EXHIBIT 10.3
AMENDMENT NO. 1
TO MASTER LOAN AND SECURITY AGREEMENT
This AMENDMENT NO. 1, dated as of April 2, 2001 (this "AMENDMENT"), to the
Master Loan and Security Agreement (the "LOAN AND SECURITY AGREEMENT"), dated as
of December 1, 2000, is between NC Capital Corporation and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ Mortgage Capital Inc.
WITNESSETH:
WHEREAS, the parties hereto desire that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Mortgage
Capital Inc., as Lender under the Loan and Security Agreement, (i) provide
funding to NC Capital Corporation, as Borrower under the Loan and Security
Agreement, with respect to certain seasoned and other mortgage loans originated
by NC Capital Corporation and (ii) modify the funding procedure;
WHEREAS, in furtherance of the foregoing, the parties desire to, among
other things, (i) make certain conforming amendments to the definition of
"Applicable Collateral Percentage," "Applicable Margin," "Unseasoned Mortgage
Loan" and "Collateral Value," (ii) provide for a definition of the terms "bailee
letter," "limited file loan," "discretionary mortgage loans," "seasoned mortgage
loan" and "warehouse lender," (iii) amend Part I and Part II of Schedule 1 to
the Loan and Security Agreement, and (iv) revise Article V to reflect the new
funding procedure;
WHEREAS, pursuant to the Section 11.4 of the Loan and Security Agreement,
the parties hereto are permitted to amend the Loan and Security Agreement;
NOW THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used herein but not defined shall
have the meanings set forth in the Loan and Security Agreement.
SECTION 2. AMENDMENT. The Loan and Security Agreement is hereby amended as
set forth below:
(A) The definition of "Applicable Collateral Percentage" is hereby
amended and restated as follows:
"APPLICABLE COLLATERAL PERCENTAGE" shall mean, except as may be
reduced pursuant to Section 11.16 hereof, for any date of determination and
each type of Eligible Mortgage Loan, the applicable percentage specified
below:
Unseasoned Mortgage Loan 98.5%
Second Lien Mortgage Loan 98.5%
30+ Delinquent Mortgage Loan 85%
60+ Delinquent Mortgage Loan 75%
Defaulted Mortgage Loan the applicable BPO Percentage
Discretionary Mortgage Loans the percentage specified by the
Lender one Business Day prior to
the applicable Funding Date
PROVIDED, HOWEVER, if a Minimum Credit Trigger Event or a Tangible Net
Worth Trigger Event shall have occurred, the Applicable Collateral
Percentage with respect to all Unseasoned Mortgage Loans and all Second
Lien Mortgage Loans shall be reduced to 98%; PROVIDED, FURTHER, if more
than one of the aforementioned categories shall apply to an Eligible
Mortgage Loan, the lower percentage shall be applicable.
(B) The definition of "Applicable Margin" is hereby amended and
restated as follows:
"APPLICABLE MARGIN" shall mean, except as may be increased pursuant to
Section 11.16 hereof, the sum of the weighted average of the applicable
rates per annum for each type of Eligible Mortgage Loan for each day that
Loans shall be secured by such Eligible Mortgage Loans. For each type of
Eligible Mortgage Loan, the applicable rate shall be equal to the product
of (a) a fraction equal to (1) the Collateral Value of all Eligible
Mortgage Loans of such type, divided by (2) the Collateral Value of all
Eligible Mortgage Loans, and (b) the applicable percentage specified below;
PROVIDED, HOWEVER, if more than one of the following categories shall apply
to an Eligible Mortgage Loan, the higher percentage shall be applicable:
Unseasoned Mortgage Loan 1.05%
Second Lien Mortgage Loan 1.05%
30+ Delinquent Mortgage Loan 1.25%
60+ Delinquent Mortgage Loan 1.25%
Defaulted Mortgage Loan 1.50%
Discretionary Mortgage Loans the percentage specified by the
ender one Business Day prior to
the applicable Funding Date
(C) Section 1.1 is hereby amended to add the following defined term
after the term "Applicable Margin":
"BAILEE LETTER" shall mean the letter with respect to a Limited File
Loan, substantially in the form of Exhibit E-3 attached hereto.
