MASTER REPURCHASE AGREEMENT
Among:
DB STRUCTURED PRODUCTS, INC., as Buyer
ASPEN FUNDING CORP., as Buyer
NEWPORT FUNDING CORP., as Buyer
NEW YORK MORTGAGE TRUST, INC., as Guarantor
And
NYMC LOAN CORPORATION, as Seller
Dated as of December 13, 2005
TABLE OF CONTENTS
1.
APPLICABILITY
1
2.
DEFINITIONS AND INTERPRETATION
1
3.
THE TRANSACTIONS
17
4.
CONFIRMATIONS
18
5.
PAYMENT AND TRANSFER
18
6.
MARGIN MAINTENANCE
18
7.
INCOME PAYMENTS
19
8.
TAXES; TAX TREATMENT
19
9.
SECURITY INTEREST; BUYERS' APPOINTMENT AS ATTORNEY-IN-FACT
20
10.
CONDITIONS PRECEDENT
22
11.
RELEASE OF PURCHASED LOANS
25
12.
RELIANCE
25
13.
REPRESENTATIONS AND WARRANTIES
25
14.
COVENANTS OF SELLER AND GUARANTOR
28
15.
REPURCHASE DATE PAYMENTS/COLLECTIONS
33
16.
REPURCHASE OF PURCHASED LOANS; CHANGE OF LAW
34
17.
SUBSTITUTION
34
18.
REPURCHASE TRANSACTIONS
35
19.
EVENTS OF DEFAULT
35
20.
REMEDIES
39
21.
DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE
41
22.
USE OF EMPLOYEE PLAN ASSETS
41
23.
INDEMNITY
41
24.
WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS
43
25.
REIMBURSEMENT; SET-OFF
43
26.
FURTHER ASSURANCES
44
27.
ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION
44
28.
TERMINATION
44
29.
ASSIGNMENT
44
30.
AMENDMENTS, ETC.
45
31.
SEVERABILITY
45
32.
BINDING EFFECT; GOVERNING LAW
45
33.
WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND VENUE; SERVICE OF PROCESS
45
34.
SINGLE AGREEMENT
46
35.
INTENT
46
36.
NOTICES AND OTHER COMMUNICATIONS
46
37.
CONFIDENTIALITY
47
38.
DUE DILIGENCE
48
39.
NO PROCEEDINGS
48
EXHIBITS
EXHIBIT A-1
MONTHLY CERTIFICATION
EXHIBIT A-2
QUARTERLY CERTIFICATION
EXHIBIT B-1
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO LOANS OTHER THAN SMALL BALANCE
COMMERCIAL LOANS
EXHIBIT B-2
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO LOANS THAT ARE SMALL BALANCE
COMMERCIAL LOANS
EXHIBIT C
ACQUISITION GUIDELINES
EXHIBIT D
UNDERWRITING GUIDELINES
EXHIBIT E
FORM OF SECURITY RELEASE CERTIFICATION
EXHIBIT F
LITIGATION
EXHIBIT G
THIRD PARTY GUIDELINES
-ii-
MASTER REPURCHASE AGREEMENT
Dated as of December 13, 2005
AMONG:
DB STRUCTURED PRODUCTS, INC. ("DBSP"), ASPEN FUNDING CORP. ("Aspen"), NEWPORT
FUNDING CORP. ("Newport" and collectively with DBSP and Aspen, the "Buyers" and
individually, a "Buyer," which term shall include any "Principal" as defined and
provided for in Annex I), or as agent pursuant hereto ("Agent"),
NEW YORK MORTGAGE TRUST, INC. ("Guarantor"), and
NYMC LOAN CORPORATION ("Seller").
1. APPLICABILITY
The Buyers may, from time to time, upon the terms and conditions set forth
herein, agree to enter into transactions in which Seller transfers to the
related Buyer Eligible Loans against the transfer of funds by the related Buyer,
with a simultaneous agreement by the related Buyer to transfer to Seller such
Purchased Loans at a date certain, against the transfer of funds by Seller. Each
such transaction shall be referred to herein as a "Transaction", and, unless
otherwise agreed in writing, shall be governed by this Agreement.
2. DEFINITIONS AND INTERPRETATION
(a) Defined Terms.
"Accepted Servicing Practices" means with respect to any Loan, those mortgage
servicing practices (including collection procedures) of prudent mortgage
banking institutions which service mortgage loans of the same type as the Loans