EXHIBIT 10.9
AMENDMENT NUMBER ONE
TO
MASTER REPURCHASE AGREEMENT
DATED AS OF SEPTEMBER 2, 0000,
XXXXXXX
XXXX XX XXXXXXX, X.X., AS BUYER
AND
NEW CENTURY MORTGAGE CORPORATION, HOME123 CORPORATION, NEW CENTURY CREDIT
CORPORATION AND NC CAPITAL CORPORATION, AS SELLERS
AND
NEW CENTURY FINANCIAL CORPORATION, AS GUARANTOR
This AMENDMENT NUMBER ONE TO MASTER REPURCHASE AGREEMENT (this
"Amendment"), dated as of April 13, 2006 (the "Effective Date") is entered into
between NEW CENTURY MORTGAGE CORPORATION, HOME123 CORPORATION, NEW CENTURY
CREDIT CORPORATION and NC CAPITAL CORPORATION ("Sellers"), NEW CENTURY FINANCIAL
CORPORATION ("Guarantor") and BANK OF AMERICA, N.A. ("Buyer").
RECITALS
A. Sellers, Guarantor and Buyer entered into that certain Master Repurchase
Agreement dated as of September 2, 2005 (the "Repurchase Agreement").
B. Buyer, Guarantor and Sellers each desire to modify the terms of the
Repurchase Agreement as set forth in this Amendment.
X. Xxxxxxx, Guarantor and Buyer each have agreed to execute and deliver
this Amendment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and in the Repurchase Agreement, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree to the following:
1. Miscellaneous. For all purposes of this Amendment, except as otherwise
expressly provided or unless the context otherwise requires, (a) unless
otherwise defined herein, all capitalized terms used herein shall have the
meanings attributed to them by the Repurchase Agreement, (b) the capitalized
terms expressly defined in this Amendment have the meanings assigned to them in
this Amendment and include (i) all genders and (ii) the plural as well as the
singular, (c) all references to words such as "herein", "hereof" and the like
shall refer to this Amendment as a whole and not to any particular article or
section within this Amendment, (d) the term "include" and all variations thereon
shall mean "include without limitation", and (e) the term "or" shall include
"and/or".
2. Amendments to the Repurchase Agreement.
(a) In Section 2(a) the following definitions shall be inserted:
"Accounts" shall mean the accounts in the name of the related Seller in
which the related escrow holdback is held, which account has been pledged to the
Buyer as security for the obligations of the Sellers.
"Escrow Hold Back Loan" shall mean a Loan in connection with which the
related Seller has held back an amount in escrow (which is held in an Account)
related to completion of improvements to the Mortgaged Property where such
improvements are not necessary for lawful occupancy of such Mortgaged Property.
"Forty Year Mortgage Loan" shall mean (a) an Option ARM Loan or (b) a Loan
which has been underwritten in accordance with the applicable provisions of the
Xxxxxx Mae Guides except as to maximum principal balance of loans, in each case
which has a forty (40) year amortization period."
"Option ARM Loan" means an Adjustable Rate Loan which (i) provides the
Mortgagor with multiple Monthly Payment options and (ii) may result in Negative
Amortization, as set forth in the Underwriting Guidelines.
(b) In Annex 1, Section 4(b)(iv), the words "and Sellers" shall be deleted.
(c) In Annex 1, Section 4(c)(iii), shall be deleted and the following
inserted in its place:
"Buyer's remedies upon the occurrence of an Event of Default shall be
determined as if all Principals were a single Buyer."