(D) The definition of the term "Collateral Value" is hereby amended
and restated as follows:
"COLLATERAL VALUE" shall mean, with respect to each Eligible Mortgage
Loan, the lesser of (a) the product of (i) the Market Value of such
Eligible
2
Mortgage Loan, and (ii) the Applicable Collateral Percentage for such
Eligible Mortgage Loan, and (b) 101% of the unpaid principal balance of
such Eligible Mortgage Loan; PROVIDED, HOWEVER, if a Minimum Credit Trigger
Event or a Tangible Net Worth Trigger Event shall have occurred, the
Collateral Value with respect to each Eligible Mortgage Loan shall the
lesser of (a) the product of (i) the Market Value of such Eligible Mortgage
Loan, and (ii) the Applicable Collateral Percentage for such Eligible
Mortgage Loan, and (b) 100% of the unpaid principal balance of such
Eligible Mortgage Loan; PROVIDED, FURTHER, that the Collateral Value shall
be deemed to be zero with respect to each Mortgage Loan (1) in respect of
which there is a breach of representation and warranty set forth on
Schedule 1 (assuming each representation and warranty is made as of the
date the Collateral Value thereof is determined), (2) which ceases to be an
Eligible Mortgage Loan for any reason, (3) which remains pledged to the
Lender hereunder later than 120 days after the date on which it is first
included in the Collateral, (4) for which any Mortgage Loan Documents have
been released from the possession of the Custodian under the Custodial
Agreement for a period in excess of 15 days, (5) which is a Limited File
Loan for which the Custodian has failed to receive the original Mortgage
Note and Assignment of Mortgage (as defined in the Custodial Agreement) by
12:00 p.m., New York City time, by the third Business Day following the
applicable Funding Date or (6) which is a Limited File Loan for which the
Custodian has failed to receive the remaining Mortgage File items by 12:00
p.m., New York City time, by the fifth Business Day following the
applicable Funding Date.
(E) Section 1.1 is hereby amended to add the following defined term
after the term "Lien":
"LIMITED FILE LOAN" shall mean a Mortgage Loan with respect to a which
a Bailee Letter has been delivered to the Lender and the Custodian on the
Business Day prior to its related Funding Date, but as to which the
Custodian does not possess a complete Mortgage File on such date.
(F) Section 1.1 is hereby amended to add the following defined term
after the term "Delinquent":
"DISCRETIONARY MORTGAGE LOANS" shall mean either a Seasoned Mortgage
Loan or any other Mortgage Loan which does not specifically meet the
parameters of an Eligible Mortgage Loan as described herein.
(G) Section 1.1 is hereby amended to add the following defined term
after the term "Total Indebtedness":
"WAREHOUSE LENDER" shall mean any holder of a lien secured by a
Mortgage Loan to be pledged to the Lender hereunder which lien would have
priority with respect to the lien created hereby unless the same was
released pursuant to a Warehouse Lender's Release and Certification Letter.
3
(H) Section 1.1 is hereby amended to add the following defined term
after the term "S&P":
"SEASONED MORTGAGE LOAN" shall mean, as of any date of determination,
an Eligible Mortgage Loan which has been originated 121 days or more prior
to the related Funding Date but not more than 365 days prior to the related
Funding Date.
(I) The definition of "Unseasoned Mortgage Loan" is hereby amended
and restated as follows:
"UNSEASONED MORTGAGE LOAN" shall mean, as of any date of
determination, an Eligible Mortgage Loan (provided that notwithstanding the
definition of the term "Eligible Mortgage Loan," an Unseasoned Mortgage
Loan must have first lien status with respect to the related Mortgaged
Property) which has been originated 120 days or less prior to the related
Funding Date.
(J) Section 2.3(b) is hereby amended and restated as follows:
Upon the Borrower's request for a borrowing pursuant to Section
2.3(a), the Lender shall, subject to the limitations set forth in Section
2.1(a) hereof and upon satisfaction of all conditions precedent set forth
in Sections 5.1 and 5.2 hereof and provided that no Default shall have
occurred and be continuing, make a Loan to the Borrower on the requested
Funding Date, in the amount so requested; provided, however, that if the
Mortgage Loan Tape includes Discretionary Mortgage Loans that the Borrower
proposes to pledge to the Lender and to be included in the Borrowing Base
in connection with such Borrowing, the Lender's obligation to fund such
Discretionary Mortgage Loans shall be in its sole and absolute discretion.
