EXHIBIT 10.122(a)
AMENDMENT NO. 1
TO MASTER REPURCHASE AGREEMENT
Amendment No. 1, dated as of February 23, 2006 (this
"Amendment"), to that certain Master Repurchase Agreement, dated as of December
12, 2005 (the "Existing Repurchase Agreement"; as modified hereby and as further
amended, restated, supplemented or otherwise modified and in effect from time to
time, the "Repurchase Agreement"), by and among NC Capital Corporation, New
Century Mortgage Corporation, NC Asset Holding, L.P. (successor by conversion to
NC Residual II Corporation), Home123 Corporation and New Century Credit
Corporation (collectively, the "Sellers", each, a "Seller"), Xxxxxx Xxxxxxx Bank
("MSB") and Xxxxxx Xxxxxxx Mortgage Capital Inc. ("MSMCI", together with MSB,
collectively, the "Buyers", each, a "Buyer", and as the agent for the Buyers, in
such capacity, the "Agent"). Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Existing Repurchase
Agreement.
RECITALS
The Sellers, the Buyers and the Agent are parties to the
Existing Repurchase Agreement.
The Sellers, the Buyers and the Agent have agreed, subject to
the terms and conditions hereof, that the Existing Repurchase Agreement shall be
modified as set forth in this Amendment.
Now, therefore, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Sellers, the Buyers and the Agent hereby agree as follows:
SECTION 1. Consent.
1.1 Effective as of December 28, 2005, the Buyers hereby consent
to the conversion of NC Residual into a Delaware limited partnership known as NC
Asset Holding, L.P.
SECTION 2. Amendments.
2.1 Effective as of December 28, 2005, the representation and
warranty set forth in Section 6.01 of Article VI to the Existing Repurchase
Agreement is hereby deleted in its entirety and the following new Section 6.01
is inserted in lieu thereof:
"Section 6.01 Existence. Each Seller (a) is a
corporation or limited partnership duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization,
(b) has all requisite corporate or other power, and has all governmental
licenses, authorizations, consents and approvals necessary to own its
assets
and carry on its business as now being or as proposed to be conducted,
except where the lack of such licenses, authorizations, consents and
approvals would not be reasonably likely to have a Material Adverse
Effect, and (c) is qualified to do business and is in good standing in
all other jurisdictions in which the nature of the business conducted by
it makes such qualification necessary, except where failure so to
qualify would not be reasonably likely (either individually or in the
aggregate) to have a Material Adverse Effect."
2.2 The covenant set forth in Section 7.04 of Article VII to the
Existing Repurchase Agreement is hereby deleted in its entirety and the
following new Section 7.04 is inserted in lieu thereof:
"Section 7.04 Prohibition of Fundamental Changes. No
Seller shall enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation, winding up or dissolution) or sell all or substantially all
of its assets; provided, that each Seller may merge or consolidate with
(a) any wholly owned subsidiary of such Seller or (b) any other Person
if such Seller is the surviving entity and such Seller's Net Worth would
not be affected by such merger or consolidation and provided further,
that if after giving effect thereto, no Default or Event of Default
would exist hereunder."
2.3 The representation and warranty set forth in clause (t) of
Schedule 1 to the Existing Repurchase Agreement is hereby deleted in its
entirety and the following new clause (t) is inserted in lieu thereof:
"(t) LTV; CLTV. No Purchased Loan that is secured by a
first mortgage lien on the Mortgaged Property has an LTV greater than
95%, other than Eligible Mortgage Loans which are secured by a first
mortgage lien on a Mortgaged Property that (i) have an LTV greater than
95% and equal to or less than 100% and (ii) have a minimum FICO Score of
600; provided, the aggregate unpaid principal balance of all such
Purchased Loans shall at no time exceed 3% of the Maximum Amount. No
Purchased Loan that is secured by a second mortgage lien on the
Mortgaged Property has a CLTV greater than 100%."
2.4 All references to "NC Residual II Corporation" in the
Existing Repurchase Agreement, including the schedules, exhibits and attachments
thereto, in any Repurchase Document or in any ancillary documents related to the
Transactions contemplated by the Repurchase Documents are hereby deleted and
replaced with equivalent references to "NC Asset Holding, L.P."
