Exhibit 10.69
SALOMON BROTHERS REALTY CORP.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
November 30, 2000
NC Capital Corporation
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxxx
President
New Century Mortgage Corporation
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxxx
Chief Executive Officer
Ladies and Gentlemen:
This letter agreement (the "Letter Agreement") confirms the understanding
and agreements among NC Capital Corporation ("NCCC"), New Century Mortgage
Corporation ("New Century") and Salomon Brothers Realty Corp. ("SBRC"), under
the terms set forth herein, regarding SBRC's agreement to provide a financing
line (the "Financing Line") to NCCC in connection with certain adjustable-rate
and fixed-rate, first lien and second lien mortgage loans that are originated by
New Century (the "Mortgage Loans").
1. Mortgage Loans.
(a) In General. SBRC agrees to make available to NCCC and New
Century the Financing Line from November 30, 2000 until May 31, 2001. The amount
of Mortgage Loans on the Financing Line at any time shall not exceed
$500,000,000.
(b) Servicing of the Mortgage Loans. The purchase by SBRC of a
Mortgage Loan pursuant to the Financing Line shall include the purchase of the
related servicing rights for such Mortgage Loan. Unless otherwise agreed to
between SBRC and NCCC, SBRC hereby covenants and agrees to hire New Century to
service; and New Century hereby covenants and agrees to service the Mortgage
Loans for a term beginning on the related Settlement Date (as defined in Section
2(a) hereof) and ending on the related repurchase date as provided for in the
Purchase and Sale Agreement (as defined in Section 2(a) hereof); provided that
if a Termination Event (as defined in Section 4(b) hereof) has occurred, New
Century shall immediately be terminated as servicer. In connection with its
servicing duties, New Century can service the Mortgage Loans itself or through
such other sub-servicer which SBRC has accepted in writing, as the sub-servicer
(the "Sub-Servicer") provided that, SBRC shall have the right to perform due
diligence on any entity appointed
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 2.
as servicer or sub-servicer of the Mortgage Loans and may require New Century to
select another servicer or sub-servicer to the extent that SBRC is not satisfied
with the results of such due diligence. The Mortgage Loans shall be serviced in
accordance with the servicing provisions specified in the Pooling and Servicing
Agreement, Series 2000-NC1 dated as of March 1, 2000 among Firstar Bank, N.A.,
U.S. Bank National Association, Salomon Brothers Mortgage Securities VII, Inc.
and New Century. New Century or the Sub-Servicer shall enforce "due-on-sale"
provisions to the extent permitted by law, shall administer all escrow/impound
deposits, shall pay compensating interest on principal prepayments in any month
up to the amount of its servicing compensation in such month and shall make all
servicing advances on any Mortgage Loan (including advances of delinquent
principal and interest payments). New Century or the Sub-Servicer shall be
required to make advances in respect of delinquent payments of principal and
interest on the Mortgage Loans through foreclosure, subject to New Century's or
the Sub-Servicer's determination regarding recoverability. The Mortgage Loans
shall be serviced for a servicing fee equal to 0.50% per annum payable monthly
on the then-outstanding principal balance of each Mortgage Loan (the "Servicing
Fee"). Any fee payable to the Sub-Servicer shall be paid by New Century without
any right of reimbursement by SBRC. Any Sub-Servicer shall execute a letter
agreement recognizing SBRC's interest in the Mortgage Loans in the form of
Exhibit A. Notwithstanding the foregoing, in the event NCCC fails to repurchase
a Mortgage Loan on the related repurchase date or if a Termination Event occurs,
New Century and any related Sub-Servicer will no longer be servicer with respect
to such Mortgage Loan or Mortgage Loans, unless the term of servicing is
extended by SBRC in its sole discretion. In such event, SBRC shall have the
right to transfer such servicing to another servicer without payment of any fee
to New Century. New Century will cooperate in good faith to effect such
servicing transfer and shall pay all costs associated with such servicing
transfer. In connection with a termination of New Century as servicer, neither
New Century nor NCCC shall be responsible for the costs (other than the costs of
transferring servicing files) associated with the appointment of a successor
servicer.
(c) Conditions Precedent to Mortgage Loan Purchases. SBRC's
obligation to purchase any Mortgage Loans and related servicing rights which it
accepts for its Financing Line shall be subject to each of the following
conditions:
(i) there shall have been delivered to SBRC a Trust Receipt
issued by U.S. Bank National Association ("U.S. Bank")
with a mortgage loan schedule attached thereto and an
exception report which is acceptable to SBRC in its sole
discretion, at least 24 hours prior to purchase;
(ii) SBRC shall have had an opportunity to perform a due
diligence review of each Mortgage Loan and shall have
arranged for reappraisals of value with respect to each
Mortgage Loan if desired by SBRC;
(iii) NCCC shall have provided to SBRC such other documents
which are then required to have been delivered under the
Purchase and Sale Agreement or which are reasonably
requested by SBRC, which other
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 3.
documents may include UCC financing statements, a
favorable opinion or opinions of counsel with respect to
matters which are reasonably requested by SBRC, and/or
an officer's or secretary's certificate; and
(iv) there shall have been delivered to SBRC a limited
guaranty of New Century, in the form of Exhibit B
hereto, by which New Century guarantees the obligations
of NCCC under this Letter Agreement and the Purchase and
Sale Agreement.
(d) Non-Utilization Fee. To the extent that the amount of Mortgage
Loans subject to this Financing Line averages less than $150,000,000 for any
calendar month, NCCC must pay a non-utilization fee (the "Non-Utilization Fee")
of 0.1875% on the difference between $150,000,000 and the amount of Mortgage
Loans on the Financing Line during such month.
(e) Information. NCCC and New Century will furnish SBRC with all
financial and other information concerning NCCC and New Century as SBRC deems
reasonably appropriate in connection with the performance of the services
contemplated by this letter, including (without limitation) "Monthly Cash Flow
Projections and Sensitivity Analyses," and will provide SBRC with reasonable
access during normal business hours to NCCC's and New Century's officers,
directors, employees, accountants, and other representatives. NCCC and New
Century acknowledge and confirm that SBRC (i) will rely on such information in
the performance of the services contemplated by this letter without
independently investigating or verifying any of it, (ii) assumes no
responsibility for the accuracy or completeness of such information and (iii)
will not disclose such information to any third party without the prior written
consent of NCCC or New Century, as applicable.
2 Financing Line.
(a) In General. Pursuant to the terms of this Financing Line, SBRC
shall simultaneously purchase from, and sign a forward commitment to resell to,
NCCC Mortgage Loans and the related servicing rights that are deemed acceptable
for such Financing Line as set forth below. The Financing Line shall be more
fully documented pursuant to the Mortgage Loan Purchase and Sale Agreement (the
"Purchase and Sale Agreement") to be entered into among NCCC, New Century and
SBRC, which shall be substantially similar in form to the Mortgage Loan Purchase
and Sale Agreement dated May 31, 2000 between New Century and SBRC but shall
provide for servicing provisions similar to those set forth in Section 1(b) of
this Letter Agreement. Under the Purchase and Sale Agreement, NCCC will make
standard secondary market corporate representations and warranties as of the
date such Purchase and Sale Agreement is executed and as of any settlement date
for the purchase and sale of any Mortgage Loans pursuant to such Purchase and
Sale Agreement (each such date, a "Settlement Date") and NCCC shall make
standard secondary market representations and warranties with respect to each
Mortgage Loan as of the Settlement Date on which such Mortgage Loan is sold to
SBRC.
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 4.
Except as described below, the "Purchase Price" with respect to each
Mortgage Loan and related servicing rights which conforms to the Underwriting
Standards of New Century which were most recently reviewed and approved by SBRC
and which is not a Special Risk Mortgage Loan (as defined in Section 2(b)
hereof), a Non-Standard Mortgage Loan (as defined in Section 2(c) hereof) or a
Problem Mortgage Loan (as defined in Section 2(d) hereof) (a "Standard Mortgage
Loan") shall be equal to the lesser of (i) 101.25% of the unpaid principal
balance of such Standard Mortgage Loan and (ii) the fair market value of such
Standard Mortgage Loan in SBRC's sole discretion. Except as described below, the
"Purchase Price" for each Special Risk Mortgage Loan and related servicing
rights shall be equal to the amount determined in accordance with the provisions
of Section 2(b)(ii) hereof and the "Purchase Price" for each Non-Standard
Mortgage Loan and related servicing rights shall be equal to the amount
determined in accordance with the provisions of Section 2(c)(ii) hereof.
Notwithstanding the foregoing, the "Purchase Price" for each Mortgage Loan will
be reduced by the amount of any Collateral Value Deficiency paid by NCCC with
respect to such Mortgage Loan.
The repurchase price shall reflect the agreed upon return to SBRC for
providing the Financing Line (the "Financing Cost"). With respect to any
Standard Mortgage Loan, Special Risk Mortgage Loan or Non-Standard Mortgage
Loan, the Financing Cost shall equal One Month LIBOR (as defined herein) plus
1.75%. NCCC shall retain principal and interest on any Mortgage Loans subject to
the Financing Line.
"One Month LIBOR" means as of the related Settlement Date, the 30 day
London Interbank Offered Rate as of 11:00 a.m. (London time) on such date, as
indicated on page number 3750 of the Telerate Service (rounded upwards if
necessary to the nearest whole multiple of 1/16%). If One Month LIBOR cannot be
so determined, then One Month LIBOR shall mean the rate determined by SBRC in
its sole discretion.
The Financing Line at any one time shall be initially limited to
$500,000,000 in amount of Mortgage Loans, which limit shall be reduced by an
amount equal to the principal balance of each Mortgage Loan (calculated at the
time such Mortgage Loan was first added to the Financing Line) removed from the
Financing Line (excluding any unfundings, Mortgage Loans repurchased for due
diligence reasons or Mortgage Loans removed for a breach of a representation or
warranty set forth on Exhibit B to the Purchase and Sale Agreement) and shall
have a term of one month. The maximum amount of Special Risk Mortgage Loans and
Non-Standard Mortgage Loans in the Financing Line shall not exceed $65,000,000
at any one time.
NCCC shall have the right to add Mortgage Loans to the Financing Line up
to four times each month. Standard Mortgage Loans may be removed from the
Financing Line up to four times a month (one of which shall be on the roll
date). Special Risk Mortgage Loans and Non-Standard Mortgage Loans may be
removed from the Financing Line with 24 hours prior written notice by NCCC to
SBRC.
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 5.
SBRC shall provide not less than twenty eight days' prior notice to
NCCC and U.S. Bank National Association (or such other warehouse lender as
directed by NCCC) in the event that SBRC elects to not renew the Financing Line
for any month.
