Master Repurchase Agreement [Amendment No. 3] - Credit Suisse First Boston Mortgage Capital LLC and New Century Financial Corp.
AMENDMENT NO. 3 AND JOINDER
TO MASTER REPURCHASE AGREEMENT
Amendment No. 3, dated as of November 30, 2005 (this
"Amendment"), among CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC ("Buyer"),
NEW CENTURY MORTGAGE CORPORATION, NC CAPITAL CORPORATION, NC RESIDUAL II
CORPORATION, NEW CENTURY CREDIT CORPORATION, LOAN PARTNERS MORTGAGE, LTD.,
KINGSTON MORTGAGE COMPANY, LTD., COMPUFUND MORTGAGE COMPANY, LTD, WRT FINANCIAL
LIMITED PARTNERSHIP, PEACHTREE RESIDENTIAL MORTGAGE, L.P., RESIDENTIAL PRIME
LENDING LIMITED PARTNERSHIP, TEAM HOME LENDING, LTD., SUTTER BUTTES MORTGAGE,
L.P., MIDWEST HOME MORTGAGE LTD, AUSTIN MORTGAGE, L.P., CAPITAL PACIFIC HOME
LOANS, L.P., GOLDEN OAK MORTGAGE, L.P., NORTHWEST CAPITAL MORTGAGE, L.P.,
SCFINANCE, L.P., AD ASTRA MORTGAGE, LTD, HOME123 CORPORATION AND NEW CENTURY
MORTGAGE VENTURES, LLC (each a "Seller", and collectively, the "Sellers") and
NEW CENTURY FINANCIAL CORPORATION, the ("Guarantor").
RECITALS
New Century Mortgage Corporation, NC Capital Corporation, NC
Residual II Corporation, New Century Credit Corporation, Home123 Corporation
(the "Original Sellers"), Loan Partners Mortgage, LTD., Kingston Mortgage
Company, LTD., Compufund Mortgage Company, LTD, WRT Financial Limited
Partnership, Peachtree Residential Mortgage, L.P., Residential Prime Lending
Limited Partnership, Team Home Lending, LTD., Sutter Buttes Mortgage, L.P.,
Midwest Home Mortgage LTD, Austin Mortgage, L.P., Capital Pacific Home Loans,
L.P., Golden Oak Mortgage, L.P., Northwest Capital Mortgage, L.P., scFinance,
L.P., Ad Astra Mortgage, LTD, (the "Additional Sellers"), the Buyer, and the
Guarantor are parties to that certain Master Repurchase Agreement, dated as of
December 22, 2004, as amended by Amendment No. 1, dated as of August 26, 2005
and Amendment No. 2, dated as of September 2, 2005 (the "Existing Repurchase
Agreement", as amended by this Amendment, the "Repurchase Agreement"). The
Guarantor is a party to that certain Guaranty (the "Guaranty"), dated as of
December 22, 2004, as the same may be amended from time to time, by the
Guarantor in favor of Buyer. Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Existing Repurchase
Agreement and the Guaranty.
The Buyer, the Original Sellers, the Additional Sellers and the
Guarantor have agreed, subject to the terms and conditions of this Amendment,
that the Existing Master Repurchase Agreement be amended to permit New Century
Mortgage Ventures, LLC ("NCMV") to become an additional Original Seller under
the Existing Repurchase Agreement and to enter into Transactions with respect to
Mortgage Loans.
The Buyer, the Sellers and the Guarantor have agreed, subject to
the terms and conditions of this Amendment, that the Existing Repurchase
Agreement be amended to reflect
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certain agreed upon revisions to the terms of the Existing Repurchase Agreement.
As a condition precedent to amending the Existing Repurchase Agreement, the
Buyer has required the Guarantor to ratify and affirm the Guaranty on the date
hereof.
