Exhibit 10.1
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
Among:
CITIGROUP GLOBAL MARKETS REALTY CORP., as Buyer
NEW CENTURY FINANCIAL CORPORATION (f/k/a New Century REIT, Inc.), as
Guarantor
and
NEW CENTURY MORTGAGE CORPORATION, as Seller
Dated as of December 29, 2004
Wet/Dry First Lien Small Balance Commercial Mortgage Loans
TABLE OF CONTENTS
1.
APPLICABILITY
1
2.
DEFINITIONS AND INTERPRETATION
1
3.
THE TRANSACTIONS
13
4.
CONFIRMATIONS
15
5.
PAYMENT AND TRANSFER
15
6.
MARKET VALUE MAINTENANCE
15
7.
INCOME PAYMENTS
15
8.
TAXES; TAX TREATMENT
16
9.
SECURITY INTEREST; BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT
17
10.
CONDITIONS PRECEDENT
19
11.
RELEASE OF PURCHASED LOANS
22
12.
RELIANCE
22
13.
REPRESENTATIONS AND WARRANTIES
22
14.
COVENANTS OF SELLER
25
15.
REPURCHASE DATE PAYMENTS/COLLECTIONS
31
16.
REPURCHASE OF PURCHASED LOANS; CHANGE OF LAW
31
17.
SUBSTITUTION
32
18.
REPURCHASE TRANSACTIONS
32
19.
EVENTS OF DEFAULT
32
20.
REMEDIES
35
21.
DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE
38
22.
USE OF EMPLOYEE PLAN ASSETS
38
23.
INDEMNITY
38
24.
WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS
39
25.
REIMBURSEMENT
40
26.
FURTHER ASSURANCES
40
27.
ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION
41
28.
TERMINATION
41
29.
ASSIGNMENT
41
30.
AMENDMENTS, ETC.
42
31.
SEVERABILITY
42
32.
BINDING EFFECT; GOVERNING LAW
42
33.
WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION AND VENUE; SERVICE OF PROCESS
43
34.
SINGLE AGREEMENT
43
35.
INTENT
43
36.
NOTICES AND OTHER COMMUNICATIONS
44
37.
CONFIDENTIALITY
44
38.
DUE DILIGENCE
45
EXHIBIT A-1
QUARTERLY CERTIFICATION OF SELLER
EXHIBIT A-2
QUARTERLY CERTIFICATION OF GUARANTOR
EXHIBIT B
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO LOANS
EXHIBIT C
UNDERWRITING GUIDELINES
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
Dated as of December 29, 2004
AMONG:
CITIGROUP GLOBAL MARKETS REALTY CORP. ("Buyer"),
NEW CENTURY MORTGAGE CORPORATION, as seller ("Seller"), and
NEW CENTURY FINANCIAL CORPORATION (f/k/a New Century REIT, Inc.), as guarantor
("Guarantor").
W I T N E S S E T H:
WHEREAS, the Buyer and Seller hereto entered into the Master Repurchase
Agreement, dated June 18, 2004 ("Original Agreement");
WHEREAS, the parties desire to enter into this Amended and Restated Master
Repurchase Agreement in order to add New Century Financial Corporation (f/k/a
New Century REIT, Inc.), as guarantor, as a party thereto and to amend and
restate the Original Agreement in its entirety;
WHEREAS, Seller has requested that Buyer agree to certain modifications of the
financial covenants set forth herein and in consideration of the requested
modification, New Century Financial Corporation has agreed to guaranty this
facility pursuant to the Guaranty; and
WHEREAS, Seller and Buyer have agreed to enter into this Amended and Restated
Master Repurchase Agreement and the modifications to the financial covenants as
more fully set forth herein.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the
Buyer, Seller and Guarantor hereby agree as follows:
1. APPLICABILITY
Buyer shall, from time to time, upon the terms and conditions set forth herein,
enter into transactions in which Seller transfers to Buyer Eligible Loans
against the transfer of funds by Buyer, with