EXHIBIT 10.82
FIRST AMENDMENT TO
RESTATED PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO RESTATED PURCHASE AGREEMENT (the "Amendment")
dated as of February 28, 2001 is by and between NEW CENTURY MORTGAGE
CORPORATION a corporation organized under the laws of the State of California
(the "Se1ler"), and U.S. BANK NATIONAL ASSOCIATION, a national banking
association (the "Purchaser").
WITNESSETH THAT:
WHEREAS, the Seller and the Purchaser are parties to a Restated Purchase
Agreement dated as of July 31, 2000 (the "Purchase Agreement"), pursuant to
which the Purchaser may, from time to time, purchase assets from the Seller; and
WHEREAS, the Seller and the Purchaser have agreed to amend the Purchase
Agreement upon the terms and conditions herein set forth;
NOW, THEREFORE, for value received, the receipt and sufficiency of which
are hereby acknowledged, the Seller and the Purchaser agree as follows:
1. Certain Defined Terms. Each capitalized term used herein without being
defined herein that is defined in the Purchase Agreement shall have the meaning
given to it therein.
2. Amendment to Purchase Agreement. The Purchase Agreement is hereby
amended as follows:
(a) The definition of "Related Assets" in Section 1.01 of the
Purchase Agreement is amended to read as follows;
"Related Assets": with respect to any Receivable or Servicing
Contract the following:
(a) any agreement, document or instrument evidencing or
securing such Receivable or Servicing Contract, pursuant to which
such Receivable or Servicing Contract arose, by which such
Receivable or Servicing Contract is governed, or relating to such
Receivable or Servicing Contract, including, without limitation,
with respect to Mortgage Loans, Mortgage Notes and Mortgages;
(b) all guaranties related to such Receivable or Servicing
Contract;
(c) all real or personal property, contract rights, accounts,
general intangibles, or other proceeds, amounts or payments relating
to such Receivable or Servicing Contract;
(d) with respect to each Foreclosure Advance Receivable, Pool
P&I Payment Receivable, T&I Payment Receivable and Servicing
Contract, all right, title and interest of the Seller in and to all
Mortgage Loans in connection with which such Receivable arose or was
serviced pursuant to such Servicing Contract, and all Mortgage Notes
and Mortgages related thereto;
(e) all title opinions or title insurance policies, escrow
accounts, documents, instruments, files, surveys, certificates,
correspondence, appraisals, computer programs, tapes, discs, cards,
accounting records (including all information, records, tapes, data,
programs, discs and cards necessary or helpful in the administration
or servicing of Mortgage Loans) and other information and data of
the Seller relating to such Receivable or Servicing Contact; and
(f) all additions to, modifications of, replacements for,
payments in respect of, and proceeds of the foregoing.
(b) Section 1.01 of the Purchase Agreement is further amended to add the
following definition in the appropriate alphabetical order:
"Purchased Servicing Contracts" Servicing Contracts purchased by
the Purchaser, and not repurchased by the Seller, hereunder.
(c) Sections 2.01, 2.02 and 2.03 of the Purchase Agreement are amended to
read as follows:
Section 2.01 The Purchases. From time to time during the Effective
Period, the Seller may request that the Purchaser purchase from the Seller
Eligible Receivables or Servicing Contracts, together with the Related
Assets with respect thereto, by delivery to the Purchaser of a properly
completed Purchase Request. The Purchaser shall advise the Seller within
five business Days whether it wishes in its sole discretion to buy all
of such Eligible Receivables or Servicing Contracts, together with the
Related Assets, on the terms set fort in such Purchase Request. If the
Purchaser accepts a Purchase Request, on the Closing Date specified in
such Purchase Request, the Seller shall sell to the Purchaser, and the
Purchaser shall purchase from the Seller, the Receivables and Servicing
Contracts described on such Purchase Request, together with the Related
Assets and the Collections, for the Purchase Price specified therein. This
Agreement and the Purchase Requests shall evidence the terms and
understanding of the parties with
2
respect to any such purchase of Eligible Receivables and Servicing
Contracts, together with the Related Assets. All income, gains, profits,
and losses with respect to each Eligible Receivable and Servicing
Contracts purchased hereunder shall be the property of the Purchaser.