The Borrower acknowledges that the Lender may retain an amount equal to
$100 per Defaulted Mortgage Loan to cover the costs of obtaining Brokers
Price Opinions.
(K) Section 2.3(c) is hereby amended and restated as follows:
Except with respect to Limited File Loans, the Borrower shall release
to the Custodian no later than 12:00 p.m., New York City time, two (2)
Business Days prior to the requested Funding Date, the Mortgage File
pertaining to each Eligible Mortgage Loan to be pledged to the Lender and
included in the Borrowing Base on such requested Funding Date, in
accordance with the terms and conditions of the Custodial Agreement.
(L) Section 2.3(e) is hereby amended and restated as follows:
(e) Subject to Article V hereof, such borrowing will then be made
available to the Borrower by the Lender transferring, via wire transfer, to
either (i) in the case of Mortgage Loans which are not Limited File Loans,
the following account of the Borrower: U.S. Bank, N.A., for the A/C of NCM
Collateral Account, ABA# ▇▇▇-▇▇▇-▇▇▇, Account # 1731-0097-1378, Attn:
▇▇▇▇▇▇ ▇▇▇▇▇,
4
or (ii) in the case of Limited File Loans, to the account specified in the
Warehouse Lender's Release Letter, in the aggregate amount of such
borrowing in funds immediately available to the Borrower or the Warehouse
Lender, as applicable.
(M) Section 5.2 is hereby amended and restated as follows:
Section 5.2 INITIAL AND SUBSEQUENT LOANS; INITIAL ADVANCE. The making
of each Loan to the Borrower (including the initial Loan) on any Business
Day is subject to the satisfaction of the following further conditions
precedent, both immediately prior to the making of such Loan and also after
giving effect thereto and to the intended use thereof:
(a) NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing;
(b) REPRESENTATIONS AND WARRANTIES. Both immediately prior to the
making of such Loan and also after giving effect thereto and to the
intended use thereof, the representations and warranties made by the
Borrower in Article VI and Schedules 1 and 2 hereof, and elsewhere in each
of the Loan Documents, shall be true, correct and complete on and as of the
date of the making of such Loan in all material respects (in the case of
the representations and warranties in Section 6.10 and Schedules 1 and 2,
solely with respect to Mortgage Loans included in the Borrowing Base) with
the same force and effect as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date). The Lender shall have received
an officer's certificate signed by a Responsible Officer of the Borrower
certifying as to the truth, accuracy and completeness of the above, which
certificate shall specifically include a statement that the Borrower is in
compliance with all governmental licenses and authorizations and is
qualified to do business and in good standing in all required
jurisdictions;
(c) BORROWING BASE. The aggregate outstanding principal amount of
the Loans shall not exceed the Borrowing Base;
(d) FEES AND EXPENSES. The Lender shall have received all fees and
expenses of counsel to the Lender as contemplated by Section 11.3(b), which
amount, at the Lender's option, may be netted from any Loan advanced under
this Agreement;
(e) NO MARKET EVENTS. None of the following shall have occurred and/or
be continuing:
(i) an event or events shall have occurred resulting in the
effective absence of a "repo market" or comparable "lending market"
for financing debt obligations secured by mortgage loans or securities
or an event or events shall have occurred resulting in the Lender not
being able to finance any Mortgage Loans through the "repo market" or
"lending
5
market" with traditional counterparties at rates which would have been
reasonable prior to the occurrence of such event or events;
(ii) an event or events shall have occurred resulting in the
effective absence of a "securities market" for securities backed by
mortgage loans or an event or events shall have occurred resulting in
the Lender not being able to sell securities backed by mortgage loans
at prices which would have been reasonable prior to such event or
events; or
(iii) there shall have occurred a material adverse change in the
financial condition of the Lender which affects (or can reasonably be
expected to affect) materially and adversely the ability of the Lender
to fund its obligations under this Loan Agreement.