(b) Special Risk Mortgage Loans. A "Special Risk Mortgage Loan" is
defined as any Mortgage Loan (i) that is a second lien Mortgage Loan; (ii) that
is a first lien Mortgage Loan with an unpaid principal balance of less than
$50,000. Special Risk Mortgage Loans shall be subject to the following
qualifications with respect to the Financing Line:
(i) the maximum Financing Line with respect to Special Risk
Mortgage Loans shall equal $20,000,000 (of which no more than
$10,000,000 shall be second lien Mortgage Loans and no more
than $10,000,000 shall be first lien Mortgage Loans that have
unpaid principal balances less than $50,000);
(ii) with respect to the Special Risk Mortgage Loans, the Purchase
Price shall be equal to (A) the lesser of (i) 80.00% of the
unpaid principal balance of any Special Risk Mortgage Loan
that is a second lien Mortgage Loan and (ii) the fair market
value of such Special Risk Mortgage Loan in SBRC's sole
discretion and (B) the lesser of (i) 80.00% of the unpaid
principal balance of any Special Risk Mortgage Loan that is a
first lien Mortgage Loan with an unpaid principal balance of
less than $50,000 and (ii) the fair market value of such
Special Risk Mortgage Loan in SBRC's sole discretion.
(c) Non-Standard Mortgage Loans. A "Non-Standard Mortgage Loan" is
defined as any Mortgage Loan (i) with an unpaid principal balance in excess of
$1,000,000; or (ii) that has a loan-to-value ratio in excess of 85.00% (up to a
maximum of 95.00%). Non-Standard Mortgage Loans shall be subject to the
following qualifications with respect to the Financing Line:
(i) the maximum Financing Line with respect to Non-Standard
Mortgage Loans shall equal $80,000,000 (of which no more than
$10,000,000 shall have unpaid principal balances greater than
$1,000,000 and no more than $75,000,000 shall be Mortgage
Loans with a loan-to-value ratio in excess of 85.00% (up to a
maximum of 95.00%));
(ii) with respect to the Non-Standard Mortgage Loans, the Purchase
Price shall be the market value of such Mortgage Loans as
determined by SBRC acting in good faith.
(d) Problem Mortgage Loans. A "Problem Mortgage Loan" is defined as
any Mortgage Loan which is in SBRC's sole discretion of insufficient quality to
be financed as a Standard Mortgage Loan, a Special Risk Mortgage Loan or a
Non-Standard Mortgage Loan; provided, however, that if SBRC agrees, it can
finance any Mortgage Loan rejected from a securitization or whole loan purchase
as a Non-Standard Mortgage Loan, (a) which is missing
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 6.
documentation or other information and such problem is not cured by NCCC in
sixty days, (b) which is delinquent at the time of financing by SBRC, which
becomes delinquent during such financing by SBRC or (c) was more than thirty
days but less than sixty days delinquent on more than one occasion in the prior
twelve months and is now current. Problem Mortgage Loans shall be financed by
SBRC pursuant to the Master Loan and Security Agreement, dated April 1, 2000,
the ("Loan and Security Agreement"), among New Century Mortgage Corporation as
servicer, NC Capital Corporation as borrower and SBRC as Lender.
With respect to any Mortgage Loan that is a Problem Mortgage Loan, in the
event that SBRC determines in its sole discretion that such Problem Mortgage
Loan has ceased to be a Problem Mortgage Loan, such Mortgage Loan shall be
treated as a Standard Mortgage Loan, Special Risk Mortgage Loan or a
Non-Standard Mortgage Loan, as the case may be, as of the first day of the month
following such determination.
Notwithstanding the foregoing, with respect to any Standard Mortgage Loan,
Special Risk Mortgage Loan or Non-Standard Mortgage Loan, the Purchase Price for
such Mortgage Loan shall decrease by 10% beginning on the date that is 120 days
from the date of origination and by an additional 10% for each succeeding month
thereafter.
No Mortgage Loan shall be subject to the terms of the Financing Line if:
(i) the unpaid principal balance of such Mortgage Loan exceeds $1,500,000 or
(ii) such Mortgage Loan has a loan-to-value ratio greater than 95.00%. No
Mortgage Loan the mortgagor of which had a FICO score of less than 500 or any
Mortgage Loan originated in accordance with Section 32 of the Homeownership and
Equity Protection Act of 1994 shall be subject to this Financing Line or the
Loan and Security Agreement.
(e) Xxxx-to-Market. If with respect to any Standard Mortgage Loan,
Special Risk Mortgage Loan or Non-Standard Mortgage Loan, SBRC at any time
determines, in its sole discretion, that there exists a Collateral Value
Deficiency (as defined below) and SBRC notifies NCCC in writing of such
Collateral Value Deficiency, NCCC shall, no later than one (1) Business Day
after receipt of such notice, pay to SBRC an amount equal to such Collateral
Value Deficiency, such that after giving effect to such payment, the Collateral
Value Deficiency is reduced to zero. With respect to any Mortgage Loan, a
"Collateral Value Deficiency" shall mean any time the excess, if any, of (a) the
outstanding Purchase Price of such Mortgage Loan as defined in Section 2(a)
hereof over (b) the Market Value of such Mortgage Loan. "Market Value" shall
mean, as of any date in respect of any Standard Mortgage Loan, Special Risk
Mortgage Loan or Non-Standard Mortgage Loan, the value of such Mortgage Loan as
determined by SBRC in its sole discretion. SBRC shall have the right to
xxxx-to-market any Mortgage Loan on a daily basis.
(f) Mortgage Loan Schedule. No Mortgage Loan shall be included in
the Financing Line unless NCCC shall have delivered to SBRC at least 48 hours
prior to such inclusion, a magnetic tape, in a format acceptable to SBRC,
consisting of the loan characteristics agreed upon by SBRC and NCCC with respect
to each Mortgage Loan.
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 7.
(g) Marketing of Mortgage Loans. SBRC may (subject to NCCC's consent
unless a Termination Event has occurred) market the Special Risk Mortgage Loans
and the Non-Standard Mortgage Loans on NCCC's behalf for a purchase price
acceptable to NCCC and shall provide NCCC with a copy of a trade ticket or
letter of intent with respect to any commitment to sell such Mortgage Loans.
(h) Hedging. NCCC will have the option to establish one or more
securities or commodities accounts at Xxxxxxx Xxxxx Xxxxxx and to enter into
transactions in such accounts (and only in such accounts) that are intended to
hedge the interest rate risk on Mortgage Loans included in the Financing Line.
3 [Reserved].
4. Termination.
(a) NCCC shall have the right to terminate its obligations hereunder
upon (i) any material default by SBRC of its obligations under this Letter
Agreement which is not cured within 30 days following written notice of such
default to SBRC by NCCC.
(b) SBRC shall have the right to terminate this Letter Agreement
upon the occurrence of any of the following events (each, a "Termination
Event"):
(i) the judgment by SBRC in good faith that a material adverse
change has occurred with respect to the business, properties,
assets or condition (financial or otherwise) of NCCC;
(ii) SBRC shall reasonably request, specifying the reasons for such
request, information, and/or written responses to such
requests, regarding the financial well-being of NCCC and such
information and/or responses shall not have been provided
within three business days of such request;
(iii) Either (A) a change in control of NCCC shall have occurred
without the consent of SBRC, other than in connection with and
as a result of the issuance and sale by NCCC of registered,
publicly offered common stock; or (B) SBRC determines in its
sole discretion that any material adverse change has occurred
in the management of NCCC;
(iv) There is (A) a material breach by NCCC of any representation
and warranty contained in the Purchase and Sale Agreement,
other than a representation or warranty relating to particular
Mortgage Loans, and SBRC has reason to believe in good faith
either that such breach is not curable within 30 days or that
such breach may not have been cured in all material respects
at the expiration of 30 days following discovery thereof by
NCCC or (B) a failure
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 8.
by NCCC to make any payment payable by it under the Purchase
and Sale Agreement or (C) any other failure by NCCC to observe
and perform in any material respect its material covenants,
agreements and obligations with SBRC, including without
limitation those contained in the Purchase and Sale Agreement,
and SBRC has reason to believe in good faith that such failure
may not have been cured in all material respects at the
expiration of 30 days following discovery thereof by NCCC;
(v) There shall have occurred any outbreak or material escalation
of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis, the effect of
which on the financial markets is such as to make it, in the
judgment of SBRC, impracticable to continue the commitment; or
(vi) NCCC fails to provide written notification to SBRC of any
material change in its loan origination, acquisition or
appraisal guidelines or practices, or NCCC, without the prior
consent of SBRC (which shall not be unreasonably withheld),
amends in any material respect its loan origination,
acquisition or appraisal guidelines or practices; or
(vii) A default by NC Residual II Corporation under the provisions
of the Global Master Repurchase Agreement, dated as of
December 11, 1998, between Xxxxxxx Xxxxx Barney Inc., as agent
for Salomon Brothers International Ltd. and NC Residual II
Corporation; or
(viii) NCCC's default in the payment of the amount of any Collateral
Value Deficiency for more than one (1) Business Day after
receipt of written notice of such Collateral Value Deficiency
as provided in Section 2(d) hereof;
provided, that SBRC shall have the right to dispose of any collateral held by
SBRC pursuant to this Letter Agreement. In connection with a Termination Event
under this Section 4, SBRC shall have the right to transfer servicing as
provided in Section 1(b).
(c) Subject to the provisions of this Section 4, this Letter
Agreement shall terminate upon the earlier of (i) May 31, 2001 and (ii) twenty
eight days following receipt by NCCC of written notice from SBRC that this
Letter Agreement shall terminate; provided that the Master Loan and Security
Agreement provided for in Section 2(b) shall continue under its terms; provided,
further, that SBRC may, in its sole discretion, extend the terms of this Letter
Agreement. In addition, upon receipt by NCCC of the written notice referred to
in (ii) above, NCCC will not be permitted to increase the amount of Mortgage
Loans on the Financing Line beginning on such date without SBRC's consent.
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 9.
Notwithstanding any other provision of this Section 4, any grace or
notice period provided herein in respect of a notice to be given or action to be
taken by SBRC (other than with respect to the notice provided by SBRC in Section
4(c)(ii)) may be shortened or eliminated by SBRC if, in its sole good faith
discretion, it is unreasonable to do so under the circumstances, taking into
consideration, among other things, the volatility of the market for the Mortgage
Loans involved, the extent and nature of any Termination Event (or events which
with the giving of such notice and passage of time would constitute Termination
Events) and the risks inherent in deferring the exercise of remedies for the
otherwise applicable grace or notice period.