Section 2.02 Purchase Price. The purchase price (the "Purchase
Price") for each pool of Eligible Receivables or Servicing Contracts,
together with the Related Assets, purchased hereunder shall be equal
to a percentage of the Outstanding Balance thereof (in the case of
Eligible Receivables), a percentage of the principal balance of the
Mortgage Loans serviced thereunder (in the case of Servicing Contracts),
or a fixed dollar amount, as set forth in the related Purchase Request.
Section 2.03 Payment of the Purchase Price. On the applicable
Closing Date, the Purchaser will pay the Seller the Purchase Price for the
pool of Eligible Receivables or Servicing Contracts purchased hereunder on
such date by deposit in lawful money of the United States of America in
same day funds to Seller's account number 1 [ILLEGIBLE] 00-0000-0000
maintained with U.S. Bank National Association
(d) Section 4.01(o) of the Purchase Agreement is amended to read as
follows:
(o) each Purchased Receivable is either a Mortgage Loan or a valid,
enforceable right to retain payments on the related Mortgage Loan(s) or
proceeds of the foreclosure of the related Mortgages, senior to the right
of any other Person, and no condition exists as to any Receivable that
will impair or materially delay payment thereof; each Purchased Servicing
Contract is a valid, enforceable right to service Mortgage Loans for the
compensation set forth therein, and no event exists as to any Purchased
Servicing Contract that would give any Person the right to terminate such
Servicing Contract;
(e) Section 6.02 of the Purchase Agreements amended to add the following
after clause (j) thereof:
(k) the termination of any Purchased Servicing Contract as a result
of any default by Seller thereunder.
(f) Sections 7.01 and 7.02 of the Purchase Agreement are amended to read
as follows:
7.01 Seller's Repurchase Option. The Seller may, on the Repurchase
Option Date set forth in the applicable Purchase Request, repurchase 100%
of the Outstanding Balance of all Purchased Receivables and Purchased
Servicing Contracts described in such Purchase Request by paying to the
Purchaser the
3
Repurchase Price therefor on such Repurchase Option Date (the Repurchase
Date"), which shall be no less than two Business Days after the
Purchaser's receipt of the Seller's notice of exercise of option to
repurchase such Purchased Receivable or Purchased Servicing Contract.
7.02 Repurchase Price. In the case of any repurchase by Seller of
any Purchased Receivable or Purchased Servicing Contract pursuant to the
provisions of Section 7.01 hereof, the Seller shall, on the applicable
Repurchase Date, pay to the Purchaser an amount (the "Repurchase Price")
equal to a percentage of the Outstanding Balance thereof (in the case of a
Receivable), a percentage of the principal balance of the Mortgage Loans
serviced thereunder (in the case of a Servicing Contract), or a fixed
dollar amount, as set forth in the related Purchase Request, less the
aggregate amount collected by the Servicer and remitted to the Purchaser
in respect of such Purchased Receivables or Purchased Servicing Contracts.
The Seller shall have no right to rescind its option to repurchase any
Purchased Receivable or Purchased Servicing Contact once notice of
exercise has been given to the Purchaser.
