Master Repurchase Agreement [Amendment No. 4] - Credit Suisse First Boston Mortgage Capital LLC, New Century Mortgage Corp., NC Capital Corp., NC Asset Holding LP, New Century Credit Corp., Loan Partners Mortgage Ltd., Kingston Mortgage Co. Ltd., Compufund Mortgage Co. Ltd., WRT Financial Limited Partnership, Peachtree Residential Mortgage LP, Residential Prime Lending LP, Team Home Lending Ltd., Sutter Buttes Mortgage LP, Midwest Home Mortgage Ltd., Austin Mortgage LP, Capital Pacific Home Loans LP, Golden Oak Mortgage LP, Northwest Capital Mortgage LP, SCFinance LP, Ad Astra Mortgage Ltd., Home123 Corp., New Century Mortgage Ventures LLC and New Century FInancial Corp.
AMENDMENT NO. 4
TO MASTER REPURCHASE AGREEMENT
Amendment No. 4, dated as of December 30, 2005 (this
"Amendment"), among CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC ("Buyer"),
NEW CENTURY MORTGAGE CORPORATION, NC CAPITAL CORPORATION, NC ASSET HOLDING,
L.P., 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
The 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, Amendment No. 2, dated as of
September 2, 2005 and Amendment No. 3, dated as of November 30, 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 Sellers and the Guarantor have agreed, subject to
the terms and conditions of this Amendment, that the Existing Repurchase
Agreement be amended to reflect 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. Definitions. Section 1 of the Existing Repurchase
Agreement is hereby amended by:
1.1 adding the following definitions in their proper
alphabetical order:
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""Aged Loan" means a Mortgage Loan which has been subject to a
Transaction hereunder for a period of greater than 120 days but not greater than
180 days."
""Buydown Amount" has the meaning set forth in Section 5(c)
hereof."
""Forty-Year Mortgage Loan" shall mean a fully amortizing
Mortgage Loan which has an original term to maturity of not more than forty
years from the origination date."
""OFAC" has the meaning set forth in Section 14(a)(28) hereof."
""Original Seller" means New Century Mortgage Corporation, NC
Capital Corporation, NC Asset Holding, L.P., New Century Credit Corporation,
Home123 Corporation, New Century Mortgage Ventures, LLC, and each such Seller's
permitted successors and assigns."
""Prohibited Person" has the meaning set forth in Section
14(a)(28) hereof."
1.2 deleting the definition of "Mortgage Loan" in its entirety
and replacing it with the following language:
""Mortgage Loan" means any Forty-Year Mortgage Loan, Co-op Loan,
Sub-Prime Mortgage Loan, Exception Mortgage Loan, Jumbo Mortgage Loan, Alt A
Mortgage Loan, Second Lien Mortgage Loan, HELOC or Conforming Mortgage Loan
which is a fixed or floating-rate, one-to-four-family residential mortgage or
home equity loan evidenced by a promissory note and secured by a mortgage, which
satisfies the requirements set forth in the Underwriting Guidelines and Section
14(b) hereof; provided, however, that, except as expressly approved in writing
by Buyer, Mortgage Loans shall not include any "high-LTV" loans (i.e., a
mortgage loan having a loan-to-value ratio in excess of 100% (or with respect to
High CLTV Mortgage Loans, 105%) or in excess of such lower percentage set forth
in the Underwriting Guidelines or with respect to Second Lien Mortgage Loans, a
combined loan-to value ratio in excess of the lower of (i) the percentage
specified in the Underwriting Guidelines or (ii) 100% or, with respect to High
CLTV Mortgage Loans, 105%) or any High Cost Mortgage Loans and; provided,
further, that the origination date with respect to such Mortgage Loan is no
earlier than thirty (30) days prior to the related Purchase Date."
Section 2. Price Differential. Section 5 of the Existing
Repurchase Agreement is hereby amended by adding the following subsection (c)
thereto:
"c. Sellers may remit to Buyer funds in $100,000 increments up
to the outstanding Purchase Price, to be held as unsegregated cash margin and
collateral for all Obligations under the Repurchase Agreement (such amount, to
the extent not applied to Obligations under the Repurchase Agreement, the
"Buydown Amount"). The Buydown Amount shall be used by Buyer in order to
calculate the Price Differential, which will accrue on the Purchase Price then
outstanding minus the Buydown Amount, applied to Transactions involving the
lowest Pricing Rate. The Sellers shall be entitled to request a drawdown of the
Buydown Amount or remit additional funds to be added to the Buydown Amount in
increments of $100,000 no more than one time per week with forty-eight (48)
hours notice. Without limiting the generality of the foregoing, in the event
that a Margin Call or other Default exists, the Buyer
<PAGE>
shall be entitled to use any or all of the Buydown Amount to cure such
circumstance or otherwise exercise remedies available to the Buyer without prior
notice to, or consent from, the Sellers."