5. General Provisions.
(a) SBRC's Discretion. It is understood that SBRC shall have
absolute discretion in determining whether to accept or reject any Mortgage
Loan. Notwithstanding the foregoing, however, subject to NCCC's representations,
warranties and covenants as set forth herein and in any related agreements, all
Standard Mortgage Loans, Special Risk Mortgage Loans and Non-Standard Mortgage
Loans originated by New Century in accordance with the underwriting standards of
New Century which were most recently approved by SBRC shall be eligible for
financing under the Financing Line in accordance with the terms hereof. It is
further understood that SBRC shall have absolute discretion in determining
whether any Mortgage Loan is a Standard Mortgage Loan, Special Risk Mortgage
Loan, Non-Standard Mortgage Loan or Problem Mortgage Loan and SBRC shall have
the right to approve or disapprove any Mortgage Loan with an unpaid principal
balance in excess of $1,000,000 (for which such Mortgage Loans, NCCC shall have
obtained two appraisals).
(b) Governing Law. This Letter Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without regard
to its conflicts of laws principles).
(c) Amendment or Waiver. This Letter Agreement may not be amended or
modified except in writing signed by each of the parties hereto.
(d) Counterparts. This Letter Agreement may be executed
simultaneously in any number of counterparts. Each counterpart shall be deemed
to be an original, and all such counterparts shall constitute one and the same
instrument.
(e) Severability Clause. Any part, provision, representation or
warranty of this Letter Agreement which is prohibited or which is held to be
void or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any part,
provision, representation or warranty of this Letter Agreement which is
prohibited or unenforceable or is held to be void or unenforceable in any
jurisdiction shall be ineffective, as to such jurisdiction, to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. To the extent permitted by applicable law, the parties hereto
waive any provision of law which prohibits or renders void or unenforceable any
provision hereof. If the invalidity of any part, provision, representation or
warranty of this Letter Agreement
NC Capital Corporation
New Century Mortgage Corporation
December 1, 2000 Page 10.
shall deprive any party of the economic benefit intended to be conferred by this
Letter Agreement, the parties shall negotiate, in good-faith, to develop a
structure the economic effect of which is nearly as possible the same as the
economic effect of this Letter Agreement without regard to such invalidity.
(f) No Partnership. Nothing herein contained shall be deemed or
construed to create a co-partnership or joint venture between the parties
hereto.
(g) Further Agreements. New Century, NCCC and SBRC each agree to
execute and deliver to the other such reasonable and appropriate additional
documents, instruments or agreements as may be necessary or appropriate to
effectuate the purposes of this Letter Agreement.
(h) Termination. Other than those sections intended to survive in
the letter agreement dated April 1, 2000 among New Century, NCCC, Xxxxxxx Xxxxx
Xxxxxx and SBRC (including those sections related to indemnification), such
letter agreement is hereby terminated.
(i) Expenses. NCCC shall pay the expenses of Xxxxxxx Xxxxxxxx &
Wood, counsel for SBRC, in connection with the Financing Line and any amendment
thereto, which fees and expenses will not exceed $20,000 in connection with the
Financing Line and will not exceed a negotiated cap between the parties in
connection with each amendment thereto, if any.
Please confirm that the foregoing is in accordance with your
understanding by signing this letter of agreement and two enclosed copies and
returning to us the enclosed copies. The letter signed by you shall constitute a
binding agreement between us as of the date first above written.
Yours sincerely,
SALOMON BROTHERS REALTY CORP.
By: /s/ [ILLEGIBLE]
----------------------------------
Name:
Title:
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
NEW CENTURY MORTGAGE CORPORATION
By: _______________________________
Name:
Title:
NC CAPITAL CORPORATION
By: _______________________________
Name:
Title:
Please confirm that the foregoing is in accordance with your
understanding by signing this letter of agreement and two enclosed copies and
returning to us the enclosed copies. The letter signed by you shall constitute a
binding agreement between us as of the date first above written.
Yours sincerely,
SALOMON BROTHERS REALTY CORP.
By: __________________________________
Name:
Title:
ACCEPTED AND AGREED TO
AS OF THE DATE FIRST ABOVE WRITTEN:
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: EVP/COO
NC CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
EXHIBIT A
FORM OF RECOGNITION LETTER
Salomon Brothers Realty Corp.
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxxxxxx Xxxxx
Facsimile No. (000) 000-0000
Re: [Name and Date of ] Servicing Agreement ("Agreement") between
[Name of Sub-Servicer] and New Century Mortgage Corporation
Ladies and Gentlemen:
The undersigned, _______________ ("Sub-Servicer"), having an address at
_________________, _________ Attention: _______________, has been informed by
New Century Mortgage Corporation ("New Century") that NC Capital Corporation
("NCCC") from time to time enters into transactions with you ("SBRC") in which
SBRC purchases mortgage loans (including the related servicing rights) serviced
by Sub-Servicer for New Century pursuant to the captioned Agreement, and NCCC
agrees to repurchase such mortgage loans (and related servicing rights) on
specified future dates (the agreement that provides for such purchases and
repurchases, the "Purchase and Sale Agreement"). New Century has requested that
Sub-Servicer provide this letter agreement to SBRC in order to, and Sub-Servicer
hereby agrees to, acknowledge that SBRC owns the servicing rights and, upon a
written notice to Sub-Servicer from SBRC that NCCC failed to repurchase a
Mortgage Loan on the related repurchase date or if NCCC defaults under the
Purchase and Sale Agreement and upon written notice to Sub-Servicer from U.S.
Bank National Association ("Custodian") that Custodian holds specified mortgage
loans (the "Salomon Loans") for SBRC, that Sub-Servicer will no longer be
sub-servicer with respect to the Salomon Loans, unless the term of sub-servicing
is extended by SBRC in its sole discretion. NCCC and New Century hereby agree to
indemnify Sub-Servicer for any loss, liability, damage, judgment, cost or
expense in any way related to the exercise of such termination by SBRC with
respect to the Salomon Loans. Any fee payable to the Sub-Servicer shall be paid
by New Century without any right of reimbursement by SBRC.
Yours sincerely,
SALOMON BROTHERS REALTY CORP.
By: ____________________________________
Name:
Title:
NC CAPITAL CORPORATION
By: ____________________________________
Name:
Title:
NEW CENTURY MORTGAGE
CORPORATION
By: ____________________________________
Name:
Title:
[SUB-SERVICER]
By: ____________________________________
Name:
Title:
EXHIBIT B
FORM OF LIMITED GUARANTY
SEE TAB 3
PURCHASE AND SALE AGREEMENT
From time to time Salomon Brothers Realty Corp. ("SBRC") and NC
Capital Corporation (the "Seller") may engage in purchase and sale transactions
whereby the Seller sells to SBRC adjustable rate and fixed rate one- to-four
family first lien and second lien mortgage loans acceptable to SBRC in its sole
discretion ("Eligible Mortgage Loans") and related servicing rights at a price
equal to the Purchase Price (as defined herein) and whereby, on a date fixed by
agreement between SBRC and the Seller, the Seller agrees to repurchase such
Eligible Mortgage Loans and related servicing rights from SBRC and SBRC agrees
to resell such Mortgage Loans and related servicing rights to the Seller, at the
repurchase price, which is based on the Purchase Price and reflects the agreed
upon return to SBRC (the "Repurchase Price"), all subject to and in accordance
with the terms and conditions set forth below. All such Eligible Mortgage Loans
which shall at any time have been delivered to SBRC and not yet repurchased by
the Seller hereunder, together with all rights related thereto, shall
hereinafter be referred to as the "Mortgage Loans" and the date on which SBRC
purchases each such Mortgage Loan shall be referred to as the "Purchase Date."
Capitalized terms used but not defined herein shall have the meanings set forth
in the letter agreement, dated November 30, 2000 (the "Letter Agreement") among
SBRC, New Century Mortgage Corporation ("New Century") and the Seller.
The "Purchase Price" with respect to each Standard Mortgage Loan and
related servicing rights shall be equal to the lesser of (i) 101.25% of the
unpaid principal balance of such Standard Mortgage Loan and (ii) the fair market
value of such Standard Mortgage Loan in SBRC's sole discretion. The "Purchase
Price" for each Special Risk Mortgage Loan and related servicing rights shall be
equal to (A) the lesser of (i) 80.00% of the unpaid principal balance of any
Special Risk Mortgage Loan that is a second lien Mortgage Loan and (ii) the fair
market value of such Special Risk Mortgage Loan in SBRC's sole discretion and
(B) the lesser of (i) 80.00% of the unpaid principal balance of any Special
Risk Mortgage Loan that is a first lien Mortgage Loan with an unpaid principal
balance of less than $50,000 and (ii) the fair market value of such Special Risk
Mortgage Loan in SBRC's sole discretion. The "Purchase Price" for each
Non-Standard Mortgage Loan and related servicing rights shall be the market
value of such Mortgage Loans as determined by SBRC acting in good faith.
Notwithstanding the foregoing, the "Purchase Price" for each Mortgage Loan will
be reduced by the amount of any Collateral Value Deficiency paid by NCCC with
respect to such Mortgage Loan.
Terms and conditions, applicable to each purchase and sale
transaction:
1. If the Seller and SBRC agree to enter into a purchase and sale
transaction, then on the same day the Seller shall sell and deliver to SBRC or
its agent the agreed upon Eligible Mortgage Loans, together with all rights
related thereto, against the crediting of the Purchase Price for such
transaction to an account of the Seller in immediately available funds. The
Seller represents and warrants that it has the unqualified right to sell,
transfer, assign or pledge the Eligible Mortgage Loans that will become
Mortgage Loans and that such Mortgage Loans, upon delivery to SBRC, will be free
and clear of any lien, claim or encumbrance. The Seller further represents that
this Agreement is legally entered into by the Seller, does not violate any
ordinance, charter, rule or statute applicable to it and that the person
executing this Agreement on behalf of the Seller has been duly
and properly authorized to do so. The Seller hereby represents and warrants that
as of the Purchase Date of any Mortgage Loan, each of the representations and
warranties specified on Exhibit A attached hereto are true and correct and each
of the representations and warranties specified on Exhibit B attached hereto are
true and correct as to each of the Mortgage Loans delivered to SBRC on such
date. With respect to the representations and warranties contained in Exhibit B
attached hereto which are made to the knowledge or the best of knowledge of the
Seller, or as to which the Seller, has no knowledge, if it is discovered that
the substance of any such representation and warranty was materially inaccurate
as of the date such representation and warranty was made or deemed to be made,
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or the interest therein of SBRC, then notwithstanding the lack of
knowledge by the Seller, with respect to the substance of such representation
and warranty being materially inaccurate at the time the representation and
warranty was made, SBRC shall have the rights set forth in the preceding
sentence.