(g) Article VIII of the Agreement is amended to add the following after
Section 8.06:
Section 8.06. Servicing Transfer. (a) The Seller agrees that if
it does not repurchase any Servicing Contracts purchased hereunder on the
applicable Repurchase Date, the Seller shall, at the request of the
Purchaser, transfer the physical task of servicing Mortgage Loans under
such Servicing Contracts to the Purchaser, at the Purchaser's request. The
Seller further acknowledges that, until the Purchaser exercises such
option and for a period of time thereafter, as to any Servicing Contracts
(the "Interim Period"), Purchaser will not be able to directly assume and
perform the physical tasks of such servicing. During the Interim Period,
the Seller agrees to service all Mortgage Loans as provided in this
Section 8.06 and in accordance with the provisions of the related
Servicing Contracts as the interim servicer for the benefit of the
Purchaser. Until the expiration of the Interim Period for any Servicing
Contract, Seller shall make all advances required thereunder. The Seller
shall maintain a complete set of books and records for the Servicing
Contracts which shall be clearly marked to reflect the ownership of such
Servicing Contracts by Purchaser and the entitlement of the Purchase: to
the servicing fees and ancillary income following the Purchase Date. The
Purchaser agrees to pay to the Seller an interim servicing fee equal to
$15 per loan per Due Period (as defined in the Servicing Contracts) during
the Interim Period (in each case, pro-rated for any partial Due Period).
The Seller and the Purchaser mutually agree that no later than five (5)
Business Days after the end of each calendar month during the Interim
Period the Seller shall deliver to the Purchaser all servicing fees and
ancillary income received during the prior Due Period as the Seller would
have been entitled to prior to the Purchase Date.
4
(b) The Seller and the Purchaser shall notify each Bond Insurer and
Trustee thirty (30) days prior to the date the Purchaser is to assume the
physical tasks of such servicing (the "Transfer Date") for any Servicing
Contract.
(c) Prior to the Transfer Date, unless otherwise agreed by the
parties, the Seller shall, at the Seller's expense, notify each borrower
of the transfer of the Servicing Contracts and instruct the borrower to
remit all monthly payments on the serviced Mortgage Loans and all tax and
insurance notices to the Purchaser after the Transfer Date. Such letters
shall be mailed on such date and be in such form as is reasonably
acceptable to the Purchaser. The Seller shall exchange copies of the
"hello-goodbye" letters with the Purchaser prior to mailing such letters
and shall cooperate on a joint mailing program for notification to the
Borrowers. The Seller shall also, at Sellers expense, notify any custodian
and insurance companies and/or agents, that the Servicing Contracts are
being transferred and instruct such entities to deliver all payments,
notices, and insurance statements to the Purchaser after the Transfer
Date. Such notices shall instruct such entities to deliver, from and after
the Transfer Date, all applicable payments, notices, bills, statements,
records, files and other documents to Purchaser. All such notices sent to
hazard, flood, earthquake, private mortgage guarantee and other insurers
shall comply with the requirements of the application master policies and
shall instruct such insurers to change the mortgagee clause to "U.S. Bank
National Association, its successors and assigns" or as otherwise required
under applicable Servicing Contract. Seller shall be responsible for the
cost of preparing and delivering all notices described in this subsection
(c) and shall provide Purchaser with a copy of the form of each notice
used by Seller to comply with this Section.
(d) The Seller shall provide each Borrower with an annual year-end
statement in accordance with the Servicing Contracts, and Internal Revenue
Service or Treasury Department regulations. Such statement shall reflect
the status of the Mortgage Loan up to and including the Transfer Date. The
Purchaser shall not have any responsibility for providing such information
for the period of time the Mortgage Loan was serviced or interim serviced
by the Seller.
(e) The Seller shall cooperate with the Purchaser to accomplish an
EDP tape transfer of any tax contracts that are in effect, and reasonably
promptly following the Transfer Date the Seller shall assign to the
Purchaser "life-of-loan" assignable tax contracts with Fidelity National
Tax Service or another nationally recognized tax contract provider on each
Mortgage Loan. The Seller shall also pay any fees required to transfer
the existing transferable tax service contracts to the Purchaser. In the
event that such a "Life-time" tax contract is not present in force, not
presently assignable to the Purchaser or not documented with a complete
EDP tax record, the Seller agrees to pay all fees necessary to obtain
5
tax contract for the related Mortgage Loan.
(f) The Seller and the Purchaser acknowledge that, during the sixty
(60) day period after the Transfer Date, all funds received in connection
with the Mortgage Loans, including, but not limited to, tax, insurance,
principal, interest and all other types of payments, including, without
limitation, mortgage guaranty or mortgage insurance payments, insurance
loss drafts and tax refunds, are to be immediately paid over to the
Purchaser without offset or deduction. The Purchaser shall be entitled to
the service fees and other servicing related income on all such payments.
