EXHIBIT 10.3
Execution Copy
AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT
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AMENDMENT NO. 3 dated as of June 23, 2003 (this "Amendment") to the
Committed Note Purchase and Security Agreement, dated as of May 10, 2002, as
previously amended by Amendment No. 1 thereto, dated as of June 15, 2002, and by
Amendment No. 2 thereto, dated as of November 21, 2002 (as amended, the "Note
Purchase Agreement"), among NEW CENTURY FUNDING I, a Delaware statutory trust
(the "Note Issuer" or the "Trust"), each Person party thereto as a Purchaser or
a Noteholder from time to time, and UBS WARBURG REAL ESTATE SECURITIES INC. as
Agent for the Purchasers and the Noteholders (the "Agent").
RECITALS
The Note Issuer has requested that the Agent agree to amend certain
provisions of the Note Purchase Agreement as set forth in this Amendment. The
Agent is willing to agree to such amendments, but only on the terms and subject
to the conditions set forth below in this Amendment. These Recitals are hereby
incorporated herein and made a part hereof for all purposes.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Note Issuer and the Agent hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, all capitalized terms
herein shall have the respective meanings given for such terms in the Note
Purchase Agreement.
2. Amendments. The following amendments (specified in paragraphs (a) -
(d) below) to the Note Purchase Agreement shall apply as of the date hereof upon
the execution of this Amendment by all the parties hereto:
(a) The following new definitions shall be added in the appropriate
alphabetical order as follows:
"Between 95% and 100% LTV Mortgage Loan" shall mean a Mortgage Loan
with an LTV or a CLTV of between 95% (inclusive) and 100%.
"Between 95% and 100% LTV Mortgage Loan Sub-Limit" shall mean, at any
time, that the aggregate principal balance of all Between 95% and 100% LTV
Mortgage Loans may not exceed 5% of the then aggregate outstanding
principal amount of the Notes.
"Greater Than 80% LTV Mortgage Loan" shall mean a Mortgage Loan with
an LTV or a CLTV of more than 80%. The term Greater Than 80% LTV Mortgage
Loan shall also mean and include a Greater Than 90% LTV Mortgage Loan and a
Between 95% and 100% LTV Mortgage Loan.
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"Greater Than 80% LTV Mortgage Loan Sub-Limit" shall mean, at any
time, that the aggregate principal balance of all Greater Than 80% LTV
Mortgage Loans may not exceed 45% of the then aggregate outstanding
principal amount of the Notes.
"Greater Than 90% LTV Mortgage Loan" shall mean a Mortgage Loan with
an LTV or a CLTV of more than 90%. The term Greater Than 90% LTV Mortgage
Loan shall also mean and include a Between 95% and 100% LTV Mortgage Loan.
"Greater Than 90% LTV Mortgage Loan Sub-Limit" shall mean, at any
time, that the aggregate principal balance of all Greater Than 90% LTV
Mortgage Loans may not exceed 10% of the then aggregate outstanding
principal amount of the Notes.
(b) The defined term "New Century Parties is amended to read as
follows: "New Century Parties" shall mean collectively, New Century
Financial, New Century Mortgage and New Century Capital Corporation.
(c) The definition "Collateral Value" is hereby amended by (A)
renumbering clauses (v) and (vi) thereof as clauses (viii) and (ix),
respectively, (B) by inserting new clauses (v), (vi) and (vii) as follow:
(v) the aggregate Collateral Value of Between 95% and 100%
LTV Mortgage Loans may not exceed the Between 95% and 100% LTV
Mortgage Loan Sub-Limit at any time;
(vi) the aggregate Collateral Value of Greater Than 80% LTV
Mortgage Loans may not exceed the Greater Than 80% LTV Mortgage Loan
Sub-Limit at any time;
(vii) the aggregate Collateral Value of Greater Than 90% LTV
Mortgage Loans may not exceed the Greater Than 90% LTV Mortgage Loan
Sub-Limit at any time;
(C) by deleting the final word "or" of item (9), (D) by inserting new
items (10), (11) and (12) at renumbered clause (viii) as follow:
(10) which is a Between 95% and 100% LTV Mortgage Loan and
exceeds the Between 95% and 100% LTV Mortgage Loan Sub-Limit;
(11) which is a Greater Than 80% LTV Mortgage Loan and exceeds
the Greater Than 80% LTV Mortgage Loan Sub-Limit; or
(12) which is a Greater Than 90% LTV Mortgage Loan and exceeds
the Greater Than 90% LTV Mortgage Loan Sub-Limit;
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and (E) by deleting both appearances of the phrase "(i) through (v)"
in renumbered clause (ix) and replacing it in each instance with the phrase
"(i) through (viii)".
(d) The defined term "Commitment Amount" in the Note Purchase
Agreement is hereby amended to read as follows:
"'Commitment Amount' shall mean $750,000,000, subject to reduction
from time to time as provided herein; provided, that if the making of
any Note Purchase hereunder would result in the aggregate principal
amount of Notes outstanding hereunder to exceed $1,000,000,000, then
the maximum amount of such Note Purchase (and the Commitment Amount
hereunder) will be reduced such that the total amount of Notes
outstanding hereunder, together with notes outstanding and issued by
the Issuer, will not exceed $1,000,000,000."