Accordingly, the Buyer, Sellers and Guarantor hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that the Existing Repurchase Agreement is hereby amended as follows:
Section 1. Agreement and Joinder with respect to NCMV. NCMV
hereby agrees to all of the provisions of the Existing Repurchase Agreement, and
effective on the date hereof, becomes a party to the Repurchase Agreement, as
Seller, with the same effect as if it were an original signatory to the Existing
Master Repurchase Agreement. Upon the execution and effectiveness of this
Amendment, all references to Seller in the Repurchase Agreement shall include
NCMV. In accordance with Section 9 of the Existing Master Repurchase Agreement,
NCMV hereby pledges to Buyer as security for the performance by NCMV of the
Obligations of NCMV and hereby grants, assigns and pledges to Buyer a fully
perfected first priority security interest in the Purchased Mortgage Loans of
NCMV, the related Records, and all related servicing rights, the Program
Agreements (to the extent such Program Agreements and NCMV's right thereunder
relate to the Purchased Mortgage Loans), any Property relating to such Purchased
Mortgage Loans, all insurance policies and insurance proceeds relating to such
Purchased Mortgage Loan or the related Mortgaged Property, including, but not
limited to, any payments or proceeds under any related primary insurance, hazard
insurance and, Income, the Collection Account, Interest Rate Protection
Agreements (which interest in the Interest Rate Protection Agreements shall be
pro rata and subject to rights of other parties holding security interests
therein) accounts (including any interest of Seller in escrow accounts) and any
other contract rights, instruments, payments, rights to payment (including
payments of interest or finance charges) general intangibles and other assets
relating to such Purchased Mortgage Loans (including, without limitation, any
other accounts) or any interest in the Purchased Mortgage Loans, and any
proceeds (including the related securitization proceeds) and distributions with
respect to any of the foregoing and any other property, rights, title or
interests as are specified on a Transaction Request and/or Trust Receipt and
Certification, in all instances, whether now owned or hereafter acquired, now
existing or hereafter created. Notwithstanding anything contained herein, in the
Repurchase Agreement or in any other document related thereto, NCMV shall be
liable solely for its individual and direct obligations as a Seller hereunder,
under the Repurchase Agreement and under any other document related thereto, and
no recourse shall be had against NCMV, individually or personally, as a
guarantor, surety or joint obligor, whether by levy or execution, or under any
law, or by the enforcement of any assessment or penalty or otherwise, for the
payment or performance of any other Seller's obligations hereunder, under the
Repurchase Agreement or under any other document related thereto.
Section 2. Definitions. Section 1 of the Existing Repurchase
Agreement is hereby amended by:
2.1 adding the following definition in its proper alphabetical
order:
""Third Amendment" means the Amendment No. 3, dated as of
November 30, 2005, to this Agreement."
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2.2 deleting the definition of "Additional Seller" in its
entirety and replacing it with the following definitions:
""Additional Seller" means Loan Partners Mortgage, LTD.,
Kingston Mortgage Company, LTD., Compufund Mortgage Company, LTD, WRT Financial
Limited Partnership, Peachtree Residential Mortgage, L.P., Residential Prime
Lending Limited Partnership, Team Home Lending, LTD., Sutter Buttes Mortgage,
L.P., Midwest Home Mortgage LTD, Austin Mortgage, L.P., Capital Pacific Home
Loans, L.P., Golden Oak Mortgage, L.P., Northwest Capital Mortgage, L.P.,
scFinance, L.P., Ad Astra Mortgage, LTD, and each such Seller's permitted
successors and assigns."
Section 3. Exhibits. Exhibit I to the Existing Repurchase
Agreement is hereby amended by deleting it in its entirety and replacing it with
Exhibit A hereto.
Section 4. Conditions to All Transactions. NCMV shall deliver
the following before it shall be permitted to enter into a Transaction
hereunder:
(a) A favorable written opinion of counsel (which shall include,
without limitation, creation and perfection of the security interests
created herein, corporate and enforceability opinions related to the
execution of the Third Amendment);
(b) A good standing certificate and certified copies of the
charter and by-laws (or equivalent documents) and of all corporate or
other authority with respect to the execution, delivery and performance
of the Third Amendment and this Agreement and each other document to be
delivered by it from time to time in connection herewith (and the Buyer
may conclusively rely on such certificate until it receives notice in
writing to the contrary);
(c) Evidence that all other actions necessary, or in the opinion
of Buyer, desirable to perfect and protect Buyer's interest in the
Purchased Mortgage Loans and other Repurchase Assets have been taken,
including, without limitation, UCC searches and duly authorized and
filed Uniform Commercial Code financing statements on Form UCC-1 with
respect to the Additional Sellers;
(d) Amendment No. 1 and Joinder to the Collection Account
Control Agreement, executed and delivered by duly authorized officers of
the Buyer, Sellers and Union Bank of California, N.A.;
(e) Amendment No. 1 and Joinder to the Intercreditor Agreement,
executed and delivered by the Sellers, Bank of America, N.A., Buyer, DB
Structured Products, Inc, Aspen Funding Corp., Newport Funding Corp. and
Gemini Securitization Corp., LLC; and
(f) Amendment No. 1 and Joinder to the Electronic Tracking
Agreement, executed and delivered by duly authorized officers of the
Sellers, MERSCORP, Inc., Mortgage Electronic Registration Systems, Inc.
and the Buyer.
