Exhibit 10.7
MASTER CONTRIBUTION AGREEMENT
MASTER CONTRIBUTION AGREEMENT, dated as of May 30, 2002 (this
"Agreement"), by and between NEW CENTURY MORTGAGE CORPORATION, as guarantor and
contributor ("Contributor"), and NEW CENTURY FUNDING SB-1, as Company
("Company").
Contributor owns 100% of the outstanding equity of Company.
Contributor intends to contribute to the capital of Company, from time to time,
certain loans (the "Contributed Assets") in accordance with the terms hereof
(with respect to the Contributed Assets contributed on any such date, each a
"Closing Date"). Each of Contributor and Company has duly authorized the
execution, delivery and performance of this Agreement for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
In consideration of the mutual agreements herein contained,
Contributor and Company agree as follows:
l. All capitalized terms not defined herein shall have the meanings
assigned to them in the Master Repurchase Agreement, dated as of May 30, 2002
(the "Repurchase Agreement"), between Company and Salomon Brothers Realty Corp.
("Buyer"), as amended or restated.
2. On the Business Day preceding each Closing Date, Contributor shall
deliver a Transaction Notice in accordance with the provisions of the Repurchase
Agreement. Contributor hereby agrees that the Purchased Assets identified in
each such Transaction Notice shall be Contributed Assets hereunder. On or before
each Closing Date, Contributor shall execute and deliver to the Custodian, on
behalf of Company and Buyer, a Confirmation of Contribution in substantially the
form of Exhibit 1 hereto with respect to the related Contributed Assets, whereby
Contributor shall contribute to the capital of, assign, transfer, set over and
otherwise convey to Company, without recourse, all of the right, title and
interest in, to and under such Contributed Assets, including without limitation
all amounts distributable in respect of such Contributed Assets payable after
such Closing Date; provided, however, that notwithstanding the failure of
Contributor to execute such Confirmation of Contribution, if a Transaction is
entered into pursuant to the Repurchase Agreement, the contribution of the
related Purchased Assets shall be conclusively deemed to have occurred on the
initial Purchase Date of such Purchased Assets. In accordance with the terms of
the Repurchase Agreement, Contributor agrees to remit, or cause to be remitted,
to Buyer or the Custodian, as appropriate, immediately upon receipt thereof, any
amount in respect of any Contributed Asset distributed directly to or otherwise
received by Contributor after the related Closing Date.
3. The parties hereto acknowledge that Company intends to sell and
transfer the Contributed Assets to Buyer pursuant to the terms of the Repurchase
Agreement. Accordingly, Company hereby instructs Contributor to deliver the
Contributed Assets directly to Buyer, or its designee, as designee of Company,
in accordance with the terms and provisions of the
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Repurchase Agreement and the Custody Agreement.
4. It is intended that the conveyance of the Contributed Assets by
Contributor to Company as provided hereby be, and be construed as, an absolute
contribution of the Contributed Assets to the capital of Company by Contributor.
Furthermore, it is not intended that such conveyance be deemed a pledge of such
Contributed Assets by Contributor to Company to secure a debt or other
obligation of Contributor. However, in the event that, notwithstanding the
intent of the parties, such Contributed Assets are held to be property of
Contributor, or if for any reason this Agreement is held or deemed to create a
security interest in such Contributed Assets, then it is intended that:
(a) this Agreement shall also be deemed a security agreement
within the meaning of Articles 8 and 9 of the New York Uniform
Commercial Code and the Uniform Commercial Code of any other applicable
jurisdiction;
(b) the conveyance provided for in this Section shall be
deemed to be a grant by Contributor to Company of a security interest
in all of Contributor's right (including the power to convey title
thereto), title and interest, whether now owned or hereafter acquired
in, to and under the Contributed Assets, and all payments and other
distributions thereon after the Closing Date, and all proceeds of the
foregoing;
(c) the possession by Company (or any subsequent assignee,
including, without limitation, Buyer) or its agent of the Contributed
Assets or such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be
"possession by the secured party," or possession by a purchaser or a
person designated by such secured party, for purposes of perfecting the
security interest pursuant to the New York Uniform Commercial Code and
the Uniform Commercial Code of any other applicable jurisdiction
(including, without limitation, Sections 9-313, 8-313 or 8-321
thereof); and
(d) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments,
receipts or confirmations from, financial intermediaries, bailees or
agents (as applicable) of Company (or any subsequent assignee,
including, without limitation, the Custodian) for the purpose of
perfecting such security interest under applicable law.
Contributor shall take such actions as may be reasonably
deemed necessary to ensure that, if this Agreement were deemed to create a
security interest in such Contributed Assets and other property described above,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Repurchase Agreement; provided, however, that
absent notice from Buyer to the contrary, Contributor shall be conclusively
deemed to have satisfied the provisions of this paragraph as to any Contributed
Asset that is subject to a
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Transaction (as such term is defined in the Repurchase Agreement) if with
respect to such Contributed Asset, Contributor has performed all of
Contributor's obligations as set forth in the Repurchase Agreement and the
Custody Agreement as the same may be amended from time to time.
