Exhibit 10.1
EXECUTION COPY
THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
Among
CDC MORTGAGE CAPITAL INC., as Buyer
NEW CENTURY MORTGAGE CORPORATION, as Seller
NC RESIDUAL II CORPORATION, as Seller
and
NC CAPITAL CORPORATION, as Seller
Dated as of September 10, 2004
TABLE OF CONTENTS
Page
1.
APPLICABILITY
1
2.
DEFINITIONS
1
3.
INITIATION; TERMINATION
18
4.
MARGIN AMOUNT MAINTENANCE
25
5.
INCOME PAYMENTS
26
6.
REQUIREMENTS OF LAW
27
7.
SECURITY INTEREST
28
8.
PAYMENT, TRANSFER AND CUSTODY
30
9.
HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS
31
10.
SELLER'S REPRESENTATIONS
31
11.
COVENANTS OF SELLER
37
12.
EVENTS OF DEFAULT
43
13.
REMEDIES
47
14.
INDEMNIFICATION AND EXPENSES
49
15.
RECORDING OF COMMUNICATIONS
50
16.
SINGLE AGREEMENT
50
17.
NOTICES AND OTHER COMMUNICATIONS
51
18.
ENTIRE AGREEMENT; SEVERABILITY; MODIFICATIONS
51
19.
NON-ASSIGNABILITY
51
20.
TERMINABILITY
52
21.
GOVERNING LAW
52
22.
SUBMISSION TO JURISDICTION; WAIVERS
52
23.
NO WAIVERS, ETC.
53
24.
SERVICING
53
25.
INTENT
55
26.
BUYER'S REPRESENTATIONS
55
27.
NETTING
56
28.
PERIODIC DUE DILIGENCE REVIEW
57
29.
BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT
57
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30.
MISCELLANEOUS
59
31.
CONFIDENTIALITY
59
32.
CONFLICTS
60
33.
SET-OFF
60
34.
OBLIGATIONS JOINT AND SEVERAL
61
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EXHIBITS
SCHEDULE 1
Representations and Warranties Re: Mortgage Loans
SCHEDULE 2
Existing Financing Facilities
EXHIBIT I
Transaction Request
EXHIBIT II
Underwriting Guidelines
EXHIBIT III
Form of Opinion Letter
EXHIBIT IV
UCC Filing Jurisdictions
EXHIBIT V
Form of Account Agreement
EXHIBIT VI
Form of True Sale Certification
EXHIBIT VII-A
Form of Seller's Release Letter
EXHIBIT VII-B
Form of Warehouse Lender's Release Letter
EXHIBIT VIII
Form of Servicer Notice
EXHIBIT IX
Form of Request for Additional Transactions for Excess Margin
EXHIBIT X
Form of Compliance Report
EXHIBIT XI
Assignee Liability Jurisdictions
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THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
This is a THIRD AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT, dated as of
September 10, 2004, among NEW CENTURY MORTGAGE CORPORATION, a California
corporation ("NCMC"), NC RESIDUAL II CORPORATION, a Delaware corporation
("NCRC") and NC CAPITAL CORPORATION, a California corporation ("NCCC", and
together with NCMC and NCRC, "Seller") and CDC MORTGAGE CAPITAL INC., a New York
corporation ("Buyer").
WHEREAS, NCMC, NCCC and the Buyer are parties to that certain Second Amended and
Restated Master Repurchase Agreement, dated as of June 23, 2003 (the "Second
Amended and Restated Repurchase Agreement"), among NCMC, NCCC and the Buyer; and
WHEREAS NCMC and NCCC have requested Buyer to agree to amend certain provisions
of the Second Amended and Restated Repurchase Agreement as set forth in this
Third Amended and Restated Master Repurchase Agreement. The Buyer is willing to
agree to such amendments, but only on the terms and subject to the conditions
set forth in this Third Amended and Restated Master Repurchase Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Seller and the Buyer hereby agree as follows:
1. APPLICABILITY
From time to time the parties