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Exhibit
99.1
NYMT SECURITIES
CORPORATION,
as Purchaser,
and
NEW YORK MORTGAGE FUNDING,
LLC,
as Seller,
MORTGAGE LOAN PURCHASE
AGREEMENT
Dated as of
[ ],
2005
Mortgage Loans
TABLE OF
CONTENTS
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PAGE
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ARTICLE I
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DEFINITIONS
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SECTION 1.1.
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Definitions |
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1 |
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ARTICLE II
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SALE OF MORTGAGE LOANS;
PAYMENT OF PURCHASE PRICE
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SECTION 2.1.
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Sale of
Mortgage Loans |
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1 |
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SECTION 2.2.
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Obligations of Seller Upon Sale |
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2 |
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SECTION 2.3.
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Payment
of Purchase Price for the Mortgage Loans |
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2 |
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ARTICLE III
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REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
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SECTION 3.1.
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Seller
Representations and Warranties |
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3 |
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SECTION 3.2.
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Seller
Representations and Warranties Relating to the Mortgage
Loans |
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4 |
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SECTION 3.3.
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Remedies
for Breach |
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ARTICLE IV
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SELLER’S
COVENANTS
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SECTION 4.1.
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Covenants
of the Seller |
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ARTICLE V
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SERVICING
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SECTION 5.1.
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Servicing |
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ARTICLE VI
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INDEMNIFICATION BY THE SELLER
WITH RESPECT TO THE MORTGAGE LOANS
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SECTION 6.1.
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Indemnification. |
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ARTICLE VII
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TERMINATION
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SECTION 7.1.
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Termination |
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ARTICLE VIII
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MISCELLANEOUS
PROVISIONS
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SECTION 8.1.
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Amendment |
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SECTION 8.2.
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Governing
Law |
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SECTION 8.3.
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Notices |
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SECTION 8.4.
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Severability of Provisions |
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19 |
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SECTION 8.5.
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Counterparts |
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SECTION 8.6.
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Further
Agreements |
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19 |
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SECTION 8.7.
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Intention
of the Parties |
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SECTION 8.8.
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Successors and Assigns: Assignment of Purchase
Agreement |
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20 |
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SECTION 8.9.
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Survival |
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21 |
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SECTION 8.10.
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Third
Party Beneficiaries |
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ii
MORTGAGE LOAN PURCHASE
AGREEMENT (the “Agreement”), dated as of
[ ],
2005, between NEW YORK MORTGAGE FUNDING, LLC (the
“Seller”) and NYMT SECURITIES CORPORATION (the
“Purchaser” or the “Depositor”).
W I T
N E S S E T
H
WHEREAS, the Seller is the
owner of the notes or other evidence of indebtedness (the
“Mortgage Notes”) so indicated on Schedule I hereto
referred to below, and Related Documents (as defined below)
(collectively, the “Mortgage Loans”);
WHEREAS, the Seller as of the
date hereof owns the mortgages (the “Mortgages”) on the
properties (the “Mortgaged Properties”) securing such
Mortgage Loans, including rights to (a) any property acquired by
foreclosure or deed in lieu of foreclosure or otherwise and (b) the
proceeds of any insurance policies covering the Mortgage Loans or
the Mortgaged Properties or the obligors on the Mortgage
Loans;
WHEREAS, the parties hereto
desire that the Seller sell the Mortgage Loans to the Purchaser
pursuant to the terms of this Agreement;
WHEREAS, the Purchaser will
assign to New York Mortgage Trust, Series
2005-[ ] (the “Trust” or the
“Issuer”) all of its rights against the Seller pursuant
to this Agreement as described herein pursuant to the terms of a
Transfer and Servicing Agreement dated as of
[ ],
2005 (the “Transfer and Servicing Agreement”) among the
Purchaser, the Trust,
[ ],
as master servicer and trust administrator,
[ ],
as indenture trustee, NYMT Servicing Corporation, as servicer, the
Seller, and
[ ],
as subservicer; and
WHEREAS, the Trust will
pledge to the Indenture Trustee all of its rights against the
Seller pursuant to this Agreement and the Transfer and Servicing
Agreement as described herein and therein, respectively, pursuant
to the terms of an Indenture dated as of
[ ],
2005 (the “Indenture”) among the Trust, the Trust
Administrator and the Indenture Trustee.
NOW, THEREFORE, in
consideration of the mutual covenants herein contained, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1.