2. No later than the business day on which each purchase and sale
transaction as described in paragraph 1 is effected, SBRC shall send to the
Seller a confirmation (the "Confirmation") setting forth with respect to such
purchase and sale transaction: the Eligible Mortgage Loans subject thereto; the
Purchase Price of such Eligible Mortgage Loans; the applicable interest rate
charged; the date fixed for the resale to the Seller of the Mortgage Loans; and
the Repurchase Price. Each Confirmation shall be binding upon the parties hereto
unless written notice of objection is given by the objecting party within one
(1) business day after the objecting party's receipt of such confirmation. Each
purchase of Mortgage Loans from the Seller by SBRC and sale of Mortgage Loans by
SBRC to the Seller shall also be evidenced by a trade confirmation between SBRC
and the Seller. In addition, the Seller shall deliver to SBRC on each Purchase
Date a Xxxx of Sale with respect to the related Mortgage Loans in the form of
Exhibit C hereto.
3. On the date fixed for repurchase of any Mortgage Loan, such
repurchase will be effected by delivery to the Seller or its agent of the
Mortgage Loans against the crediting of the Repurchase Price to an account of
SBRC in immediately available funds.
4. If, with respect to the Mortgage Loans, SBRC at any time
determines, in its sole discretion, that there exists a Collateral Value
Deficiency (as defined below) and SBRC notifies NCCC in writing of such
Collateral Value Deficiency, NCCC shall, no later than two (2) Business Days
after receipt of such notice, pay to SBRC an amount equal to such Collateral
Value Deficiency, such that after giving effect to such payment, the Collateral
Value Deficiency is reduced to zero. With respect to the Mortgage Loans,
Collateral Value Deficiency shall mean any time the excess, if any, of (a) the
outstanding Purchase Price of such Mortgage Loan over (b) the Market Value of
such Mortgage Loan. "Purchase Price," with respect to Standard Mortgage Loans,
Special Risk Mortgage Loans and Non-Standard Mortgage Loans, respectively, is
defined in Sections 2(a), (b) and (c) respectively, of the Letter Agreement.
"Market Value" shall mean, as of any date in respect of any Standard Mortgage
Loan or any Non-Standard Mortgage Loan, the value of such Mortgage Loan as
determined by SBRC in its sole discretion. SBRC shall have the right to
xxxx-to-market the Mortgage Loan on a daily basis.
-2-
5. Upon a Seller Event of Default (as defined in paragraph 7
hereof), SBRC may re-register any of the Mortgage Loans in its name or the name
of its agent and may resell the Mortgage Loans, with the right to re-register
given to the purchaser.
6. The Seller has delivered to SBRC its most recent financial
statements and represents that such statements fairly represent its financial
condition as to the date of such statements. The Seller also represent that
there has been no material adverse change in its financial condition since that
date. The Seller shall promptly deliver to SBRC all financial statements
subsequently made available by it to any creditor of the Seller or any regulator
of a substantial portion of its business. The Seller agrees that its agreement
to enter into each repurchase transaction shall constitute a representation that
there has been no material adverse change in its financial condition since the
date of the latest such statement.
7. The occurrence of any of the following shall constitute a "Seller
Event of Default":
(a) the judgment by SBRC in good faith that a material adverse
change has occurred with respect to the business, properties,
assets or condition (financial or otherwise) of the Seller;
(b) SBRC shall reasonably request, specifying the reasons for such
request, information, and/or written responses to such
requests, regarding the financial well-being of the Seller and
such information and/or responses shall not have been provided
within three business days of such request;
(c) Either (A) a change in control of the Seller shall have
occurred without the consent of SBRC, other than in connection
with and as a result of the issuance and sale by the Seller of
registered, publicly offered common stock; or (B) SBRC
determines in its, sole discretion that any material adverse
change has occurred in the management of the Seller;
(d) There is (A) material breach by the Seller of any
representation and warranty contained in this Agreement, other
than a representation or warranty relating to a particular
Mortgage Loan, and SBRC has reason to believe in good faith
either that such breach is not curable within 30 days or that
such breach may not have been cured in all material respects
at the expiration of 30 days following discovery thereof by
the Seller or (B) a failure by the Seller to make any payment
payable by it hereunder or (C) any other failure by the Seller
to observe and perform in any material respect its material
covenants, agreements and obligations with SBRC, including
without limitation those contained in this Agreement or any
other agreement between SBRC and the Seller, and SBRC has
reason to believe in good faith that such failure may not have
been cured in all material respects at the expiration of 30
days following discovery thereof by the Seller;
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(e) If the Seller shall fail to provide written notification to
SBRC of any material change in its loan origination,
acquisition or appraisal guidelines or practices, or the
Seller, without the prior consent of SBRC (which shall not be
unreasonably withheld), shall amend in any material respect
its loan origination, acquisition or appraisal guidelines or
practices;
(f) If the Seller shall fail to fully and timely perform any
obligation to SBRC or to any broker, dealer, bank or other
financial institution in respect of a transaction involving
securities, commodities or other instruments ("Instruments")
(regardless of whether SBRC has any right, title or interest
therein);
(g) If the Seller admits its inability or SBRC reasonably believes
the Seller is unable to perform fully when such performance
will become due any obligation on the Seller's part to any
broker, dealer, bank or other financial institution in respect
of a transaction involving Instruments not then due
(regardless of whether SBRC has any right, title or interest
therein);
(h) If the Seller shall make an assignment for the benefit of
creditors, or admit in writing its inability to pay debts as
they become due, or generally not pay its debts as they become
due, or file any petition, application or answer seeking for
itself any entry of an order for relief, protective decree,
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the
Bankruptcy Code or any other federal, state or foreign,
present or future, statute, law or regulation, or be subject
to any such order for relief or protective decree entered by a
court, or file any answer admitting or not controverting the
material allegations of such a petition or application filed
against the Seller, or seek or acquiesce in the appointment or
designation of, on taking possession by, any trustee,
receiver, liquidator or agent in respect of all or a
substantial part of the Seller's property, or the Seller's
trustees, directors, majority shareholders, partners or other
principals, as the case may be, shall take any action looking
to the dissolution or liquidation of the Seller or to the
taking of any action described in this paragraph (h), or any
of the foregoing shall occur in respect of any one or more of
the Seller's general partners, principals or parent entities
or other persons exercising control over the Seller;
(i) If an action shall be commenced or a petition or application
shall be filed against the Seller seeking any order for
relief, protective decree, reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar
relief under the Bankruptcy Code, Securities Investor
Protection Act or any federal, state or foreign present or
future statute, law or regulation and such action, petition or
application shall not have been dismissed or all orders or
proceedings thereunder stayed or vacated, or such stay shall
be set aside, or any trustee, receiver, liquidator or agent of
all or a substantial part of the Seller's property shall be
appointed or designated and
4
such appointment or designation shall not have been vacated,
or any of the foregoing shall occur in respect of any one or
more of the Seller's general partners, principals or parent
entities or other persons exercising control over the Seller;
(j) If a judgment for the payment of money or affecting all or a
substantial part of the Seller's business or property shall be
entered or rendered against the Seller, and such judgment
shall not have been discharged in full or effectively stayed
as to enforcement and execution;
(k) If the Seller shall default (as principal, guarantor or
surety) in the performance of any material contract or in the
payment of any principal or interest on any indebtedness or in
the performance of or compliance with any agreement,
instrument or other writing evidencing such indebtedness or
delivered pursuant thereto or in connection therewith, which
default shall have continued beyond any applicable period of
grace and, in the case of a default in respect of
indebtedness, would permit the holder of such indebtedness to
accelerate payment of the principal thereof;
(l) If any statement of the Seller's financial condition prepared
by the Seller or at its request shall indicate that, or it
shall have acknowledged that, the Seller has a negative net
worth or is insolvent;
(m) If the Securities and Exchange Commission, Commodity Futures
Trading Commission, any securities or commodities exchange or
association, any banking department or authority, or any other
business association or governmental entity or authority shall
revoke, cancel, enjoin, suspend or fail to renew the Seller's
registration, licensing, qualification or other authorization
to do business in respect of any type of business or any
geographic area, or any of the foregoing shall occur in
respect of any one or more of the Seller's general partners,
principals or parent entitles or other persons exercising
control over the Seller
(n) If the Seller shall fail to maintain, or acknowledge that it
has failed to maintain, sufficient net capital or any other
indicia of financial condition as required by any rule or
regulation applicable to the Seller of the Securities and
Exchange Commission, Commodity Futures Trading Commission, any
securities or commodities exchange or association, any banking
department or authority, or any other business association or
governmental entity or authority;
(o) If any securities or commodities exchange or association or
other business association shall revoke, cancel, enjoin,
suspend or fail to renew the Seller's membership,
5
(p) If there shall have occurred any outbreak or material
escalation of hostilities, declaration by the United States of
a national emergency or war or other calamity or crisis, the
effect of which on the financial markets is such as to make
it, in the judgment of SBRC, impracticable to continue this
Agreement;
(q) If Seller or any of its affiliates shall default in respect of
any transaction with SBRC or any of its affiliates; or
(r) The Seller's default in the payment of the amount of any
Collateral Value Deficiency for more than one (1) Business Day
after receipt of written notice of such Collateral Value
Deficiency as provided in Section 2(e) of the Letter
Agreement; or
(s) A default by NC Residual II Corporation under the provisions
of the Global Master Repurchase Agreement, dated as of
December 11, 1998, between Xxxxxxx Xxxxx Xxxxxx Inc., as agent
for Salomon Brothers International Ltd. and NC Residual II
Corporation.
Notwithstanding any other provision of this Agreement, any grace or
notice period provided herein in respect of a notice to be given or action to be
taken by SBRC may be shortened or eliminated by SBRC if, in its sole good faith
discretion, it is reasonable to do so under the circumstances, taking into
consideration, among other things, the volatility of the market for the
collateral involved, the extent and nature of any Seller Events of Default (or
events which with the giving of such notice and passage of time would constitute
Seller Events of Default), and the risks inherent in deferring the exercise of
remedies for the otherwise applicable grace or notice period.
