Exhibit 10.1(a)
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
GOVERNING PURCHASES AND SALES OF MORTGAGE LOANS
This First Amendment, dated as of
December 28, 2005 (this “ Amendment ”), to
the Second Amended and Restated Master Repurchase Agreement
Governing Purchases and Sales of Mortgage Loans, dated as of
December 29, 2004 (the “ Repurchase Agreement
”), is made by and among LEHMAN BROTHERS BANK, FSB (“
Buyer ”), FIELDSTONE INVESTMENT CORPORATION (“
FIC ”) and FIELDSTONE MORTGAGE COMPANY (“
FMC ”) (FIC and FMC shall be individually and
collectively referred to as “ Seller ”).
Buyer, FMC and FIC may be collectively referred to herein as the
“ Parties ”.
RECITALS
WHEREAS, pursuant to the Repurchase
Agreement, Buyer has agreed, subject to the terms and conditions
set forth in the Repurchase Agreement, to purchase certain Mortgage
Loans owned by Seller, including, without limitation, all rights of
Seller to service and administer such Mortgage Loans;
and
WHEREAS, the Parties desire to amend
the Repurchase Agreement as set forth herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereto agree as
follows:
Section 1.
Definitions . Capitalized terms used but not otherwise
defined herein have the meanings given them in the Repurchase
Agreement.
Section 2.
Amendments to Repurchase Agreement . Subject to
Section 4 hereof, the Repurchase Agreement shall be amended as
follows:
(a)
References in the Repurchase Agreement to “this
Agreement” or words of similar import (including indirect
references to the Repurchase Agreement) shall, without limitation,
be deemed to be references to the Repurchase Agreement as amended
by this Amendment.
(b) The term of
the Repurchase Agreement shall be renewed for a period of 364 days
from the date of this Amendment or such earlier date on which all
Purchased Mortgage Loans are required to be immediately repurchased
pursuant to Section 14(a) of the Repurchase Agreement
(unless such date is extended upon mutual agreement of Buyer and
Seller). Thus, the definition of “Final Repurchase
Date” shall be amended in accordance with such renewal
term.
(c) The
definitions of “Estimated Recovery Value”, “Fee
Letter”, “Performing Mortgage Loan” and
“Workout Mortgage Loan” contained in Section 2 are
hereby deleted in their entirety.
(d) The
definitions of “Collateral Deficit”, “Collateral
Maintenance Percentage”, “Market Value”,
“Permitted Guarantee Obligations” and “Purchase
Price” contained in Section 2 are hereby deleted in
their entirety and replaced with the following:
“ Collateral Deficit
” means a Market Value Collateral Deficit or a Securitization
Value Collateral Deficit.
“ Collateral Maintenance
Percentage ” means the amount set forth in the related
Confirmation with respect to each Mortgage Loan which, (1) in
determining whether a Market Value Collateral Deficit exists
pursuant to the second sentence of Section 4(a) hereof
shall, for each type of Mortgage Loan set forth in the first column
below, equal the applicable percentage set forth in the second
column below and (2) in determining whether a Securitization
Value Collateral Deficit exists pursuant to the third sentence of
Section 4(a) hereof shall, for each type of Mortgage Loan
set forth in the first column below, equal the applicable
percentage set forth in the third column below:
|
Mortgage Loan Type
|
|
% for Market
Value
Collateral
Deficit
|
|
% for
Securitization
Value Collateral
Deficit
|
|
|
(a)
|
first lien High Purchase Price Mortgage Loans
that are Three Month Aged Mortgage Loans
|
|
103.1
|
%
|
103.1
|
%
|
|
(b)
|
first lien High Purchase Price Mortgage Loans
that are Five Month Aged Mortgage Loans
|
|
104.2
|
%
|
104.2
|
%
|
|
(c)
|
second lien High Purchase Price Mortgage
Loans
|
|
106.4
|