The parties acknowledge that the $1,000,000,000 figure reflects an
additional $250,000,000 which may be advanced to the Issuer as an
uncommitted amount, in the sole and absolute discretion of the Agent.
(e) Paragraph 6.02(d) shall be deleted in its entirety and replaced
with the following:
"(d) the Agent shall have completed its due diligence review of
the Mortgage Documents for each Mortgage Loan and such other
documents, records, agreements, instruments, Mortgage Properties or
information relating to such Mortgage Loans as the Agent in its sole
discretion deems appropriate to review and such review shall be
satisfactory to the Agent in its sole discretion, it being understood
and agreed by the Note Issuer that any such review which precedes the
related Note Purchase Date shall not in any way limit the Agent's
continuing right to perform one or more Due Diligence Reviews pursuant
to Section 13.14 hereof following the related Note Purchase Date;"
3. Representations and Warranties. To induce the Agent to enter into this
Amendment, the Note Issuer hereby represents and warrants to the Agent that,
after giving effect to the amendments provided for herein, the representations
and warranties contained in the Note Purchase Agreement and the other Note
Documents will be true and correct in all material respects as if made on and as
of the date hereof and that no Default or Event of Default will have occurred
and be continuing.
4. No Other Amendments. Except and to the extent expressly amended
herein, the Note Purchase Agreement shall remain in full force and effect,
without any waiver, or additional amendment or modification of any other
provision thereof.
5. Expenses. The Note Issuer hereby agrees to cause the Administrator to
pay and reimburse the Agent for all of the reasonable out-of pocket costs and
expenses incurred by the Agent in connection with the preparation, execution and
delivery of this
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Amendment, including, without limitation, the reasonable fees and disbursements
of Xxxxx Xxxxxxxxxx LLP, counsel to the Agent.
6. Governing Law. This Amendment, in all respects, shall be governed by,
and construed in accordance with, the laws of the State of New York, including
all matters of construction, validity and performance, without regard to
principles of conflicts of law.
7. Counterparts. This Amendment may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts together shall constitute but one and the
same instrument.
8. Merger and Integration. Upon execution of this Amendment by the
parties to the Agreement, this Amendment shall be incorporated into and merged
together with the Agreement. Except as provided herein, all provisions, terms
and conditions of the Agreement shall remain in full force and effect and the
Agreement as hereby amended is further ratified and reconfirmed in all respects.
9. Capitalized Terms. Capitalized terms used herein and not defined
herein have their respective meanings as set forth in the Agreement.
10. Voting Rights. For the convenience of cross-referencing, reference is
hereby made to that certain direction letter of even date herewith (the
"Direction Letter") wherein New Century Mortgage Corporation, as the
Administrator of New Century Funding I under the Administration Agreement and
the Depositor under the Trust Agreement, (a) directs Wilmington Trust Company to
take all such action with respect to the Trust as is consistent with the terms
and conditions of each of the Agreement and the Trust Agreement and (b) thereby
represents and warrants that (i) it is the holder of the majority of Voting
Rights (as defined in the Trust Agreement) and (ii) the actions to be taken by
Wilmington Trust Company pursuant to the Direction Letter and hereunder are
authorized by, and do not conflict with, the Transaction Documents.
11. Liability. It is expressly understood and agreed by the parties that
(a) this Amendment is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely as Owner Trustee, in the exercise of the
powers and authority conferred and vested in it, pursuant to the Trust
Agreement, (b) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but is
made and intended for the purpose of binding the Trust with respect thereto, (c)
nothing herein contained shall be construed as creating any liability on
Wilmington Trust Company, individually or personally, to perform any covenant
either expressly or impliedly contained herein, and the right to claim any and
all such liability, if any, being expressly waived by the parties hereto and by
any person claiming by, through or under the parties hereto, and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust hereunder or under
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any other related documents. Nothing expressed or implied in the preceding
sentence, however, shall alter the terms and conditions of Section 5.1 of the
Trust Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
3 to the Note Purchase Agreement to be duly executed and delivered as of the day
and year first above written.
NOTE ISSUER
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NEW CENTURY FUNDING I
By: WILMINGTON TRUST COMPANY, not in
its individual capacity, but solely
as Owner Trustee under the Trust
Agreement
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
Address for Notices:
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New Century Funding I
c/o Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telecopy No.: 000-000-0000 or 000-000-0000
Telephone No.: 000-000-0000
With a copy to:
New Century Funding I
c/o New Century Mortgage Corporation
0000 Xxx Xxxxxx,
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx, Esq.
Telecopier No.: 000-000-0000
Telephone No.: 000-000-0000
[Signature page for Amendment No. 3 to Note Purchase Agreement]
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AGENT
UBS WARBURG REAL ESTATE SECURITIES INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Managing Director
Address for Notices:
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0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxxxxxxxx
Telecopier No: 000-000-0000
Telephone No: 000-000-0000
PURCHASER AND NOTEHOLDER
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UBS WARBURG REAL ESTATE SECURITIES INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxxx
Title: Managing Director
[Signature page for Amendment No. 3 to Note Purchase Agreement]
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Address for Notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Xxxxxx X. Xxxxxxxxxxxx
Telecopier No: 000-000-0000
Telephone No: 000-000-0000
[Signature page for Amendment No. 3 to Note Purchase Agreement]
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