During such sixty (60) day period such funds shall be identified by the
Seller's loan numbers and shall be immediately transferred to the
Purchaser at the Seller's expense by overnight courier, for next Business
Day delivery, at the address for notices to the Purchaser. In addition,
Seller shall deliver cause to be delivered to the Purchaser, as promptly
as practicable after receipt by Seller, copies of all correspondence
received from any investor or any Borrower or otherwise relating to any
Mortgage Loans. Following such sixty (60) day period, all such funds and
correspondence shall be returned to the sender with a letter of
explanation a copy of which letter shall be sent to the Purchaser. The
Seller hereby covenants and agrees that it shall maintain such staff and
facilities during such sixty (60) day period that are sufficient to
perform all of such responsibilities.
(g) The Seller will cause its service bureau and/or EDP department
to cooperate with the Purchaser, and the Seller will provide a test tape,
trial tape, and an accurate conversion tape containing all history
maintained by the service bureau from with respect to the 5 years
preceding each Transfer Date, Pool and loan information as of the
Transfer Date so as to complete the conversion of all loan, Pool, and
security information recorded on an EDP to EDP basis, or such other basis
as may reasonably be requested by Purchaser. Such tapes shall be provided
to Purchaser.
(h) After the Purchase Date, unless and until any Purchased
Servicing Contacts are repurchased by Seller, the sole and exclusive
ownership of the Purchased Servicing Contracts shall vest in the
Purchaser. The possession of all mortgage files and other books, records,
accounts and funds by the Seller following the Closing Date is solely in a
fiduciary capacity for and at the will of the Purchaser.
(i) If required under the applicable Servicing Contract, the Seller
will use its best efforts to obtain and deliver to the Purchaser prior to
the Transfer Date an approval by the Seller's document custodian(s)
reflecting its or their willingness to continue to perform the custodial
activities for the Purchaser. The Seller shall pay all fees to the
custodian when due if the related Servicing Contracts does not provide for
such custodial fees to be paid from collections or other sources and the
6
Purchaser shall have no liability for such fees. The Seller will
facilitate the presentation and execution of a new custodial agreement or.
at the Purchaser's option, the assignment of any existing agreement
between such custodian and the Purchaser. The Purchaser shall have the
option to retain the Seller's custodian or designate a custodian of its
choice.
(j) The Seller will provide a report satisfactory in form and
content to the Purchaser to substantiate compliance with Internal Revenue
Service and other applicable Treasury Department regulations and
requirements applicable to reporting of interest and obtaining Social
Security numbers. The Seller also agrees to provide the certification of
an authorized officer that the Seller has complied with all Internal
Revenue Service and U.S. Treasury Department requirements for due
diligence in obtaining and maintaining tax identification numbers for each
Mortgage Loan transferred. In addition to the foregoing, the Seller agrees
to reimburse the Purchaser for any and all penalties incurred because of
Internal Revenue Service and, or, Treasury Department requirements for any
missing tax numbers and forms incurred as a result of infractions prior to
the Transfer Date.
(h) Except as otherwise amended above, all references to "Purchased
Receivables" in the Purchase Agreement are amended to be references to
"Purchased Receivables and/or Purchased Servicing Contracts".
(i) Exhibit A to the Purchase Agreement is replaced with Exhibit A to this
Amendment.