(f) NO ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ DOWNGRADE. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ & Co.'s
corporate bond rating as calculated by S&P or ▇▇▇▇▇'▇ has not been lowered
or downgraded to a rating below A- as indicated by S&P or below A3 as
indicated by ▇▇▇▇▇'▇;
(g) FILINGS, REGISTRATIONS, RECORDINGS. Any additional documents
(including, without limitation, financing statements) required to be filed,
registered or recorded in order to create, in favor of the Lender, a
perfected, first-priority security interest in the Collateral, subject to
no Liens other than those created hereunder, shall have been properly
prepared and executed for filing (including the applicable county(ies) if
the Lender determines such filings are necessary in its sole discretion),
registration or recording in each office in each jurisdiction in which such
filings, registrations and recordations are required to perfect such
first-priority security interest; PROVIDED, that assignments of the
Mortgages securing or related to the Mortgage Loans shall not be required
to be recorded prior to the occurrence of an Event of Default;
(h) RELEASE AND CERTIFICATION LETTER. The Lender shall have received
from the Borrower either (i) a Warehouse Lender's Release and Certification
Letter substantially in the form of Exhibit E-2 hereto (or such other form
acceptable to the Lender) or (ii) a Seller's Release Letter substantially
in the form of Exhibit E-1 hereto (or such other form acceptable to the
Lender) covering each Mortgage Loan to be pledged to the Lender, and, in
the case of Limited File Loans, (iii) an executed Bailee Letter relating
thereto substantially in the form of Exhibit E-3 hereto;
(i) INITIAL ADVANCE. Anything contained in Section 2.1(a) to the
contrary notwithstanding, the initial advance amount for any Mortgage Loan
made hereunder shall only be made upon receipt by the Lender of a Warehouse
Lender's Release and Certification Letter and shall not exceed the lesser
of (i) 98% of the Market Value of such Mortgage Loan and (ii) 100% of the
then unpaid principal balance of such Mortgage Loan;
6
(j) INITIAL COLLATERAL VALUE. If the Mortgage Note and Assignment of
Mortgage (as such term is defined in the Custodial Agreement) for any
Limited File Loan is not delivered to the Custodian within three (3)
Business Days after its related Funding Date, as confirmed to the Lender by
a written certification delivered to it by the Custodian within such three
(3) Business Days period, the related Limited File Loan shall, commencing
on the fourth Business Day after its related Funding Date, have a
Collateral Value of zero until such time as the remaining Mortgage File
items with respect to such Mortgage Loan shall have been delivered to the
Custodian and identified in a Mortgage Loan Schedule and Exception Report;
(k) DISCRETIONARY MORTGAGE LOANS. At least three (3) Business Days
prior to a Funding Date, the Borrower shall have provided to the Lender a
certification as to the reason why a Discretionary Mortgage Loan has not
been previously disposed of by the Borrower and the Lender shall have
approved of the inclusion of such Discretionary Mortgage Loan in the
Mortgage Loan Schedule and Exception Report to be pledged hereunder on such
Funding Date; and
(l) BAILEE LETTER. A Bailee Letter, substantially in the form of
Exhibit E-3 hereto, between a Warehouse Lender and the Lender, with respect
to Limited File Loans, if any.
Each request for a borrowing by the Borrower hereunder shall
constitute a certification by the Borrower that all the conditions set
forth in this Article V (other than Sections 5.2(e) and (f)) have been
satisfied (both as of the date of such notice, request or confirmation and
as of the date of such borrowing).