Section 3. Security Interest. Section 9 of the Existing
Repurchase Agreement is hereby amended by deleting it in its entirety and
replacing it with the following language:
"9. SECURITY INTEREST.
Although the parties intend that all Transactions hereunder be
sales and purchases and not loans, in the event any such Transactions are deemed
to be loans, each Seller hereby pledges to Buyer as security for the performance
by Sellers of the Obligations and hereby grants, assigns and pledges to Buyer a
fully perfected first priority security interest in the Purchased Mortgage
Loans, the Records, and all related servicing rights, the Program Agreements (to
the extent such Program Agreements and Seller's right thereunder relate to the
Purchased Mortgage Loans), any Property relating to the Purchased Mortgage
Loans, all insurance policies and insurance proceeds relating to any 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, the Buydown Amount and any account to which
such amount is deposited, 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 the 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
(collectively, the "Repurchase Assets"). Sellers agree to execute, deliver
and/or file such documents and perform such acts as may be reasonably necessary
to fully perfect Buyer's security interest created hereby. Furthermore, the
Sellers hereby authorize the Buyer to file financing statements relating to the
Repurchase Assets, as the Buyer, at its option, may deem appropriate. The
Sellers shall pay the filing costs for any financing statement or statements
prepared pursuant to this Section."
Section 4. Representations and Warranties. Section 14(a) of the
Existing Repurchase Agreement is hereby amended by adding the following clause
(28) to the end thereof:
"(28) No Prohibited Persons. Neither any Seller nor any of its
Affiliates, officers, directors, partners or members, is an entity or person (or
to any Seller's knowledge, owned or controlled by an entity or person): (i) that
is listed in the Annex to, or is otherwise subject to the provisions of
Executive Order 13224 issued on September 24, 2001 ("EO13224"); (ii) whose name
appears on the United States Treasury Department's Office of Foreign Assets
Control ("OFAC") most current list of "Specifically Designated National and
Blocked Persons" (which list may be published from time to time in various
mediums including, but not limited to, the OFAC website,
http:www.treas.gov/ofac/t11sdn.pdf); (iii) who commits, threatens to commit or
<PAGE>
supports "terrorism", as that term is defined in EO13224; or (iv) who is
otherwise affiliated with any entity or person listed above (any and all parties
or persons described in clauses (i) through (iv) above are herein referred to as
a "Prohibited Person")."
Section 5. Covenants. Section 15 to the Existing Repurchase
Agreement is hereby amended by deleting subsections (b) and (c) in their
entirety and replacing them with the following language:
"(b). Indebtedness to Adjusted Tangible Net Worth Ratio. The
Guarantor, on a consolidated basis, shall maintain at all times a ratio of
Indebtedness (excluding all Non-Recourse Debt) to Adjusted Tangible Net Worth of
not greater than 12:1.
"(c). Maintenance of Liquidity. The Guarantor, on a consolidated
basis, shall ensure that, at all times, it has Cash Equivalents in an amount not
less than the greater of (i) $60,000,000 and (ii) 1.5% of loans held for sale on
Guarantor's consolidated balance sheet."
Section 6. Intent. Section 27 of the Existing Repurchase
Agreement is hereby amended by adding subsection (e) thereto with the following:
"e. This Agreement is intended to be a "repurchase agreement"
and a "securities contract," within the meaning of Section 555 and Section 559
under the Bankruptcy Code."
Section 7. Documents Mutually Drafted. The Existing Repurchase
Agreement is hereby amended by adding after Section 39 the following Section 40:
"40. DOCUMENTS MUTUALLY DRAFTED
The Sellers and the Buyer agree that this Agreement each other
Program Agreement prepared in connection with the Transactions set forth herein
have been mutually drafted and negotiated by each party, and consequently such
documents shall not be construed against either party as the drafter thereof."