5. Contributor hereby covenants and agrees that:
(a) it will pay from its own funds and assets (and not
Company's) all obligations and indebtedness incurred by it;
(b) it will not conduct its business in the name of Company;
(c) it will not operate or purport to operate as an integrated,
single economic unit with respect to Company or seek or obtain credit
or incur any obligation to any third party based on the assets of
Company or induce any such third party to reasonably rely on the
creditworthiness of Company in connection therewith;
(d) the accounting records of Contributor will disclose the
effect of the transactions contemplated hereby in accordance with
generally accepted accounting practices and relevant pronouncements;
and
(e) Immediately prior to its transfers provided for herein,
Contributor had good title to, and was the sole owner of, each
Contributed Asset, free and clear of any pledge, lien, encumbrance or
security interest.
6. With respect to each Contributed Asset, Contributor hereby makes
all of the applicable representations and warranties set forth in Appendix A to
the Custody Agreement as of the related Closing Date and the date the Loan File
is delivered to the Custodian in accordance with the Custody Agreement.
Contributor hereby acknowledges that Buyer is relying upon the representations,
warranties and covenants made by it in this Agreement, the Repurchase Agreement
and the Custody Agreement, and agrees that Buyer and its successors and assigns
are entitled to enforce the remedies for a material breach of such
representations, warranties and covenants directly against Contributor. In
addition, Contributor agrees to make the representations and warranties set
forth in Appendix A to the Custody Agreement as of the "cut-off date" of the
securitization or whole loan sale of the related Loans by Company or Buyer, as
applicable; provided, however, that to the extent that Contributor has at the
time of such securitization or whole loan sale actual knowledge of any facts or
circumstances that would render any of such representations and warranties
materially false, Contributor shall have no obligation to make such materially
false representation and warranty.
7. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns. Buyer is an
intended third party beneficiary of this Agreement, entitled to enforce the
provisions hereof as if a party hereto.
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8. Except as provided herein, any notice required or permitted by
this Agreement shall be in writing and shall be effective and deemed delivered
only when received by the party to which it is sent; provided, however, that a
facsimile transmission shall be deemed to be received when transmitted so long
as the transmitting machine has provided an electronic confirmation (without
error message) of such transmission. Any such notice shall be sent to a party at
the address or facsimile transmission number set forth below:
if to Contributor,
New Century Mortgage Corporation
00000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to Company,
New Century Funding SB-1
c/o Christiana Bank & Trust Company
0000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
with a copy to:
New Century Funding Corporation
as administrator of New Century Funding SB-1
00000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICT OF LAWS PROVISIONS
THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Neither this Agreement nor any term hereof may be changed, waived
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought. This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original, and which taken together shall
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constitute one and the same instrument.
11. This Agreement shall remain in full force and effect until the
Termination Date of the Repurchase Agreement.
12. It is expressly understood and agreed by the parties hereto that
(a) this Agreement is executed and delivered by Christiana Bank & Trust Company,
not individually or personally but solely as trustee of the Seller, in the
exercise of the powers and authority conferred and vested in it, (b) each of the
representations, undertakings and agreements herein made on the part of the
Seller is made and intended not as personal representations, undertakings and
agreements by Christiana Bank & Trust Company but is made and intended for the
purpose for binding only the Seller, (c) nothing herein contained shall be
construed as creating any liability on the Christiana Bank & Trust Company,
individually or personally, to perform any covenant either expressed or implied
contained herein, 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 the Christiana Bank & Trust Company
be personally liable for the payment of any indebtedness or expenses of the
Seller or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Seller under this Agreement or
any other related documents.
[signature page follows]
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IN WITNESS WHEREOF, Contributor and Company have caused this
Agreement to be duly executed by their respective officers thereunto duly
authorized as of the day and
year first above written.
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: President
Title:
NEW CENTURY FUNDING SB-1
By: Christiana Bank & Trust Company, not
in its individual capacity but solely as
trustee
By: /s/ Xxxxx X. Xxxxxxx
Name: Trust Officer
Title:
EXHIBIT 1
FORM OF CONFIRMATION OF CONTRIBUTION
On this __ day of __________, 200_, New Century Mortgage Corporation
("Contributor"), for value received, does hereby contribute to the capital of,
assign, transfer and convey to New Century Funding SB-1 ("Seller"), and Seller
does hereby simultaneously sell, transfer, assign, set over and convey to
Salomon Brothers Realty Corp. ("Buyer"), without recourse (except as set forth
in the Master Contribution Agreement and the Master Repurchase Agreement
referred to below), all of the right, title and interest of Contributor and
Seller, respectively, in and to each Loan described on the loan schedule
attached hereto (the "Loan Schedule") and the related Loan Files, including any
and all rights, benefits, proceeds and obligations arising therefrom or in
connection therewith after the date hereof. Each Loan set forth on the attached
Loan Schedule shall be subject to the Master Contribution Agreement, dated as of
May 30, 2002 (the "Master Contribution Agreement"), between Contributor and
Seller, and the Master Repurchase Agreement, dated as of May 30, 2002 (the
"Master Repurchase Agreement"), between Seller and Buyer, from the date hereof.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Master Contribution Agreement and the Master
Repurchase Agreement, as applicable.
Section 12 of the Master Contribution Agreement is incorporated
herein by reference and shall apply to this Confirmation of Contribution as it
applies to the Master Contribution Agreement.
This Confirmation of Contribution shall be governed by, and construed
in accordance with, the laws of the State of New York.
NEW CENTURY MORTGAGE
CORPORATION
By:__________________________________
Name:
Title:
NEW CENTURY FUNDING SB-1
By: Christiana Bank & Trust Company,
not in its individual capacity but solely as
trustee
By:
Name:
Title: