Master Repurchase Agreement [Amendment No. 2] - New Century Funding A and Bank of America NA
AMENDMENT NUMBER TWO
to
Amended and Restated Master Repurchase Agreement dated as
of May 13, 2002, amended and restated to and including May 21, 2004
between
NEW CENTURY FUNDING A, a Delaware statutory trust, as Seller
and
BANK OF AMERICA, N.A., as Buyer
This AMENDMENT NUMBER TWO (this "Amendment Number Two") is made and is
effective as of this 5th day of May 2005 (the "Effective Date") between NEW
CENTURY FUNDING A, a Delaware statutory trust ("Seller") and BANK OF AMERICA,
N.A., a national banking association ("Buyer").
RECITALS
A. Seller and Buyer entered into that certain Amended and
Restated Master Repurchase Agreement dated as of May 13, 2002, amended and
restated to and including May 21, 2004 (as amended, supplemented or otherwise
modified from time to time, the "Master Repurchase Agreement").
B. Seller has requested that Buyer further modify the Master
Repurchase Agreement to extend the term thereof and make such other
modifications to the Master Repurchase Agreement set forth herein and Buyer has
agreed to make such modifications to the Master Repurchase Agreement subject to
the terms of this Amendment Number Two.
C.Seller and Buyer each have agreed to execute and deliver this
Amendment Number Two on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Master Repurchase Agreement, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree to
the following:
1. Miscellaneous. For all purposes of this Amendment Number Two,
except as otherwise expressly provided or unless the context otherwise requires,
(a) unless otherwise defined herein, all capitalized terms used herein shall
have the meanings attributed to them by the Master Repurchase Agreement, (b) the
capitalized terms expressly defined in this Amendment Number Two have the
meanings assigned to them in this Amendment Number Two and include (i) all
genders and (ii) the plural as well as the singular, (c) all references to words
such as "herein", "hereof" and the like shall refer to this Amendment Number Two
as a whole and not to any particular article or section within this Amendment
Number Two, (d) the term "include" and all variations thereon shall mean
"include without limitation", and (e) the term "or" shall include "and/or".
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2. Amendments. Effective as of the Effective Date, Section 27 of
the Master Repurchase Agreement is modified by deleting the section in its
entirety and replacing it with the following:
27. TERMINATION
This Agreement shall remain in effect until the earlier
of (i) July 8, 2005 or (ii) at Buyer's option upon the
occurrence of an Event of Default (such date, the "Termination
Date"). However, no such termination shall affect Seller's
outstanding obligations to Buyer at the time-of such
termination. Seller's obligations to indemnify Buyer pursuant to
this Agreement shall survive the termination hereof.
3. No Other Changes. Except as expressly modified or amended in
this Amendment Number Two, all of the terms, covenants, provisions, agreements
and conditions of the Master Repurchase Agreement are hereby ratified and
confirmed in every respect and shall remain unmodified and unchanged and shall
continue in full force and effect.
4. Representations. In order to induce the Buyer to execute and
deliver this Amendment Number Two, the Seller hereby represents to the Buyer
that as of the date hereof, after giving effect to this Amendment Number Two,
the Seller is in full compliance with all of the terms and conditions of the
Master Repurchase Agreement and no default or Event of Default has occurred and
is continuing under the Master Repurchase Agreement.
5. Counterparts. This Amendment Number Two may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute one and the same instrument.
6. Governing Law; Waiver of Jury Trial. This Amendment Number
Two shall be governed by, and construed in accordance with, the laws of the
State of New York, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without regard to
conflicts of laws principles. The parties hereto each hereby waive the right of
trial by jury in any litigation arising hereunder.
7. Miscellaneous. It is expressly understood and agreed by the
parties hereto that (a) this Amendment is executed and delivered by Christiana
Bank & Trust Company, not individually or personally, but solely as trustee of
the Seller, in the exercise of the powers and authority conferred and vested in
it, (b) each of the representations, undertakings and agreements herein made on
the part of the Seller is made and intended not as a personal representation,
undertaking and agreement by Christiana Bank & Trust Company but is made and
intended for the purpose for binding only the Seller, (c) nothing herein
contained shall be construed as creating any liability on the Christiana Bank &
Trust Company, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and by any Person claiming by, through or
under the parties hereto and (d) under no circumstances shall the Christiana
Bank & Trust Company be
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personally liable for the payment of any indebtedness or expenses of the Seller
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Seller under this Amendment or
any other related documents.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Amendment Number Two to Master Repurchase
Agreement as of the date first above written.
NEW CENTURY FUNDING A
By: Christiana Bank & Trust Company, not
in its individual capacity but
solely as owner trustee
By: /s/ James M. Young
------------------------------------
Name: James M. Young
Title: Assistant Vice President
BANK OF AMERICA, N.A.
By: /s/ Christopher G. Young
------------------------------------
Name: Christopher G. Young
Title: Vice President
Acknowledged and Agreed:
NEW CENTURY MORTGAGE CORPORATION,
as Guarantor
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
NEW CENTURY FINANCIAL CORPORATION,
as Guarantor
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President