Definitions . All capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Transfer and
Servicing Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS;
PAYMENT OF PURCHASE PRICE
SECTION 2.1. Sale of
Mortgage Loans . The Seller, concurrently with the execution
and delivery of this Agreement, does hereby sell, assign, set over,
and otherwise convey to the Purchaser, without recourse, all of its
right, title and interest in (other than any servicing
rights
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relating to the Mortgage Loans), to and
under the following, whether now existing or hereafter acquired and
wherever located: (i) the Mortgage Loans, including the related
Cut-off Date Balance, all payments in respect of the Mortgage Loans
received after the Cut-off Date (exclusive of payments in respect
of principal and interest on the delinquent Mortgage Loans due
prior to the Cut-off Date and received thereafter); (ii) property
which secured a Mortgage Loan and which has been acquired by
foreclosure or deed in lieu of foreclosure; (iii) the interest of
the Seller in any insurance policies in respect of the Mortgage
Loans; (iv) all rights under any guaranty and/or additional
security agreement executed in connection with a Mortgage Loan; and
(v) all proceeds of the foregoing.
SECTION 2.2. Obligations
of Seller Upon Sale . In connection with any transfer pursuant
to Section 2.1 hereof, the Seller further agrees, at its own
expense, on or prior to the Closing Date, (a) to indicate in its
books and records, other than for accounting and federal income tax
purposes, that the Mortgage Loans have been sold to the Owner
Trustee, as assignee of the Purchaser pursuant to this Agreement
and (b) to deliver to the Purchaser a computer file containing a
true and complete list of all such Mortgage Loans specifying for
each such Mortgage Loan, as of the related Cut-off Date, (i) its
account number and (ii) the Cut-off Date Balance. Such file shall
also be marked as Schedule I to this Agreement and is hereby
incorporated into and made a part of this Agreement.
In connection with any
conveyance by the Seller, the Seller shall on behalf of the
Purchaser, the Depositor and the Issuer deliver to, and deposit
with the Custodian, as custodian on behalf of the Indenture
Trustee, as assignee of the Purchaser, on or before the Closing
Date (except as noted below) the documents or instruments with
respect to each Mortgage Loan (collectively, the “Mortgage
File” or, other than the Mortgage Note, the “Related
Documents”) listed in Section 2.01(b) of the Transfer and
Servicing Agreement.
The parties hereto intend
that the transaction set forth herein be a sale for all purposes
other than accounting and federal income tax purposes by the Seller
to the Purchaser of all the Seller’s right, title and
interest in and to the Mortgage Loans and other property described
above. In the event the transaction set forth herein is deemed not
to be a sale, the Seller hereby grants to the Purchaser a security
interest in all of the Seller’s right, title and interest in,
to and under the Mortgage Loans and the Related Documents and other
property described above, whether now existing or hereafter
created, to secure all of the Seller’s obligations hereunder;
and this Agreement shall constitute a security agreement under
applicable law. The parties hereto intend that for federal income
tax purposes the transaction set forth herein be treated not as a
sale, but as though the Seller retained the tax ownership of the
Mortgage Loans through the Trust as a disregarded entity with the
Seller as the borrower under the Notes.
SECTION 2.3. Payment of
Purchase Price for the Mortgage Loans . In consideration of the
sale of the Mortgage Loans from the Seller to the Purchaser on the
Closing Date, the Purchaser agrees to pay to the Seller on the
Closing Date by transfer of immediately available funds, an amount
equal to
$[ ]
(the “Purchase Price”). The Seller shall transfer to
the Seller or one of its Affiliates on the Closing Date the
Ownership Certificate. The Seller shall pay, and be billed directly
for, all expenses incurred by the Purchaser in connection with the
issuance of the Notes, including, without limitation, printing fees
incurred in connection with the prospectus relating to the Notes,
blue sky registration fees and expenses, fees and expenses
of
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[Counsel to the Issuer], fees of the
rating agencies requested to rate the Notes, accountant’s
fees and expenses, Custodian fees, loan level due diligence fees,
the fees and expenses of the Indenture Trustee and the Owner
Trustee and other out-of-pocket costs, if any.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