8. If a Seller Event of Default shall have occurred and be
continuing, SBRC may, upon notice to the Seller (which notice shall not be
required to be given in advance in the case of a Seller Event of Default of a
type described in paragraph 6(h) or (i)), (a) terminate or accelerate to a date
designated by SBRC the date fixed for termination of the directly affected
purchase and sale transaction or all of the purchase and sale transactions
hereunder and (b) to the extent any portion of the Repurchase Price is not
repaid by the Seller on such date, sell a sufficient amount of the Mortgage
Loans in a commercially reasonable manner or elect to be deemed to have sold to
the Seller such Mortgage Loans, and in either event apply the proceeds of such
sale (excluding any reasonable expenses incurred in connection therewith) or, in
the case of a deemed sale, the market value of such Mortgage Loans as of the
date of such deemed sale, against the payment of the Repurchase Price and any
other amounts owing by the Seller under this Agreement, upon which application
the Repurchase Price or any such other amounts shall be reduced by the amount as
applied and SBRC shall be released from any obligation to sell, return or
redeliver such Mortgage Loans. If any Mortgage Loans remain after all
obligations of the Seller under this Agreement have been satisfied, SBRC or its
agent shall promptly return to the Seller or its agent the balance of the
Mortgage Loans. If the Mortgage Loans are not sufficient to satisfy all such
obligations, the Seller shall be liable to SBRC for the amount of remaining
obligations plus interest at the then prevailing effective Federal Funds Rate as
determined by SBRC in its sole discretion. Notwithstanding anything contained in
this Agreement, except as expressly provided for in this paragraph 8, SBRC shall
under no circumstances whatsoever have any obligation or liability to the
Seller in respect of
6
any purchase and sale transaction following the failure of the Seller to pay the
applicable Repurchase Price or deliver the applicable Mortgage Loans as and when
required by the terms of this Agreement
9. The occurrence of any of the following shall constitute a "SBRC
Event of Default":
(a) If the Purchase Price is not paid an specified in the second
paragraph of this Agreement;
(b) If SBRC shall make a general assignment for the benefit of
creditors; admit in writing its inability to pay its debts as
they become due; file a petition in bankruptcy or a petition
seeking any reorganization, arrangement, composition.
readjustment, liquidation, dissolution or similar relief under
any present or future bankruptcy, reorganization, insolvency
or similar statute, law or regulation or seek the appointment
of any trustee, receiver, custodian or liquidator of SBRC or
of all or substantially all of its properties;
(c) If a proceeding is commenced against SBRC seeking relief or an
appointment of a type described in paragraph 9(b) above and
such proceeding is not dismissed within 30 days after the
commencement thereof;
(d) If a final judgment for the payment of money shall be rendered
against SBRC, and such judgment shall not have been discharged
or its execution stayed pending appeal within 60 days of entry
or such judgment shall not have been discharged within 60 days
of expiration of any such stay;
(e) If SBRC shall have defaulted under this Agreement by operation
of clause (a) of the second sentence of paragraph 16 below,
and such default is not cured within three business days after
notice; or
(f) If SBRC or any of its affiliates shall default in respect of
any transaction with the Seller or any of its affiliates.
10. If an SBRC Event of Default shall have occurred and be
continuing, the Seller may, upon one business day's prior notice to SBRC, which
notice shall not be required to be given in advance in the case of an SBRC Event
of Default of a type described in paragraph 8(b) or (c), (a) terminate or
accelerate to a date designated by the Seller the date fixed for termination
of the directly affected purchase and sale transaction or all purchase and sale
transactions hereunder and (b) purchase in a commercially reasonable manner
Eligible Mortgage Loans with a market value equal to any Mortgage Loans required
to be returned or delivered by SBRC but not so returned or delivered and apply
the cost of such purchase (including any reasonable expenses incurred in
connection therewith) against the Repurchase Price and any other amounts owing
by the Seller under this Agreement, upon which application the Repurchase Price
and any such other amounts shall be reduced by the amount so applied and SBRC
shall be released from any obligation to sell, return or deliver such Mortgage
Loans. After all obligations of SBRC under this Agreement have been satisfied,
the Seller shall promptly pay SBRC any portion of such positive amount (after
such
7
reduction) which has not previously been paid. SBRC shall pay promptly to the
Seller any excess of such cost of purchase of replacement Eligible Mortgage
Loans (including expenses as aforesaid) over the amount of the Repurchase Price
(prior to reduction), plus interest on such excess for the period from the date
of such purchase until the date of full payment by SBRC at the then prevailing
effective Federal Funds Rate.
11. The Seller represents that it will have the authority to enter
into and perform any purchase and sale transactions under this Agreement. Each
party represents that the person executing this Agreement and the persons
executing transactions under this Agreement on its behalf have and will have to
authority to do so and that this Agreement does not conflict with any other
agreement binding on such party.
12. The Mortgage Loans shall be identified on a detailed listing to
be provided by the Seller to SBRC (a "Mortgage Loan Schedule") by diskette or
via modem. The Mortgage Loan Schedule must be received by SBRC not less than 72
hours prior to each transfer of Mortgage Loans and must be in a forms acceptable
to SBRC. The Confirmation shall be sent by SBRC to the Seller and the documents
contained in the Mortgage File (as defined herein) shall be delivered to U.S.
Bank National Association ("U.S. Bank") and held by U.S. Bank pursuant to the
terms of a Custodial Agreement, dated as of December 11, 1998 (the "Custodial
Agreement"), among the Seller, SBRC and U.S. Bank pursuant to which U.S. Bank
shall, among other things, issue trust receipts, as defined therein (the "Trust
Receipts"). As a condition to closing any transaction on any Purchase Date, U.S.
Bank must deliver to SBRC a Trust Receipt in form and substance acceptable to
SBRC. The transfer of such Mortgage Loans for the purposes of this paragraph 12
shall include the delivery to U.S. Bank of the following documents (the
"Mortgage File") with respect to each Mortgage Loan, as set forth in the
Custodial Agreement:
(i) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without
recourse" and signed in the name of the Seller by an
authorized officer showing an unbroken chain of endorsement
from the originator thereof to the person endorsing;
(ii) the original Mortgage with evidence of recording thereon; or,
with respect to any Mortgage which has been delivered for
recording but which has not been returned from the recorder's
office, a photocopy of such Mortgage, together with an
officer's certificate of the Company stating that such
Mortgage has been delivered to the appropriate public
recording office for recordation on and that the original
recorded Mortgage or a copy of such Mortgage certified by such
public recording office to be a true and complete copy of the
original recorded Mortgage will be delivered to U.S. Bank
after receipt thereof by the Seller;
(iii) if the Mortgage was executed pursuant to a power of attorney,
the power of attorney, with evidence of recording thereon or
a copy, certified by the appropriate recorder's office as true
and correct, with evidence of recording thereon;
(iv) the original Assignment of Mortgage for each Mortgage Loan, in
blank, assigned in blank, without recourse;
8
(v) recorded originals of all intervening assignments of the
Mortgage;
(vi) the original lender's title insurance policy, certificate of
insurance or binder, or a copy of the title insurance policy
or certificate of insurance certified by the applicable
title insurer to be a true copy;
(vii) for each Mortgage Loan with a loan-to-value ratio at
origination in excess of 80%, the original policy of primary
mortgage guaranty insurance or, if such insurance is
provided by a master policy, the original certificate of
insurance and a copy of such master policy (which master
policy shall not be required to be held in each individual
Mortgage File); and
(viii) the originals of all assumption, modification, consolidation
or extension agreements, with evidence of recording thereon.
In addition to the documents contained in the Mortgage File, the Seller
shall deliver to SBRC on or prior to the Purchase Date for such Transaction a
security release certification acceptable to SBRC, certifying the release of any
security interest of a third party which may have existed with respect to any
of the Mortgage Loans subject to such Transaction during the 45-day period prior
to the related Purchase Date and a Xxxx of Sale in the form of Exhibit C.
13. Unless otherwise agreed to between SBRC and the Seller, SBRC
hereby covenants and agrees to hire New Century to service; and New Century
hereby covenants and agrees to service each Mortgage Loan for a term beginning
on the related Purchase Date of such Mortgage Loan and related servicing rights
to the date such Mortgage Loan and related servicing rights are resold to the
Seller; provided that in the event the Seller fails to repurchase a Mortgage
Loan on the relaxed repurchase date or if a Seller Event of Default shall have
occurred and be continuing, New Century shall immediately be terminated as
servicer. New Century shall service such Mortgage Loan substantially in
accordance with the servicing provisions specified in the Pooling and Servicing
Agreement, Series 2000-NC1, dated as of March 1, 2000 (the "Pooling and
Servicing Agreement"), among U.S. Bank, Salomon Brothers Mortgage Securities
VII, Inc., New Century and Firstar Bank, N.A. including the following: New
Century shall remit or cause to remit payments of principal and interest to SBRC
on a date prior to the 25th day of each month beginning with the month after the
Purchase Date to permit remittances to certificateholders holders on the 25th
day of each month in connection with a securitization, shall enforce
"due-on-sale" provisions to the extent permitted by law, shall administer all
escrow/impound deposits, shall pay compensating interest on principal
prepayments in any month up to the amount of its servicing compensation in such
month and shall make all servicing advances on any Mortgage Loan (including
advances of delinquent principal and interest payments) on the Mortgage Loans.
New Century shall segregate and hold all funds collected and received pursuant
to each Mortgage Loan separate and apart from any of its own funds and general
assets and shall establish and maintain one or more accounts prior to a
securitization in the form of time deposit or demand accounts entitled "[name of
sub-servicer] in trust for Salomon Brothers Realty Corp." and deposit all
principal and interest daily within one day of receipt. New Century shall be
required to make advances in respect of delinquent payments of principal and
interest on the Mortgage Loans through foreclosure and in connection with any
properties acquired by the related trustee in any securitization transaction
through liquidation of such properties, subject
9
to New Century's determination regarding recoverability. The Mortgage Loans
shall be serviced for a servicing fee equal to 0.50% per annum payable monthly
on the then-outstanding principal balance of each Mortgage Loan (the "Servicing
Fee"). New Century's entitlement to such fee is subordinate to any rights and
interests of SBRC under this Agreement. Any fee payable to any sub-servicer
shall be paid by New Century without any right to reimbursement from SBRC.
Notwithstanding the foregoing, in the event the Seller fails to repurchase a
Mortgage Loan on the related repurchase date or if a Seller Event of Default has
occurred and is continuing, New Century and any related sub-servicer will no
longer be servicer with respect to such Mortgage Loan or Mortgage Loans, unless
the term of servicing is extended by SBRC in its sole discretion. In such event,
SBRC shall have the right to transfer such servicing to another servicer without
payment of any fee to New Century. New Century will cooperate in good faith to
effect such servicing transfer and shall pay all costs associated with such
servicing transfer. In connection with a termination of New Century as servicer,
neither New Century nor NCCC shall be responsible for the costs (other than the
costs of transferring servicing files) associated with the appointment of a
successor servicer.