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Section 5. Conditions Precedent. This Amendment shall become
effective as of November 30, 2005 (the "Amendment Effective Date"), subject to
the satisfaction of the following conditions precedent:
5.1 Delivered Documents. On the date hereof, the Buyer shall
have received the following documents, each of which shall be satisfactory to
the Buyer in form and substance:
(a) this Amendment, executed and delivered by the Guarantor and
duly authorized officers of the Buyer and the Sellers;
(b) Amendment No. 4 and Joinder to the Pricing Side Letter,
executed and delivered by duly authorized officers of the Buyer, the
Sellers and the Guarantor;
(c) Amendment No. 1 and Joinder to the Custodial Agreement,
executed and delivered by duly authorized officers of the Sellers, Buyer
and U.S. Bank National Association;
(d) Amendment No. 1 and Joinder to the Funding Account Control
Agreement, executed and delivered by duly authorized officers of the
Sellers, Buyer and U.S. Bank National Association; and
(e) such other documents as the Buyer or counsel to the Buyer
may reasonably request. Section 6. Representations and Warranties.
6.1 Each Seller hereby represents and warrants to the Buyer that
it is in compliance with all the terms and provisions set forth in the Existing
Repurchase Agreement on its part to be observed or performed, and that no Event
of Default has occurred or is continuing, and hereby confirms and reaffirms the
representations and warranties contained in Section 14 of the Existing
Repurchase Agreement (except to the extent that such representation or warranty
expressly relates to an earlier date).
6.2 In addition, NCMV makes the following representation and
warranty as of the Amendment Effective Date, and as of each Purchase Date: 6.3
"Chief Executive Office/Jurisdiction of Organization. NCMV's chief executive
office is, and has been, located at 18400 Von Karman, Suite 1000, Irvine, CA
92612. NCMV is a limited liability company duly organized, validly existing and
in good standing under the laws of the State of Delaware."
Section 7. Joint and Several Obligations. Each of the Sellers
and Buyer hereby acknowledge and agree that the Original Sellers are each
jointly and severally liable to Buyer for all of their and the Additional
Sellers' and NCMV's respective representations, warranties and covenants
hereunder and under the Repurchase Agreement. The Original Sellers hereby
unconditionally and irrevocably guarantee to the Buyer the prompt and complete
payment and performance by the Additional Sellers and NCMV when due (whether at
the stated maturity, by acceleration or otherwise) of their Obligations
hereunder.
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Each Original Seller waives any and all notice of the creation,
renewal, extension or accrual of any of the Additional Sellers' or NCMV's
Obligations hereunder and notice of or proof of reliance by the Buyer upon this
guaranty or acceptance of this guaranty; the Additional Sellers' or NCMV's
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived in reliance upon
this guaranty; and all dealings between the Original Sellers, NCMV or the
Additional Sellers, on the one hand, and the Buyer, on the other, shall likewise
be conclusively presumed to have been had or consummated in reliance upon this
guaranty. Each Original Seller waives diligence, presentment, protest, demand
for payment and notice of default or nonpayment to or upon the Additional
Sellers and NCMV or this guaranty with respect to the Additional Sellers' and
NCMV's Obligations. This guaranty shall be construed as a continuing, absolute
and unconditional guarantee of payment without regard to (i) the validity or
enforceability of the Repurchase Agreement, the other Program Agreements, any of
the Additional Sellers' or NCMV's Obligations or any collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Buyer, (ii) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by the Additional Sellers or NCMV against the Buyer,
or (iii) any other circumstance whatsoever (with or without notice to or
knowledge of the Additional Sellers, NCMV or the Original Sellers) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Additional Sellers or NCMV for their Obligations, or of the
Original Sellers under this guaranty, in bankruptcy or in any other instance.