SECTION 3.1. Seller
Representations and Warranties . The Seller represents and
warrants to the Purchaser as of the Closing Date that:
(i) the Seller is a Delaware
limited liability company, duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has the
corporate power to own its assets and to transact the business in
which it is currently engaged. The Seller is duly qualified to do
business as a foreign limited liability company and is in good
standing in each jurisdiction in which the character of the
business transacted by it or any properties owned or leased by it
requires such qualification and in which the failure so to qualify
would have a material adverse effect on the business, properties,
assets, or condition (financial or other) of the Seller;
(ii) the Seller has the
entity power and authority to make, execute, deliver and perform
this Agreement and all of the transactions contemplated under the
Agreement, including the power, authority and capacity to hold and
sell each Mortgage Loan, and has taken all necessary entity action
to authorize the execution, delivery and performance of this
Agreement. When executed and delivered, this Agreement will
constitute the legal, valid and binding obligation of the Seller
enforceable in accordance with its terms, except as enforcement of
such terms may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally and
by the availability of equitable remedies;
(iii) the Seller is not
required to obtain the consent of any other party or any consent,
license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Agreement, except for such consent, license,
approval or authorization, or registration or declaration, as shall
have been obtained or filed, as the case may be, prior to the
Closing Date;
(iv) it is not in violation
of, and the execution, delivery and performance of this Agreement
by the Seller will not violate, any provision of any existing law
or regulation or any order or decree of any court or any order or
decree of any federal, state or municipal governmental agency
applicable to the Seller or any provision of the articles of
organization or operating agreement of the Seller, or constitute a
material breach of any mortgage, indenture, contract or other
agreement to which the Seller is a party or by which the Seller may
be bound;
(v) no litigation or
administrative proceeding of or before any court, tribunal or
governmental body is currently pending, or to the knowledge of the
Seller threatened, against the Seller or any of its properties or
with respect to this Agreement which in the opinion of the Seller
has a reasonable likelihood of resulting in a material adverse
effect on the transactions contemplated by this
Agreement;
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(vi) the Seller has been
organized in conformity with the requirements for qualification as
a “qualified REIT subsidiary” (“QRS”) of a
REIT and currently qualifies as a QRS; the Seller has elected to be
treated as a QRS for federal income tax purposes; and the Seller
has operated and will continue to operate in a manner that will
enable it to continue to maintain its current qualification as a
QRS;
(vii) the Mortgage Loans are
not being transferred by the Seller with any intent to hinder,
delay or defraud any creditors of the Seller;
(viii) immediately prior to
the delivery of each Mortgage Loan, the related Mortgage was held
of record solely for the account of the Seller and the Seller was
the owner of the related Mortgage Note, in the event that it
retains record title, it 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 or its assignee as
the owner thereof and only for the purpose of servicing or
supervising the servicing of each such Mortgage Loan;
(ix) the consummation of the
transactions contemplated by this Agreement are in the
Seller’s ordinary course of business, and the transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages
by it pursuant to this Agreement are not subject to the bulk
transfer or any similar statutory provisions; and
(x) the written statements,
reports and other documents prepared and furnished or to be
prepared and furnished by the Seller pursuant to this Agreement or
in connection with the transactions contemplated hereby taken in
the aggregate do not contain any untrue statement of material fact
or omit to state a material fact necessary to make the statements
contained therein not misleading.
It is understood and agreed
that the representations and warranties set forth in this Section
3.1 shall survive the sale and assignment of the Mortgage Loans to
the Purchaser.
SECTION 3.2. Seller
Representations and Warranties Relating to the Mortgage Loans .