14. All notices, deliveries and payments under this Agreement shall
be sufficient if in writing and delivered to the party entitled to receive such
notices, deliveries or payments, or if transmitted to such party by facsimile
transfer, at the following address or facsimile number: (i) if to SBRC: Salomon
Brothers Realty Corp., 000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary (facsimile no.: (000) 000-0000); (ii) if to the
Seller: NC Capital Corporation, 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx
00000, Attention: Xxxx Xxxxxxxxx (facsimile no.: (000) 000-0000) or to such
other addresses as either party may furnish the other party by written notice
under this paragraph.
15. It is the intention of the parties to this Agreement that
transactions entered into hereunder be considered purchases and sales of
Mortgage Loans notwithstanding their treatment for certain accounting purposes
as financing transactions. Notwithstanding any other provision of this
Agreement, in the event that a transaction hereunder is deemed not to constitute
a purchase and sale (a) the Seller shall be deemed to have hereby pledged to
SBRC the Mortgage Loans applicable in such transaction as security for the
performance by the Seller of its obligations in respect of such purchase and
sale transaction and any other purchase and sale transaction between SBRC and
the Seller and (b) the existence of such pledge shall be deemed not to violate
the representations and warranties in respect of such Mortgage Loans made by the
Seller in paragraph 1 above.
16. SBRC and the Seller hereby acknowledge that they consider each
transaction hereunder and all other transactions under this Agreement or any
other agreement between the parties, either party and any affiliate of the other
party or any affiliates of the parties to constitute a single business and
contractual relationship and to have been made in consideration of each other.
Therefore, (a) each party and each affiliate of each party hereby agrees to
fulfill all of its obligations to the other party and any affiliate of the other
party with respect to any transaction or agreement between them or any of their
affiliates, and agrees that a default in the performance of any such obligations
shall constitute a default hereunder, (b) each party and any of its affiliates
shall have a right of setoff against the other party and any of its affiliates
of amounts owing hereunder and any other amounts or obligations owing in respect
of any other agreement or transaction whatsoever and (c) payments and deliveries
made by either party or any of either party's affiliates hereunder shall be
considered to have been made in consideration of payments and deliveries made by
the other party
10
or any of the other party's affiliates with respect to any other agreement or
transaction between them, and the obligations to make any such payments and
deliveries may be applied against each other and netted. In order to secure any
obligation of either party to the other party or to any affiliate of the other
party under this Agreement or any other agreement, each party grants to the
other party and the affiliates of the other party a security interest in all
property heretofore or hereafter held by or for the benefit of such other party
or the affiliates of such other party.
17. In the event, for any reason, any purchase by SBRC hereunder on
any Purchase Date is construed by a court as a secured loan rather than a
purchase and sale, the parties intend that SBRC shall have a perfected first
priority security interest in all of the related Mortgage Loans. The Seller
shall pay all fees and expenses associated with perfecting such security
interest, including, without limitation, the cost of filing financing statements
under the Uniform Commercial Code to the extent required by SBRC.
18. The most recent Confirmation by SBRC to the Seller of each
transaction delivered pursuant to paragraph 2 hereof, as supplemented by this
Agreement, shall constitute a binding agreement between SBRC and the Seller. In
the event of any conflict between the provisions of this Agreement and any
other agreement, confirmation, instrument or other document, the provisions of
this Agreement shall govern; provided that, in the event of any conflict between
the terms of this Agreement and any Confirmation duly executed pursuant to
Section 2 hereof, such Confirmation shall govern. This Agreement shall not be
assignable by the Seller without prior written consent of SBRC, shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns, shall not be changed except by an instrument in writing signed by each
of the parties, and shall be governed by the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which
counterparts shall constitute but one and the same instrument. The Seller shall
promptly provide such further assurances or agreements as SBRC may request in
order to effect the purposes of this Agreement.
19. In connection with each Transaction entered into between the
Seller and SBRC, the Seller and SBRC agree as follows:
(a) In the case of any Transaction for which the Repurchase
Date is other than the business day immediately following the
Purchase Date and with respect to which the Seller does not have any
existing right to substitute substantially the same mortgage loans
for the Mortgage Loans, the Seller shall have the right, subject to
the proviso to this sentence, upon notice to SBRC, which notice
shall be given at or prior to 10 A.M. New York time on such business
day, to substitute substantially the same mortgage loans for any
Mortgage Loans; provided, however, that SBRC may elect, by the close
of business on the business day notice is received, or by the close
of the next business day if notice is given after 10 A.M. New York
time on such day, not to accept such substitution. In the event such
substitution is accepted by SBRC, such substitution shall be made by
the Seller's transfer to SBRC of such other mortgage loans and
SBRC's transfer to Seller of such Mortgage Loans, and after such
substitution, the substituted mortgage loans shall be deemed to be
Mortgage Loans. In the event SBRC elects not to accept such
substitution, SBRC shall offer the Seller the right to terminate
such Transaction.
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(b) In the event the Seller exercises its right to substitute
or terminate under sub-paragraph (a), the Seller shall be obligated
to pay to SBRC, by the close of the business day of such
substitution or termination, as the case may be, an amount equal to
(A) SBRC's actual cost (including all fees, expenses and
commissions) of (i) entering into replacement transactions; (ii)
entering into or terminating hedge transactions; and/or (iii)
terminating, transactions or substituting mortgage loans in like
transactions with third parties in connection with or as a result of
such substitution or termination, and (B) to the extent SBRC
determines not to enter into replacement transactions, the loss
incurred by SBRC directly arising or resulting from such
substitution or termination. The foregoing amounts shall be solely
determined and calculated by SBRC.
20. With respect to the Seller or New Century, the Seller shall
provide SBRC with a litigation report on a monthly basis on or before the 30th
day of each month which report shall be current through the 25th day of such
month (or later date if noted on the report) and shall briefly describe all
ongoing legal or arbitration proceedings (each a "Civil Action") including as to
each Civil Action: (1) the file of the Civil Action; (2) a brief summary of the
plaintiff's allegations taken from the complaint; and (3) the mount of in
controversy to the extent that the complaint specifically pleads a dollar amount
of compensatory damages. In addition, the Seller shall give notice to SBRC
within ten (10) days after receipt of service of process on the Seller or New
Century (or any agent thereof designated for service of process) of any Civil
Action where the Seller or New Century is a named party thereto and such Civil
Action: (1) seeks certification of a class of plaintiffs; (2) specifically
pleads compensatory damages in excess of $1,000,000 against the Seller or New
Century based on the Seller's or New Century's activities in the origination or
servicing of the plaintiff's mortgage loan; or (3) the Civil Action if adversely
determined would in the reasonable judgment of the Seller result in a judgment
of compensatory damages in favor of the plaintiff and against the Seller or New
Century in excess of $1,000,000.
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IN WITNESS WHEREOF, SBRC and the Seller have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
November 30, 2000.
SALOMON BROTHERS REALTY CORP.
By: /s/ [ILLIGIBLE]
-----------------------------------
Name:
Title:
NC CAPITAL CORPORATION
By:
-----------------------------------
Name:
Title:
IN WITNESS WHEREOF, SBRC and the Seller have caused their names to
be signed hereto by their respective officers thereunto duly authorized as of
November 30, 2000.
SALOMON BROTHERS REALTY CORP.
By:
-----------------------------------
Name:
Title:
NC CAPITAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
EXHIBIT A
The Seller represents, warrants and covenants to SBRC as of each
Purchase Date or as of such other date as specifically provided herein:
(i) The Seller is duly organized, validly existing and in good
standing as a corporation under the laws of the State of California and is and
will remain in compliance with the laws of each state in which any Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan in accordance with the terms of this Agreement;
(ii) The Seller has the full power and authority to hold each
Mortgage Loan, to sell each Mortgage Loan, and to execute, deliver and perform,
and to enter into and consummate, all transactions contemplated by this
Agreement. The Seller has duly authorized the execution, delivery and
performance of this Agreement, has duly executed and delivered this Agreement,
and this Agreement, assuming due authorization, execution and delivery by SBRC
and the Seller, constitutes a legal, valid and binding obligation of the Seller,
enforceable against it in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or reorganization;
(iii) The execution and delivery of this Agreement by the Seller
and the performance of and compliance with the terms of this Agreement will
not violate the Seller's articles of incorporation or by-laws or constitute a
default under or result in a breach or acceleration of, any material contract,
agreement or other instrument to which the Seller is a party or which may be
applicable to the Seller or its assets;
(iv) The Seller is not in violation of and the execution and
delivery of this Agreement by the Seller and its performance and compliance with
the terms of this Agreement will not constitute a violation with respect to, any
order or decree of any court or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction over the Seller or its
assets, which violation might have consequences that would materially and
adversely affect the condition (financial or otherwise) or the operation of the
Seller or its assets at might have consequences that would materially and
adversely affect the performance of its obligations and duties hereunder;
(v) The Seller does not believe, nor does it have any reason or
cause to believe, that it cannot perform each and every covenant contained in
this Agreement;
(vi) Immediately prior to the payment of the Purchase Price for each
Mortgage Loan, the Seller was the owner of the related Mortgage and the
indebtedness evidenced by the related Mortgage Note and upon the payment of the
Purchase Price by SBRC, in the event that the Seller retains record title, the
Seller shall retain such record title to each Mortgage, each related Mortgage
Note and the related Mortgage Files with respect thereto in trust for the SBRC
as the owner thereof;
(vii) There are no actions or proceedings against investigations
known to it of, the Seller before any court, administrative or other tribunal
(A) that might prohibit its entering into this Agreement, (B) seeking to prevent
the sale of the Mortgage Loans or the consummation of the transactions
contemplated by this Agreement or (C) that might prohibit or materially and
adversely
affect the performance by the Seller of its obligations under, or validity or
enforceability of this Agreement;
(viii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Seller of, or compliance by the Seller with, this Agreement
or the consummation of the transactions contemplated by this Agreement, except
for such consents, approval authorizations or orders, if any, that have been
obtained;
(ix) The consummation of the transactions contemplated by this
Agreement are in the ordinary course of business of the Seller, and the
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages by
the Seller pursuant to this Agreement are not subject to the bulk transfer or
any similar statutory provisions;
(x) The information delivered by the Seller to SBRC with respect to
New Century's loan loss, foreclosure and delinquency experience on mortgage
loans underwritten to the same standards as the Mortgage Loans and covering
mortgaged properties similar to the Mortgaged Properties, is true and correct
in all material respects and includes adjustments for payments which are timely
received but which are not honored, due to insufficient funds or for any other
reason;
(xi) This Agreement does not contain any untrue statement of
material fact or omit to state a material fact necessary to make the statements
contained herein not misleading. The written statements, reports and other
documents prepared and furnished or to be prepared and furnished by the Seller
pursuant to this Agreement or in connection with the transactions contemplated
hereby taken in the aggregate do not contain any untrue statement of material
fact or omit to state a material fact necessary to make the statements contained
therein not misleading; and
(xiii) With respect to each Mortgage Loan, the Seller is in
possession of a complete Mortgage File, except for such documents as have been
delivered to U.S. Bank.