When pursuing its rights and remedies hereunder against the Original Sellers,
the Buyer may, but shall be under no obligation, to pursue such rights and
remedies that they may have against the Additional Sellers, NCMV or any other
Person or against any collateral security or guarantee for the Additional
Sellers' or NCMV's Obligations or any right of offset with respect thereto, and
any failure by the Buyer to pursue such other rights or remedies or to collect
any payments from Additional Sellers or NCMV or any such other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Original Sellers or any such other Person
or any such collateral security, guarantee or right of offset, shall not relieve
the Original Sellers of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of the Buyer against the Original Sellers. This guaranty shall remain in
full force and effect and be binding in accordance with and to the extent of its
terms upon the Original Sellers and their successors and assigns thereof, and
shall inure to the benefit of the Buyer, and successors, indorsees, transferees
and assigns, until all of each Additional Seller's and NCMV's Obligations and
the obligations of each Original Seller under this guaranty and the Repurchase
Agreement shall have been satisfied by payment in full, notwithstanding that
from time to time during the term of the Repurchase Agreement the Additional
Sellers and NCMV may be free from any Obligations.
Section 8. Limited Effect. Except as expressly amended and
modified by this Amendment, the Existing Repurchase Agreement shall continue to
be, and shall remain, in full force and effect in accordance with its terms.
Section 9. Counterparts. This Amendment may be executed by each
of the parties hereto on any number of separate counterparts, each of which
shall be an original and all of which taken together shall constitute one and
the same instrument.
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SECTION 10. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 11. Reaffirmation of Guaranty. The Guarantor hereby
ratifies and affirms all of the terms, covenants, conditions and obligations of
the Guaranty and acknowledges and agrees that such Guaranty shall apply to all
of the Obligations under the Repurchase Agreement, as it may be amended,
modified and in effect, from time to time.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
CREDIT SUISSE FIRST BOSTON MORTGAGE
CAPITAL LLC, AS BUYER
By: /s/ Bruce S. Kaiserman
---------------------------------
Name: Bruce S. Kaiserman
Title: Vice President
NEW CENTURY MORTGAGE CORPORATION, AS
SELLER
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
NC CAPITAL CORPORATION, AS SELLER
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: President
NC RESIDUAL II CORPORATION, AS SELLER
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
NEW CENTURY CREDIT CORPORATION, AS
SELLER
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
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LOAN PARTNERS MORTGAGE, LTD, AS SELLER
By: Capital Standard Origination
Company,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
KINGSTON MORTGAGE COMPANY, LTD., AS
SELLER
By: CSOC XI, INC.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
COMPUFUND MORTGAGE COMPANY, LTD, AS
SELLER
By: CSOC XIV, INC.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
WRT FINANCIAL LIMITED PARTNERSHIP, AS
SELLER
By: CSOC XXIII, INC.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
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PEACHTREE RESIDENTIAL MORTGAGE, L.P., AS
SELLER
By: CSOC XXV, INC.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
RESIDENTIAL PRIME LENDING LIMITED
PARTNERSHIP, AS SELLER
By: CSOC XXVII, INC.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
TEAM HOME LENDING LTD, AS SELLER
By: CSOC XXXII, INC.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
SUTTER BUTTES MORTGAGE LP, AS SELLER
By: CSOC XXXVIII, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
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MIDWEST HOME MORTGAGE LTD, AS SELLER
By: CSOC XXXVII, Inc.
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
AUSTIN MORTGAGE, L.P., AS SELLER
By: RBC GP I, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
CAPITAL PACIFIC HOME LOANS, L.P., AS
SELLER
By: RBC GP II, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
GOLDEN OAK MORTGAGE, LP, AS SELLER
By: RBC GP III, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
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NORTHWEST CAPITAL MORTGAGE LP, AS SELLER
By: RBC GP IV, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
SCIFINANCE LP, AS SELLER
By: RBC GP VI, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
AD ASTRA MORTGAGE LTD, AS SELLER
By: RBC GP IX, Inc.,
Its General Partner
/s/ Brad A. Morrice
-----------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
HOME123 CORPORATION, AS SELLER
/s/ Brad A. Morrice
----------------------------------------
Name: Brad A. Morrice
Title: Chairman of the Board
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NEW CENTURY MORTGAGE VENTURES, LLC, AS
SELLER
By: /s/ Stergios Theologides
---------------------------------
Name: Stergios Theologides
Title: Executive Vice President
NEW CENTURY FINANCIAL CORPORATION, as
Guarantor
By: /s/ Kevin Cloyd
---------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
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