The Seller represents and warrants to the Purchaser as of the
Closing Date that:
(i) the information set forth
in the Mortgage Loan Schedule relating to the Mortgage Loans is
true and correct in all material respects as of the related Cut-off
Date;
(ii) as of the Closing Date,
the Mortgage File relating to each Mortgage Loan contains each of
the documents and instruments specified to be included
therein;
(iii) the Seller has received
a written acknowledgment from the Custodian that the Custodian is
acting solely as agent of the Indenture Trustee;
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(iv) each Mortgaged Property
is improved by a one- to four-family single family residential
dwelling. No Mortgaged Property is a mobile home. No Mortgaged
Property securing any Mortgage Loans is a manufactured
home;
(v) each Mortgage Loan is a
closed-end mortgage loan and all amounts due under the related
Mortgage Note have been advanced. Each Mortgage Loan has an
original term to maturity from the date on which the first
Scheduled Payment is due of not more than 30 years. Each mortgage
note calls for a scheduled payment of principal and interest that,
once it enters its amortization period, is sufficient to fully
amortize the original Principal Balance of the Mortgage Loan in
equal monthly installments by its maturity date;
(vi) each Mortgage Note in
respect of a Mortgage Loan provides for level monthly payments
sufficient to fully amortize the principal balance of such Mortgage
Note on its maturity date, except for no more than
[ ]%
of the Mortgage Loans (by Cut-off Date Balance) which provide for
payments of interest only during the [first] five years of the
Mortgage Loan before adjusting to a fully amortizing Mortgage Loan
over the remaining term;
(vii) each lien that attached
to a Mortgage Loan immediately prior to the transfer and assignment
contemplated in this Agreement has been released and immediately
prior to the transfer and assignment contemplated in this
Agreement, the Seller held good, marketable and indefeasible title
to, and was the sole owner and holder of, each Mortgage Loan
subject to no liens; the Seller has full right and authority under
all governmental and regulatory bodies having jurisdiction over the
Seller, subject to no interest or participation of, or agreement
with, any party, to sell and assign the same pursuant to this
Agreement; and immediately upon the transfer and assignment therein
contemplated, the Seller shall have transferred all of its right,
title and interest in and to each Mortgage Loan to the
Purchaser;
(viii) the Mortgage Notes
constitute “instruments” within the meaning of the New
York UCC;
(ix) the Seller has not
authorized the filing of and is not aware of any financing
statements against the Seller that include a description of
collateral covering the Mortgage Loans other than any financing
statement relating to the security interest granted to the
Purchaser under this Agreement. The Seller is not aware of any
judgment or tax lien filings against it;
(x) except in the case of
Cooperative Loans, if any, each Mortgage requires all buildings or
other improvements on the related Mortgaged Property to be insured
by a generally acceptable insurer against loss by fire, hazards of
extended coverage and such other hazards as are customary in the
area where the related Mortgaged Property is located pursuant to
insurance policies conforming to the requirements of the guidelines
of FNMA or FHLMC. If upon origination of the Mortgage Loan, the
Mortgaged Property was in an area identified in the Federal
Register by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been
made
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available) a flood insurance
policy meeting the requirements of the current guidelines of the
Federal Flood Insurance Administration is in effect which policy
conforms to the requirements of the current guidelines of the
Federal Flood Insurance Administration. Each Mortgage obligates the
related Mortgagor thereunder to maintain the hazard insurance
policy at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to obtain and maintain such insurance at such
Mortgagor’s cost and expense, and to seek reimbursement
therefor from the Mortgagor. Where required by state law or
regulation, each Mortgagor has been given an opportunity to choose
the carrier of the required hazard insurance; provided the policy
is not a “master” or “blanket” hazard
insurance policy covering the common facilities of a planned unit
development. The hazard insurance policy is the valid and binding
obligation of the insurer, is in full force and effect, and will be
in full force and effect and inure to the benefit of the Purchaser
upon the consummation of the transactions contemplated by this
Agreement;
(xi) each Mortgage has not
been satisfied, cancelled, subordinated or rescinded, in whole or
in part, and (a) the Mortgaged Property has not been released from
the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such release,
cancellation, subordination or rescission and (b) no Mortgagor has
been released, in whole or in part, from its obligations under the
related Mortgage Note;
(xii) each Mortgage evidences
a valid, subsisting, enforceable and perfected first lien on the
related Mortgaged Property. The lien of the Mortgage is subject
only to: (1) liens of current real property taxes and assessments
not yet due and payable and, if the related Mortgaged Property is a
condominium unit, any lien for common charges permitted by statute,
(2) covenants, conditions and restrictions, rights of way,
easements and other matters of public record as of the date of
recording of such Mortgage acceptable to mortgage lending
institutions in the area in which the related Mortgaged Property is
located and specifically referred to in the lender’s Title
Insurance Policy or attorney’s opinion of title and abstract
of title delivered to the originator of such Mortgage Loan, and (3)
such other matters to which like properties are commonly subject
which do not, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided
by the Mortgage. Any security agreement, chattel mortgage or