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EXHIBIT B
The Seller hereby represents and warrants to SBRC that, as to each
Mortgage Loan, as of the related Purchase Date, or as of such date specifically
provided herein:
(i) The information set forth in the Mortgage Loan Schedule,
including the field concerning any related Prepayment Charge, is complete, true
and correct as of the related Purchase Date;
(ii) The Mortgage Loan is in compliance with all requirements set
forth in the Confirmation, and the characteristics of the Mortgage Loans as set
forth in the Confirmation are true and correct;
(iii) (a) All payments required to be made on or before the first
day of the month prior to the month of the Purchase Date, with respect to such
Mortgage Loan under the terms of the Mortgage Note have been made; provided,
however, in the event that the first due date for a Mortgage Loan is on or after
the Purchase Date, the first monthly payment for such Mortgage Loan will be or
has been made; (b) the Seller has not advanced funds, or induced, solicited or
knowingly received any advance of funds from a party other than the owner of the
related Mortgaged Property, directly or indirectly, for the payment of any
amount required by the Mortgage Note or Mortgage; and (c) no payment required
under any Mortgage Loan has been 30 days delinquent more than once during the
last twelve months and no Mortgage Loan has ever been 60 or more days
delinquent;
(iv) There are no delinquent taxes, ground rents, water charges,
sewer rents, assessments, insurance premiums, leasehold payments, including
assessments payable in future installments or other outstanding charges
affecting the related Mortgaged Property;
(v) To the best knowledge of the Seller, the terms of the Mortgage
Note and the Mortgage have not been impaired, waived, altered or modified in any
respect, except by written instruments, recorded in the applicable public
recording office if necessary to maintain the lien priority of the Mortgage;
and which have been delivered to U.S. Bank; the substance of any such waiver,
alteration or modification has been approved by the title insurer, to the extent
required by the related policy, and is reflected on the Mortgage Loan Schedule.
No instrument of waiver, alteration or modification has been executed by the
Seller or any other person in the chain of title from the Seller to SBRC, and no
Mortgagor has been released, in whole or in part, except in connection with an
assumption agreement approved by the title insurer, to the extent required by
the policy, and which assumption agreement has been delivered to U.S. Bank and
the terms of which are reflected in the Mortgage Loan Schedule;
(vi) Prior to the transfer to SBRC from the Seller, the Mortgage
Note and the Mortgage are not subject to any right of rescission, set-off,
counterclaim or defense, including the defense of usury, nor will the operation
of any of the terms of the Mortgage Note and the Mortgage, or the exercise of
any right thereunder, render the Mortgage unenforceable, in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense, including
the defense of usury and no such right of rescission, set-off, counterclaim or
defense has been asserted with respect thereto;
(vii) All buildings upon the Mortgaged Property are insured by a
generally acceptable insurer against loss by fire, hazards of extended coverage
and such other hazards as are customary in the area where the Mortgaged Property
is located, pursuant to insurance policies conforming to the requirement of the
Pooling and Servicing Agreement. All such insurance policies contain a standard
mortgagee clause naming the Seller, its successors and assigns as mortgagee and
all premiums thereon have been paid. If upon origination of the Mortgage Loan,
the Mortgaged Property was in an area identified on a Flood Hazard Map or Flood
Insurance Rate Map issued by the Federal Emergency Management Agency as having
special flood hazards (and such flood insurance has been made available) a flood
insurance policy meeting the requirements of the current guidelines of the
Federal Insurance Administration is in effect which policy conforms to the
requirements of Xxxxxx Xxx and Xxxxxxx Mac. The Mortgage obligates the Mortgagor
thereunder to maintain all such insurance at the Mortgagor's cost and expense,
and on the Mortgagor's failure to do so, authorizes the holder of the Mortgage
to maintain such insurance at Mortgagor's cost and expense and to seek
reimbursement therefor from the Mortgagor;
(viii) Any and all requirements of any federal, state or local law
including, without limitation, usury, truth in lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity or disclosure
laws applicable to the origination and servicing of the Mortgage Loan have been
complied with. Any and all statements or acknowledgements required to be made by
the Mortgagor relating to such requirements are and will remain in the Mortgage
File;
(ix) The Mortgage has not been satisfied, canceled, subordinated or
rescinded, in whole or in part, and the Mortgaged Property has not been released
from the lien of the Mortgage, in whole or in part, nor has any instrument been
executed that would effect any such satisfaction, cancellation, subordination,
rescission or release;
(x) The Mortgage is a valid, existing and enforceable first lien or
second lien on the Mortgaged Property, including all improvement on the
Mortgaged Property subject only to (a) the lien of current real property taxes
and assessments not yet due and payable, (b) covenants, conditions and
restrictions, rights of way, easements and other matters of the public record as
of the date of recording being acceptable to mortgage lending institutions
generally and specifically referred to in the lender's title insurance policy
delivered to the originator of the Mortgage Loan and which do not adversely
affect the market value of the Mortgaged Property and (c) other matters to which
like properties are commonly subject which do not materially interfere with the
benefits of the security intended to be provided by the Mortgage or the use,
enjoyment, value or marketability of the related Mortgaged Property. Any
security agreement, chattel mortgage or equivalent document related to and
delivered in connection with the Mortgage Loan establishes and creates a valid,
existing and enforceable first lien or second lien and first or second priority
security interest on the property described therein and as of the time it sold
each Mortgage Loan to the Purchaser, the Seller had full right to sell and
assign the same to the Purchaser. The Mortgaged Property was not, as of the date
of origination of the Mortgage Loan, subject to a mortgage, deed of trust, deed
to secure debt or other security instrument creating a lien subordinate to the
lien of the Mortgage;
(xi) The Mortgage Note and the related Mortgage are genuine and each
is the legal, valid and binding obligation of the maker thereof, enforceable in
accordance with its terms;
2
(xii) All parties to the Mortgage Note and the Mortgage had legal
capacity to enter into the Mortgage Loan and to execute and deliver the Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage have been duly and
properly executed by such parties. The Mortgagor is a natural person who is a
party to the Mortgage Note and the Mortgage is in an individual capacity or
family trust that is guaranteed by a natural person;
(xiii) The proceeds of the Mortgage Loan have been fully disbursed
to or for the account of the Mortgagor and there is no obligation for the
Mortgagee to advance additional funds thereunder and any and all requirements as
to completion of any on-site or off-site improvement and as to disbursements of
any escrow funds therefor have been complied with. All costs, fees and expenses
incurred in making or closing the Mortgage Loan and the recording of the
Mortgage have been paid, and the Mortgagor is not entitled to any refund of any
amounts paid or due to the Mortgagee pursuant to the Mortgage Note or Mortgage;
(xiv) Immediately prior to the sale of the Mortgage Loan hereunder,
the Seller is the sole legal, beneficial and equitable owner of the Mortgage
Note and the Mortgage and has full right to transfer and sell to Mortgage Loan
to SBRC free and clear of any encumbrance, equity, lien, pledge, charge, claim
or security interest;
(xv) All parties which have had any interest in the Mortgage Loan,
whether as mortgagee, assignee, pledgee or otherwise, are (or, during the period
in which they held and disposed of such interest, were) in compliance with any
and all applicable "doing business" and licensing requirements of the laws of
the state wherein the Mortgaged Property is located;
(xvi) The Mortgage Loan is covered by an ALTA lender's title
insurance policy with, in the case of any adjustable rate Mortgage Loan, an
adjustable rate mortgage endorsement, such endorsement substantially in the form
of ALTA Form 6.0 or 6.1, acceptable to Xxxxxx Xxx or Xxxxxxx Mac, issued by a
title insurer acceptable to Xxxxxx Mae and Xxxxxxx Mac and qualified to do
business in the jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in (x)(a) and (b) above) the Seller, its
successors and assigns as to the first priority lien of the Mortgage in the
original principal amount of the Mortgage Loan and against any loss by reason of
the invalidity or unenforceability of the lien resulting from the provisions of
the Mortgage providing for adjustment in the mortgage interest rate and monthly
payment. Additionally, such lender's title insurance policy affirmatively
insures ingress and egress to and from the Mortgaged Property, and against
encroachments by or upon the Mortgaged Property or any interest therein. The
Seller is the sole insured of such lender's title insurance policy, and such
lender's title insurance policy is in full force and effect and will be in full
force and effect upon the consummation of the transactions contemplated by this
Agreement. No claims have been made under such lender's title insurance policy,
and no prior holder of the related Mortgage, including the Seller, has done, by
act or omission, anything which would impair the coverage of such lender's title
insurance policy;
(xvii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and no event
which, with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event of
acceleration, and the Seller has not waived any default, breach, violation or
event of acceleration;
3
(xviii) There are no mechanics' or similar liens or claims which
have been filed for work, labor or material (and no rights are outstanding that
under law could give rise to such lien) affecting the related Mortgaged Property
which are or may be liens prior to, or equal or coordinate with, the lien of the
related Mortgage;
(xix) All improvements which were considered in determining the
appraised value of the related Mortgaged Property lay wholly within the
boundaries and building restriction lines of the Mortgaged Property, and no
improvements on adjoining properties encroach upon the Mortgaged Property. Each
appraisal has been performed in accordance with the provisions of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989;
(xx) The Mortgage Loan was (i) originated by New Century or by a
savings and loan association, a savings bank, a commercial bank or similar
banking institution which is supervised and examined by a federal or state
authority, or by mortgagee approved as such by the Secretary of HUD or (ii)
acquired by New Century directly through loan brokers or correspondents such
that (a) the Mortgage Loan was originated in conformity with New Century's
underwriting guidelines, (b) New Century approved the Mortgage Loan prior to
funding and (c) New Century provided the funds used to originate the Mortgage
Loan and acquired the Mortgage Loan on the date of origination thereof;
(xxi) Principal payments on the Mortgage Loan commenced no more than
two months after the proceeds of the Mortgage Loan were disbursed. The Mortgage
Loan bears interest at the mortgage rate. The Mortgage Note is payable on the
first day of each month in monthly payments which, in the case of each
adjustable rate Mortgage Loan, are changed on each adjustment date to an amount
which will amortize the stated principal balance of the Mortgage Loan over its
remaining term at the mortgage interest rate. Interest on the Mortgage Loan is
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The Mortgage Note does not permit negative amortization. No Mortgage Loan
permits the Mortgagor to convert an adjustable rate Mortgage Loan to a fixed
rate Mortgage Loan;
(xxii) The origination and collection practices used by New Century
with respect to each Mortgage Note and Mortgage have been in all respects legal,
proper, prudent and customary in the mortgage origination and servicing
industry. The Mortgage Loan has been serviced by New Century (directly or
through a subservicer) and any predecessor servicer in accordance with the terms
of the Mortgage Note. With respect to escrow deposits and escrow payments, if
any, all such payments are in the possession of, or under the control of, the
Seller and there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made. No escrow
deposits or Escrow Payments or other charges or payments due the Seller have
been capitalized under any Mortgage or the related Mortgage Note;
(xxiii) The Mortgaged Property is free of damage and waste and there
is no proceeding pending for the total or partial condemnation thereof;
(xxiv) The Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the Mortgaged Property of the
benefits of the security provided thereby, including, (a) in the
4
case of a Mortgage designated as a deed of trust, by trustee's sale, and (b)
otherwise by judicial foreclosure. Since, the date of origination of the
Mortgage Loan, the Mortgaged Property has not been subject to any bankruptcy
proceeding or foreclosure proceeding and the Mortgagor has not filed for
protection under applicable bankruptcy laws. There is no homestead or other
exemption available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee's sale or the right to foreclose the
Mortgage. The Mortgagor has not notified the Seller and the Seller has no
knowledge of any relief requested or allowed to the Mortgagor under the Soldiers
and Sailors Civil Relief Act of 1940;
(xxv) The related Mortgaged Property is not a leasehold estate or,
if such Mortgaged Property is a leasehold estate, the remaining term of such
lease is at least ten (10) years greater than the remaining term of the related
Mortgage Note;
(xxvi) The Mortgage Note is not and has not been secured by any
collateral except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security agreement or
chattel mortgage referred to in (x) above;
(xxvii) The Mortgage File contains an appraisal of the related
Mortgaged Property made and signed, prior to the approval of the Mortgage Loan
application, by a qualified appraiser, approved by the Seller, who had no
interest, direct or indirect in the Mortgaged Property or in any loan made on
the security thereof, whose compensation is not affected by the approval or
disapproval of the Mortgage Loan and who met the minimum qualifications of
Xxxxxx Xxx and Xxxxxxx Xxx;
(xxviii) In the event the Mortgage constitutes a deed of trust, a
trustee duly qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage, and no fees or
expenses are or will become payable by SBRC to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
Mortgagor;
(xxix) No Mortgage Loan contains provisions pursuant to which
monthly payments are (a) paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or anyone on behalf
of the Mortgagor, (b) paid by any source other than the Mortgagor or (c)
contains any other similar provision which may constitute a "buydown" provision.