(N) The following Section 5.3 shall be added after the end of Section
5.2:
Section 5.3. INITIAL AND SUBSEQUENT LOANS; SUBSEQUENT ADVANCES. The
making of a subsequent advance with respect to each Loan on any Business
Day is subject to the satisfaction of the following further conditions
precedent with respect to each Mortgage Loan:
(a) DUE DILIGENCE. Subject to the Lender's right to perform one or
more Due Diligence Reviews pursuant to Section 11.15 hereof, the Lender
shall have completed its due diligence review of the Mortgage Loan
Documents for each Loan and such other documents, records, agreements,
instruments, Mortgaged Properties or information relating to such Mortgage
Loans as the Lender in its sole discretion deems appropriate to review and
such review shall be satisfactory to the Lender in its sole discretion;
(b) COMPLETE MORTGAGE FILE. The Custodian shall have received the
complete Mortgage File with respect to any Mortgage Loan pledged hereunder
on the immediately preceding Funding Date;
(c) MORTGAGE LOAN SCHEDULE AND EXCEPTION REPORT. The Lender shall have
received from the Custodian a Mortgage Loan Schedule and Exception
7
Report with Exceptions as are acceptable to the Lender in its sole
discretion in respect of the Eligible Mortgage Loans pledged on the
immediately preceding Funding Date; and
(d) SUBSEQUENT ADVANCE. Upon receipt by the Lender of the Mortgage
Loan Schedule and Exception Report including each of the Limited File Loans
(showing no Exceptions thereto other than those approved by the Lender)
which were the subject of an initial advance on the immediately preceding
Funding Date, the Lender shall make a subsequent advance with respect to
such Eligible Mortgage Loans equal to the difference between the amount of
the initial advance and the amount which would have been funded on the
Funding Date in accordance with the valuation method as described in
Section 2.1(a) hereof.
(O) Paragraph (ss) of Schedule 1, Part I is hereby amended and
restated as follows:
(ss) ORIGINATION DATE. If a Mortgage Loan is an Unseasoned Mortgage
Loan, it has been originated within three months prior to the related
Funding Date, and if a Mortgage Loan is a Defaulted Mortgage Loan or a
Seasoned Mortgage Loan, it has been originated within twelve (12) months
prior to related the Funding Date.
(P) Part I of Schedule 1 is hereby amended to add the following
paragraph:
(zz) Each Mortgage Loan with respect to which the credit of the
Obligor thereunder was determined in accordance with the Fair ▇▇▇▇▇ & Co.
credit scoring method does not constitute a Sub-prime Mortgage Loan.
(Q) Paragraph (b) of Schedule 1, Part II is hereby amended and
restated as follows:
(b) CONCENTRATION LIMIT. As of a Funding Date:
1. the aggregate unpaid principal balance of the Second Lien Mortgage
Loans shall not exceed $40,000,000;
2. the aggregate unpaid principal balance of the 30+ Delinquent
Mortgage Loans shall not exceed $15,000,000;
3. the aggregate unpaid principal balance of the 60+ Delinquent
Mortgage Loans shall not exceed $10,000,000;
4. the aggregate unpaid principal balance of the Mortgage Loans that
are secured by Mortgaged Properties consisting of Qualified
Manufactured Housing shall not exceed $10,000,000;
8
5. the aggregate unpaid principal balance of the Mortgage Loans that
are secured by Mortgaged Properties consisting of condominiums shall
not exceed $25,000,000;
6. the aggregate unpaid principal balance of the Mortgage Loans that
are secured by Mortgaged Properties which are non-owner occupied shall
not exceed $25,000,000;
7. the aggregate unpaid Principal Balance of the Sub-prime Mortgage
Loans shall not exceed 18% of the outstanding principal balance of the
Loan.
8. the aggregate unpaid principal balance of the Defaulted Mortgage
Loans shall not exceed $10,000,000.
9. the aggregate unpaid principal balance of the Discretionary
Mortgage Loans shall not exceed 10% of the aggregate outstanding
principal balance of the Loans.
SECTION 3. SURVIVAL. Except as expressly amended hereby, the Loan and
Security Agreement shall continue in full force and effect in accordance with
the provisions thereof and the Loan and Security Agreement is in all respects
hereby ratified, confirmed and preserved. This Amendment and all its provisions
shall be deemed a part of the Loan and Security Agreement in the manner and to
the extent herein provided.
SECTION 4. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
SECTION 5. GOVERNING LAW. This Amendment shall be governed by New York law
without reference to its choice of law doctrine.
SECTION 6. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Amendment by signing
any such counterpart.
9
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed as of this 2nd day of April 2001.
NC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ MORTGAGE
CAPITAL INC.
By: /s/ [ILLEGIBLE]
----------------------------------
Name:
Title:
10