.
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CITIGROUP
MORTGAGE LOAN TRUST INC.
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By:
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/s/
Xxxxx X. Xxxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxxx
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Title:
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Vice
President
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CS
OT I LLC
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By:
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/s/
Xxxxx Xxxxxx
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Name:
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Xxxxx
Xxxxxx
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Title:
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Authorized
Agent
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Acknowledged
By:
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CITIGROUP
GLOBAL MARKETS REALTY CORP.
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By:
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/s/
Xxxxx X. Xxxxxxxxx
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Name:
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Xxxxx
X. Xxxxxxxxx
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Title:
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Authorized
Agent
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