Section 8. Schedules. Schedule 1 to the Existing Repurchase Agreement is hereby
amended by deleting subsections (r) and (vv) in their entirety and replacing
them with the following language:
"(r) Origination; Payment Terms. The Mortgage Loan was
originated by or in conjunction with a mortgagee approved by the Secretary of
Housing and Urban Development pursuant to Sections 203 and 211 of the National
Housing Act, a savings and loan association, a savings bank, a commercial bank,
credit union, insurance company or similar banking institution which is
supervised and examined by a federal or state authority. Other than with respect
to HELOCs, principal and/or interest payments on the Mortgage Loan commenced no
more than 60 days after funds were disbursed in connection with the Mortgage
Loan. The Mortgage Interest Rate is adjusted, with respect to adjustable rate
Mortgage Loans, on each Interest Rate Adjustment Date to equal the Index plus
the Gross Margin (rounded up or down to the nearest .125%), subject to the
Mortgage Interest Rate Cap. Other than with respect to a HELOC, or the Credit
Line Agreement with respect to a HELOC, the Mortgage Note is payable on the
first day of each month in equal monthly installments of principal and/or
interest (subject to a "balloon"
<PAGE>
payment in the case of Balloon Loans or an "interest only" period in the case of
Interest Only Loans), which installments of interest, with respect to adjustable
rate Mortgage Loans are subject to change on the Interest Rate Adjustment Date
and with respect to Interest Only Loans are subject to change on the Interest
Only Adjustment Date, and due to the adjustments to the Mortgage Interest Rate
on each Interest Rate Adjustment Date, with interest calculated and payable in
arrears, sufficient to amortize the Mortgage Loan fully by the stated maturity
date, over an original term of not more than 30 years from commencement of
amortization (except with respect to any Forty-Year Mortgage Loans). With
respect to HELOCs, the related Mortgagor may request advances up to the Credit
Limit within the first ten years following the date of origination. Each HELOC
will amortize within 30 years from the date of origination. The Due Date of the
first payment under the Mortgage Note is no more than 60 days from the date of
the Mortgage Note. The Mortgage Note is payable in Dollars."
"(vv). Aging. Such Purchased Mortgage Loan has not been subject
to a Transaction hereunder for more than 180 days."
Section 9. Exhibits. Exhibit D to the Repurchase Agreement is
hereby deleted in its entirety and replaced with Exhibit A attached hereto.
Section 10. Conditions Precedent. This Amendment shall become
effective as of December 30, 2005 (the "Amendment Effective Date"), subject to
the satisfaction of the following conditions precedent:
10.1 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. 5 to the Pricing Side Letter, executed and
delivered by duly authorized officers of the Buyer, the Sellers and the
Guarantor; and
(c) such other documents as the Buyer or counsel to the Buyer
may reasonably request.
Section 11. Representations and Warranties. 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).
Section 12. Joint and Several Obligations. Each of the Sellers
and Buyer hereby acknowledge and agree that Sellers are each jointly and
severally liable to Buyer for all of their respective representations,
warranties and covenants hereunder and under the Repurchase Agreement.
<PAGE>
Section 13. 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 14. 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.
SECTION 15. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 16. 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]
<PAGE>
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/ Randall Eron Shy
---------------------------------
Name: Randall Eron Shy
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 ASSET HOLDING, L.P., AS SELLER
By: NC Deltex, LLC,
Its General Partner
By: NC Capital Corporation
Its Sole Member
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: President
NEW CENTURY CREDIT CORPORATION, AS
SELLER
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
<PAGE>
LOAN PARTNERS MORTGAGE, LTD, AS SELLER
By: Capital Standard Origination
Company,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
KINGSTON MORTGAGE COMPANY, LTD., AS
SELLER
By: CSOC XI, INC.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
COMPUFUND MORTGAGE COMPANY, LTD, AS
SELLER
By: CSOC XIV, INC.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
WRT FINANCIAL LIMITED PARTNERSHIP, AS
SELLER
By: CSOC XXIII, INC.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
<PAGE>
PEACHTREE RESIDENTIAL MORTGAGE, L.P., AS
SELLER
By: CSOC XXV, INC.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
RESIDENTIAL PRIME LENDING LIMITED
PARTNERSHIP, AS SELLER
By: CSOC XXVII, INC.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
TEAM HOME LENDING LTD, AS SELLER
By: CSOC XXXII, INC.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
SUTTER BUTTES MORTGAGE LP, AS SELLER
By: CSOC XXXVIII, Inc.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
<PAGE>
MIDWEST HOME MORTGAGE LTD, AS SELLER
By: CSOC XXXVII, Inc.
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
AUSTIN MORTGAGE, L.P., AS SELLER
By: RBC GP I, Inc.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
CAPITAL PACIFIC HOME LOANS, L.P., AS
SELLER
By: RBC GP II, Inc.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
GOLDEN OAK MORTGAGE, LP, AS SELLER
By: RBC GP III, Inc.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
<PAGE>
NORTHWEST CAPITAL MORTGAGE LP, AS SELLER
By: RBC GP IV, Inc.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
SCIFINANCE LP, AS SELLER
By: RBC GP VI, Inc.,
Its General Partner
/s/ Stergios Theologides
-----------------------------------
Name: Stergios Theologides
Title: Executive Vice President
AD ASTRA MORTGAGE LTD, AS SELLER
By: RBC GP IX, Inc.,
Its General Partner
/s/ Stergios Theologides
------------------------------------
Name: Stergios Theologides
Title: Executive Vice President
HOME123 CORPORATION, AS SELLER
By: /s/ Kevin Cloyd
------------------------------------
Name: Kevin Cloyd
Title: Executive Vice President
<PAGE>
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/ Stergios Theologides
----------------------------------
Name: Stergios Theologides
Title: Executive Vice President