3. Conditions to Effectiveness and this Amendment. This Amendment shall
become effective when the Purchaser shall have received a counterpart of this
Amendment, duly executed by the Seller, provided the following conditions are
satisfied:
(a) The Purchaser shall have received the following, each duly executed or
certified, as the case may be, and dated as of the date of delivery thereof:
(i) copy of resolutions of the Board of Directors of the Seller,
certified by its respective Secretary or Assistant Secretary,
authorizing or ratifying the execution, delivery and performance of
this Amendment and the other agreements, documents and instruments
related hereto;
(ii) a certified copy of any amendment or restatement of the
Articles of Incorporation or the By-laws of each Seller made or
entered following the date of the most recent certified copies
thereof furnished to the Purchaser;
(iii) certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if
any) with respect to this Amendment;
7
(iv) an amendment to the UCC-1 financing statements filed in
connection with the Purchase Agreement, executed by the Seller,
naming the Seller as assignor of the Purchased Receivables,
Purchased Servicing Contracts and Related Assets and the Purchaser
as the transferee and assignee thereof, together with such other
similar instruments and documents as in the opinion of the Purchaser
may be necessary or desirable under applicable law to perfect the
Purchaser's interest in all the Purchased Receivables, Purchased
Servicing Contracts and Related Asset; and
(v) such other documents, instruments, opinions and approvals as the
Purchaser may reasonably request.
5. Acknowledgments. The Seller and the Purchaser acknowledge that, as
amended hereby, the Purchase Agreement remains in full force and effect with
respect to the Seller and the Purchaser, and that each reference to the Purchase
Agreement in the Purchase Documents shall refer to the Loan Agreement as amended
hereby. The Seller confirms and acknowledges that it will continue to comply
with the covenants set out in the Purchase Agreement and the other Purchase
Documents, as amended hereby, and that its representations and warranties set
out in the Purchase Agreement and the other Purchase Documents, as amended
hereby, are true and correct as of the date of this Amendment. The Seller
represents and warrants that (i) the execution, delivery and performance of this
Amendment is within its corporate powers and has been duly authorized by all
necessary corporate action; (ii) this Amendment has been duly executed and
delivered by the Seller and constitutes the legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance with its terms
(subject to limitations as to enforceability which might result from bankruptcy,
insolvency, or other similar laws affecting creditors' rights generally and
general principles of equity) and (iii) no Termination Event exists.
6. General.
(a) The Seller agrees to reimburse the Purchaser upon demand for all
reasonable expenses (including reasonable attorneys fees and legal expenses)
incurred by the Purchaser in the preparation, negotiation and execution of this
Amendment and any other document required to be furnished herewith, and to pay
and save the Purchaser harmless from all liability for any stamp or other taxes
which may be payable with respect to the execution or delivery of this
Amendment, which obligations of the Setter shall survive any termination of the
Loan Agreement.
(b) This Amendment may be executed in as many counterparts as may be
deemed necessary or convenient, and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original but
all such counterparts shall constitute but one and the same instrument.
8
(c) Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such provisions
in any other jurisdiction.
(d) This Amendment shall be governed by, and construed in accordance with,
the internal law, and not the law of conflicts, of the State of Minnesota, but
giving effect to federal laws applicable to national banks.
(e) This Amendment shall be binding upon the Seller, the Purchaser and
their respective successors and assigns, and shall inure to the benefit of the
Seller, the Purchaser and the successors and assigns of the Purchaser.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
9
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
NEW CENTURY MORTGAGE
CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
-------------------------
Its EVP
-------------------------
U.S. BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
-------------------------
Its SVP
-------------------------
EXHIBIT A
[Letterhead of New Century Mortgage Corporation]
U.S. Bank National Association
X.X. Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Eligible Receivables and/or Eligible Servicing Contracts described on the
attached list are requested to be purchased by U.S. Bank National Association
(the "Purchaser") on ________________ pursuant to the Restated Purchase
Agreement dated as of July 31, 2000 between the Purchaser and the undersigned.
Capitalized terms used herein are as defined in said Purchase Agreement.
Purchase Price:
-----------------------
Repurchase Option Date:
================
Repurchase Price:
-----------------------
Please credit NCMC Account 1731-0097-1378. Thank you.
Sincerely,
NEW CENTURY MORTGAGE
CORPORATION
By:
-------------------------
Its:
-------------------------
Accepted:
U.S. BANK NATIONAL ASSOCIATION
By:
------------------------
Its:
------------------------