(d) In Xxxxx 0, Xxxxxxx 0 xxxxx xx deleted in its entirety and replaced
with:
"Interpretation of Terms. All references to "Buyer" in the Agreement
shall, subject to the provisions of this Annex I (including, among other
provisions, the limitations on Agent's liability in Section 3 of this Annex
1), be construed to reflect that (i) each Principal shall have, in
connection with any Transaction or Transactions entered into by Agent on
its behalf, the rights, responsibilities, privileges and obligations of a
"Buyer" directly entering into such Transaction or Transactions with the
other party under the Agreement, and (ii) Agent's Principal or Principals
have designated Agent as their sole agent for performance of Buyer's
obligations to Sellers and for receipt of performance by Sellers of their
obligations to Buyer in connection with any Transaction or Transaction
under the Agreement (including, among other things, as Agent for each
Principal in connection with transfers of Securities, cash or other
property and as agent for giving and receiving all notices under the
Agreement). Both Agent and its Principal or Principals shall be deemed
"parties" to the Agreement and all references to a "party" or "either
party" in the Agreement shall be deemed revised accordingly."
(e) Section 8 shall be amended by inserting "and deposit accounts
(including, without limitation, the Accounts)" after "all accounts".
(f) Section 13 shall be amended by inserting the following after paragraph
(v):
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(w) With respect to each Escrow Hold Back Loan, the related Seller (i)
shall hold the related escrow holdback in the related Account and (ii) shall not
withdraw any funds from the related Account prior to receipt by the related
Seller of an appraisal with respect to such Mortgaged Property, subsequent to
completion of the improvements in respect of which the escrow was established.
(g) Appendix A shall be amended as follows:
(i) Paragraph (l) shall be amended by inserting the following at the
beginning of the paragraph:
"Except with respect to an Escrow Hold Back Loan,"
(ii) After Paragraph (ttt) the following shall be inserted:
"(uuu) With respect to each Escrow Hold Back Loan, (i) the related
escrow holdback is held by a title insurance company in the Account
(ii) no funds have been released from the related Account prior to
receipt by the related Seller of an appraisal with respect to such
Mortgaged Property, subsequent to completion of the improvements in
respect of which the escrow was established (iii) such Loan is subject
to a Takeout Commitment by an Approved Purchaser for a purchase price
which takes into account the value of the Mortgaged Property after
completion of the improvements and (iv) in connection with the
addition of a swimming pool, the value of the Mortgaged Property for
the purposes of calculating the loan-to value ratio, assumes that the
improvements to the Mortgaged Property have been completed even if
such improvements have not been completed.
(h) Exhibit C of the Repurchase Agreement shall be deleted and shall be
replaced in its entirety by Schedule One to this Amendment.
3. Servicing Agreement. The Sellers hereby confirm that RBC Centura Bank is no
longer a "Servicer" of any Loans which are subject to Transactions. From the
date hereof, New Century Mortgage Corporation is the Servicer.
4. No Other Changes. Except as expressly modified or amended in this Amendment,
all of the terms, covenants, provisions, agreements and conditions of the
Repurchase Agreement are hereby ratified and confirmed in every respect and
shall remain unmodified and unchanged and shall continue in full force and
effect.
5. Representations. In order to induce the Buyer to execute and deliver this
Amendment, the Sellers hereby represent to the Buyer that as of the date hereof,
after giving effect to this Amendment, the Sellers are in full compliance with
all of the terms and conditions of the Repurchase Agreement and no Default or
Event of Default has occurred and is continuing under the Repurchase Agreement.
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6. Counterparts. This Amendment may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
7. Governing Law; Waiver of Jury Trial. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws without regard to conflicts of laws principles. The
parties hereto each hereby waive the right of trial by jury in any litigation
arising hereunder.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute this Amendment Number One to the Master Repurchase Agreement
as of the date first above written.
BANK OF AMERICA, N.A., as Buyer
By: /s/ Xxxxxxx Xxxx
------------------------------------
Name: Xxxxxxx Xxxx
Title: Principal
NEW CENTURY MORTGAGE CORPORATION,
as Seller, jointly and severally
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
HOME123 CORPORATION, as Seller, jointly
and severally
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
NEW CENTURY CREDIT CORPORATION, as
Seller, jointly and severally
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: President
NC CAPITAL CORPORATION, as Seller,
jointly and severally
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: President
Acknowledged and Agreed:
NEW CENTURY FINANCIAL CORPORATION,
as Guarantor
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
Title: Executive Vice President