SECTION 3. Conditions Precedent. This Amendment shall become
effective on the first date (the "Amendment Effective Date") on which all of the
following conditions precedent shall have been satisfied:
3.1 Delivered Documents. On the Amendment Effective Date, the
Agent shall have received all of the following documents, each of which shall be
satisfactory to the Agent in form and substance:
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(a) Amendment. This Amendment, executed and delivered by a duly
authorized officer of each of the Sellers, the Buyers and the Agent;
(b) Secretary's Certificate. A Secretary's Certificate, executed
and delivered by the duly authorized secretary or assistant secretary of NC
Deltex, LLC, general partner of NC Asset Holding, L.P., dated as of the date
hereof, and
(i) attaching a true, correct and complete copy of the
resolutions of the Board of Directors of NC Residual II Corporation authorizing
the conversion of such corporation into NC Asset Holding, L.P.,
(ii) attaching a true, correct and complete copy of the
certificate of conversion to limited partnership of NC Residual II Corporation,
(iii) attaching true, correct and complete copies of the
certificate of limited partnership of NC Asset Holding, L.P. and the certificate
of formation of NC Deltex, LLC,
(iv) attaching true, correct and complete copies of the
limited partnership agreement of NC Asset Holding, L.P. and the operating
agreement of NC Deltex, LLC,
(v) certifying as to the incumbency and specimen
signature of each officer of NC Capital Corporation (in its capacity as the sole
member and manager of NC Deltex, LLC, which in turn is the general partner of NC
Asset Holding, L.P.) authorized to execute each of the Repurchase Documents to
which NC Asset Holding, L.P. is a party, and
(vi) attaching certificates dated as of a recent date
from the Secretary of State or other appropriate authority, evidencing the good
standing of each of NC Asset Holding, L.P. and NC Deltex, LLC in the
jurisdiction of its organization.
(c) Legal Opinions. Legal opinions of counsel to Sellers
regarding NC Asset Holding, L.P. in form and content reasonably satisfactory to
Buyer.
(d) Other Documents. Such other documents as the Agent or
counsel to the Agent may reasonably request.
3.2 No Default. On the Amendment Effective Date, (i) each Seller
shall be in compliance with all of the terms and provisions set forth in the
Existing Repurchase Agreement on its part to be observed or performed, (ii) all
of the representations and warranties made and restated by each Seller pursuant
to Section 3 of this Amendment shall be true and complete on and as of such date
with the same force and effect as if made on and as of such date and (iii) no
Default or Event of Default shall have occurred and be continuing on such date.
SECTION 4. Representations and Warranties. Each Seller hereby
represents and warrants to the Agent and the Buyers that it is in compliance
with all of the terms and provisions set forth in the Repurchase Documents on
its part to be observed or performed and that no Default or Event of Default has
occurred or is continuing. Each Seller hereby confirms
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and reaffirms the representations and warranties contained in Section 6 of the
Repurchase Agreement.
SECTION 5. Limited Effect. Except as expressly 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; provided,
however, that upon the Amendment Effective Date, all references therein and
herein to the "Repurchase Documents" shall be deemed to include, in any event,
this Amendment and each reference to the Repurchase Agreement in any of the
Repurchase Documents shall be deemed to be a reference to the Existing
Repurchase Agreement as modified hereby.
SECTION 6. 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. Delivery of an executed signature page of this Amendment in
Portable Document Format (PDF) or by facsimile transmission shall be effective
as delivery of an executed original counterpart of this Amendment.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
SELLERS
NC CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Executive Vice President
NC ASSET HOLDING, L.P.
By: NC Deltex, LLC, its general partner
By: NC Capital Corporation, its sole
member and manager
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: President
HOME123 CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Executive Vice President
NEW CENTURY CREDIT CORPORATION
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: President
XXXXXX XXXXXXX BANK,
as a Buyer
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Vice President
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
as a Buyer and as the Agent
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
The Guarantor hereby joins in the execution of this Amendment
for the purpose of consenting to the terms hereof and the transactions
contemplated hereby and for the purpose of agreeing that the Guarantee executed
by the Guarantor in favor of the Buyers is, and continues to be, the legal,
valid and binding obligation of the Guarantor enforceable against the Guarantor
in accordance with its terms without any defense, deductions, offsets or
counterclaims of any nature.
NEW CENTURY FINANCIAL CORPORATION, as
Guarantor
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Vice Chairman, President and
Chief Operating Officer