The Mortgage Loan is not a graduated payment mortgage loan and the Mortgage Loan
does not have a shared appreciation or other contingent interest feature;
(xxx) With respect to each adjustable rate Mortgage Loan, the
Mortgagor has executed a statement to the effect that the Mortgagor has received
all disclosure materials required by applicable law with respect to the making
of adjustable rate mortgage loans; and if the Mortgage Loan is a refinanced
mortgage loan, the Mortgagor has received all disclosure and rescission
materials required by applicable law with respect to the making of a refinanced
mortgage loan, and evidence of such receipt is and will remain in the Mortgage
File;
(xxxi) No Mortgage Loan was made in connection with (a) the
construction or rehabilitation of a Mortgaged Property or (b) facilitating the
trade-in or exchange of a Mortgaged Property;
5
(xxxii) The Mortgage Note, the Mortgage, the Assignment of Mortgage
and any other documents required to be delivered with respect to each Mortgage
Loan pursuant to the Custodial Agreement, have been delivered to U.S. Bank all
in compliance with the specific requirements of the Custodial Agreement;
(xxxiii) The Mortgaged Property is lawfully occupied under
applicable law; all inspections, licenses and certificates required to be made
or issued with respect to all occupied portions of the Mortgaged Property and,
with respect to the use and occupancy of the same, including but not limited to
certificates of occupancy, have been made or obtained from the appropriate
authorities;
(xxxiv) No error, omission, misrepresentation, negligence, fraud or
similar occurrence with respect to a Mortgage Loan has taken place on the part
of any person, including, without limitation, the Mortgagor, any appraiser, any
builder or developer, or any other party involved in the origination of the
Mortgage Loan or in the application of any insurance in relation to such
Mortgage Loan;
(xxxv) The Assignment of Mortgage is in recordable form and is
acceptable for recording under the laws of the jurisdiction in which the
Mortgaged Property is located;
(xxxvi) Any principal advances made to the Mortgagor prior to the
Purchase Date have been consolidated with the outstanding principal amount
secured by the Mortgage, and the secured principal amount, as consolidated,
bears a single interest rate and single repayment term. The lien of the Mortgage
securing the consolidated principal amount expressly insured as having first
lien or second lien priority by a title insurance policy, an endorsement to the
policy insuring the mortgagee's consolidated interest or by other title evidence
acceptable to Xxxxxx Mae and Xxxxxxx Mac. The consolidated principal amount does
not exceed the original principal amount of the Mortgage Loan;
(xxxvii) No Mortgage Loan has a balloon payment feature;
(xxxviii) If the Residential Dwelling on the Mortgaged Property is a
condominium unit or a unit in a planned unit development (other than a de
minimis planned unit development) such condominium or planned unit development
project meets the Xxxxxx Mae's eligibility requirements;
(xxxix) Neither the Seller nor any affiliate of the Seller has made
a mortgage on any Mortgaged Property other than the Mortgage Loan;
(xl) [reserved];
(xli) The Mortgage Loan was not intentionally selected by the Seller
in a manner intended to adversely affect the interest of SBRC;
(xlii) The Seller has not dealt with any broker or agent or other
person who might be entitled to a fee, commission or compensation in connection
with the transaction contemplated by this Agreement other than SBRC;
6
(xliii) Each Mortgaged Property consists of a parcel of real
property with a single family residence erected thereon, or a two to four-family
dwelling, or an individual condominium unit in a low-rise or high-rise
condominium project, or an individual unit in a planned unit development. Each
Mortgaged Property is improved with a residential dwelling. Without limiting the
foregoing, the Mortgaged Property does not consist of any of the following
property types: (a) co-operative units, (b) log homes, (c) earthen homes, (d)
underground homes, (e) mobile homes and (f) manufactured homes (as defined in
the Xxxxxx Xxx Originator-Servicer's Guide), except when the appraisal indicates
that the home is of comparable construction to a stick or beam construction
home, is readily marketable, has been permanently affixed to the site and is not
in a mobile home "park." The Mortgaged Property is either a fee simple estate or
a long-term residential lease. If the Mortgage Loan is secured by a long-term
residential lease, unless otherwise specifically disclosed in the Mortgage Loan
Schedule, (A) the terms of such lease expressly permit the mortgaging of the
leasehold estate, the assignment of the lease without the lessor's consent (or
the lessor's consent has been obtained and such consent is the Mortgage File)
and the acquisition by the holder of the Mortgage of the rights of the lessee
upon foreclosure or assignment in lieu of foreclosure or provide the holder of
the Mortgage with substantially similar protection; (B) the terms of such lease
do not (x) allow the termination thereof upon the lessee's default without the
holder of the Mortgage being entitled to receive written notice of, and
opportunity to cure, such default or (y) prohibit the holder of the Mortgage
from being insured under the hazard insurance policy relating to the Mortgaged
Property; (C) the original term of such lease is not less than 15 years; (D) the
term of such lease does not terminate earlier than 10 years after the maturity
date of the Mortgage Note; and (E) the Mortgaged Property is located in a
jurisdiction in which the use of leasehold estates for residential properties is
an accepted practice;
(xliv) At the time of origination, the loan-to-value ratio of the
Mortgage Loan was not greater than 95.00%;
(xlv) The Mortgage, and if required by applicable law the related
Mortgage Note, contains a provision for the acceleration of the payment of the
unpaid principal balance of the Mortgage Loan in the event that the Mortgaged
Property is sold or transferred without the prior written consent of the
Mortgagee, at the option of the Mortgagee;
(xlvi) The Mortgage Loan either contains a customary due-on-sale
clause or may be assumed by a creditworthy purchaser of the related Mortgaged
Property;
(xlvii) With respect to any adjustable rate Mortgage Loan, as of any
Adjustment Date for such Mortgage Loan, the index applicable to the
determination of the Mortgage Rate on such Mortgage Loan will be the average of
the interbank offered rates for six-month United States dollar deposits in the
London market, generally as published in The Wall Street Journal and as most
recently available as of either (i) the first business day 45 days prior to such
Adjustment Date or (ii) the first business day of the month preceding the month
of such Adjustment Date, as specified in the related Mortgage Note; and
(xlviii) Each Mortgage Loan is an obligation that is principally
secured by real property.
7
EXHIBIT C
XXXX OF SALE
On this ____ day of __________, 200__, NC Capital Corporation ("NCCC")
does hereby sell, transfer, assign, set over and convey to Salomon Brothers
Realty Corp ("SBRC"), without recourse, all of the right, title and interest of
NCCC in and to each of the adjustable rate and/or fixed rate one-to-four family
residential first lien and second lien mortgage loans identified on the Mortgage
Loan Schedule attached hereto as Exhibit One (the "Mortgage Loans"), and the
related Mortgage Loan Files. Such Mortgage Loans are sold to SBRC pursuant to
the Purchase and Sale Agreement dated as of November 30, 2000 between SBRC and
NCCC (the "Agreement").
NCCC hereby represents and warrants that NCCC is the sole legal,
beneficial and equitable owner of each Mortgage Loan and has full power and
authority to transfer and sell each Mortgage Loan to SBRC free and clear of
any encumbrance, equity, lien, pledge, charge, claim or security interest that
NCCC had or created in the Mortgage Loans or the related Mortgage Loan Files and
that as of the date hereof the representations and warranties specified in
Exhibits A and B to the Agreement are true and correct as to NCCC and the
Mortgage Loans.
This Xxxx of Sale shall be governed by, and construed in accordance with,
the laws of the State of New York.
NC CAPITAL CORPORATION
By:____________________________
Name:
Title:
EXHIBIT ONE
MORTGAGE LOAN SCHEDULE