equivalent document related to, and delivered to the Indenture
Trustee in connection with, a Mortgage Loan establishes a valid,
subsisting and enforceable first lien on the property described
therein and the Purchaser has full right to sell and assign the
same to the Indenture Trustee;
(xiii) except with respect to
liens released immediately prior to the transfer herein
contemplated, each Mortgage Note and related Mortgage have not been
assigned or pledged and immediately prior to the transfer and
assignment herein contemplated, the Seller was the sole owner and
holder of, each Mortgage Loan subject to no liens, charges,
mortgages, claims, participation interests, equities, pledges or
security interests of any nature, encumbrances or rights of others
(collectively, a “Lien”); the Seller has full right and
authority under all governmental and regulatory bodies having
jurisdiction over the Seller, subject to no interest or
participation of, or agreement with, any party, to sell
and
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assign the same pursuant to
this Agreement; and immediately upon the transfer and assignment
herein contemplated, the Seller shall have transferred all of its
right, title and interest in and to each Mortgage Loan to the
Purchaser (or its assignee);
(xiv) no Mortgage Loan was
more than one calendar month delinquent as of the Cut-off Date; the
Seller has not advanced funds to, or induced, solicited or
knowingly received any advance of funds from a party other than the
owner of the Mortgaged Property subject to the Mortgage, directly
or indirectly, for the payment of any amount required by the
Mortgage Loan;
(xv) there is no delinquent
tax, fee or assessment lien on any Mortgaged Property, and each
Mortgaged Property is free of material damage and is in good
repair;
(xvi) no Mortgage Loan is
subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, nor will the operation of
any of the terms of any Mortgage Note or Mortgage, or the exercise
of any right thereunder, render either the Mortgage Note or the
Mortgage unenforceable in whole or in part, or subject to any right
of rescission, set-off, counterclaim or defense, including the
defense of usury, and no such right of rescission, set-off,
counterclaim or defense has been asserted with respect
thereto;
(xvii) none of the Mortgage
Loans are retail installment contracts for goods or services or are
home improvement loans for goods or services, which would be either
“consumer credit contracts” or “purchase money
loans” as such terms are defined in 16 C.F.R. §
433.1;
(xviii) no Mortgagor has or
will have a claim or defense against the Seller or any assignor or
assignee of the Seller under any express or implied warranty with
respect to goods or services provided in connection with any
Mortgage Loan;
(xix) the Mortgage, the
Mortgage Note and the other Related Documents contain the entire
agreement of the parties and all obligations of the Seller under
the related Mortgage Loan, and no other agreement defines, modifies
or expands the obligations of the Seller under the Mortgage
Loan;
(xx) there is no
mechanics’ lien or claim for work, labor or material
affecting any Mortgaged Property which is or may be a lien prior
to, or equal or coordinate with, the lien of the related Mortgage,
and no rights are outstanding that under law could give rise to
such a lien except those which are insured against by the title
insurance policy referred to in Section 3.02(xxii)
below;
(xxi) each Mortgage Loan at
the time it was made complied with, and each Mortgage Loan at all
times was serviced in compliance with, in each case, in all
material respects, applicable local, state and federal laws and
regulations, including, without limitation, usury, equal credit
opportunity, consumer credit, truth-in-lending, disclosure laws and
predatory and abusive lending laws;
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(xxii) with respect to each
Mortgage Loan, either (a) a lender’s title insurance policy,
issued in standard American Land Title Association or California
Land Title Association form, or other form acceptable in a
particular jurisdiction, by a title insurance company authorized to
transact business in the state in which the related Mortgaged
Property is situated in an amount at least equal to the original
principal balance of such Mortgage Loan insuring the
mortgagee’s interest under the related Mortgage Loan as the
holder of a valid first mortgage lien of record on the real
property described in the Mortgage, subject only to the exceptions
of the character referred to in Section 3.02(xii) above, was valid
and in full force and effect on the date of the origination of such
Mortgage Loan and as of the Closing Date or (b) an attorney’s
opinion of title was prepared in connection with the origination of
such Mortgage Loan;
(xxiii) the improvements upon
each Mortgaged Property are covered by a valid and existing hazard
insurance policy with a generally acceptable carrier that provides
for fire and extended coverage representing coverage described in
the Section of the Transfer and Servicing Agreement entitled
“Standard Hazard and Flood Insurance
Policies”;
(xxiv) a flood insurance
policy is in effect with respect to each Mortgaged Property with a
generally acceptable carrier in an amount representing coverage
described in the Section of the Transfer and Servicing Agreement
entitled “Standard Hazard and Flood Insurance
Policies”, if and to the extent required by such Section of
the Transfer and Servicing Agreement;
(xxv) each Mortgage Note and
the related Mortgage are genuine, and each Mortgage and Mortgage
Note is the legal, valid and binding obligation of the related
Mortgagor and is enforceable in accordance with its terms, except
only as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors’ rights generally and by general
principles of equity (whether considered in a proceeding or action
in equity or at law), and all parties to each Mortgage Loan and the
Mortgagee had full legal capacity to execute all Mortgage Loan
documents and to convey the estate therein pu
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