%
|
106.4
|
%
|
|
(d)
|
first lien Medium Purchase Price Mortgage Loans
that are Three Month Aged Mortgage Loans
|
|
105.3
|
%
|
105.3
|
%
|
|
(e)
|
first lien Medium Purchase Price Mortgage Loans
that are Five Month Aged Mortgage Loans
|
|
106.4
|
%
|
106.4
|
%
|
|
(f)
|
second lien Medium Purchase Price Mortgage
Loans
|
|
108.7
|
%
|
108.7
|
%
|
|
(g)
|
first lien Low Purchase Price Mortgage Loans
that are Three Month Aged Mortgage Loans
|
|
107.5
|
%
|
107.5
|
%
|
|
(h)
|
first lien Low Purchase Price Mortgage Loans
that are Five Month Aged Mortgage Loans
|
|
108.7
|
%
|
108.7
|
%
|
|
(i)
|
second lien Low Purchase Price Mortgage
Loans
|
|
111.1
|
%
|
111.1
|
%
|
“ Market Value ”
means as of any date with respect to any Mortgage Loan, the price
at which such Mortgage Loan could readily be sold as determined by
Buyer in its sole reasonable discretion; provided , that
Market Value may be deemed zero by Buyer for:
2
(i)
any Mortgage Loan that has been the subject of a Transaction for
more than one-hundred fifty (150) days,
(ii)
any Mortgage Loan which, when added with all other Purchased
Mortgage Loans subject to then outstanding Transactions, would
cause the aggregate Repurchase Price for all Purchased Mortgage
Loans that are subject to then outstanding transactions to exceed
the Total Facility Amount,
(iii)
any Five Month Aged Mortgage Loan which, when added with all other
Five Month Aged Mortgage Loans subject to then outstanding
Transactions, would cause the aggregate Repurchase Price for all
Five Month Aged Mortgage Loans that are subject to then outstanding
Transactions to exceed 50% of the aggregate Repurchase Price for
all Purchased Mortgage Loans that are subject to then outstanding
Transactions,
(iv)
any Mortgage Loan that is Delinquent for thirty (30) or more days
but not more than fifty-nine (59) days which, when added with all
other Purchased Mortgage Loans subject to then outstanding
Transactions that are Delinquent for such period, would cause the
aggregate Repurchase Price of such Purchased Mortgage Loans subject
to then outstanding Transactions that are Delinquent for such
period to exceed 3.0% of the Total Facility Amount,
(v)
any Mortgage Loan that is secured by a second mortgage lien on the
Mortgaged Property which, (a) when added with all other
Purchased Mortgage Loans secured by second mortgage liens on the
Mortgaged Properties subject to then outstanding Transactions,
would cause the aggregate Repurchase Price for all Purchased
Mortgage Loans secured by second mortgage liens on the Mortgaged
Properties that are subject to then outstanding Transactions to
exceed $30,000,000 or (b) when such Mortgage Loan’s FICO
score is averaged with all other Purchased Mortgage Loans secured
by second mortgage liens on the Mortgaged Properties subject to
then outstanding transactions, would cause the weighted average
FICO score for all Purchased Mortgage Loans secured by second
mortgage liens on the Mortgaged Properties that are subject to then
outstanding Transactions to be less than 640,
(vi)
any Mortgage Loan that is a Wet Ink Mortgage Loan for more than
seven (7) Business Days,
(vii)
any Wet Ink Mortgage Loan which, when added with all other Wet Ink
Mortgage Loans subject to then outstanding Transactions, would
cause the aggregate Repurchase Price of all Wet Ink Mortgage Loans
subject to then outstanding Transactions to exceed (a) 30% of
the Total Facility Amount during the first and last week of any
calendar month or (b) 20% of the Total Facility Amount at all
other times,
3
(viii)
any Balloon Mortgage Loans which, when added with all other Balloon
Mortgage Loans subject to then outstanding Transactions, would
cause the aggregate Repurchase Price of all Balloon Mortgage Loans
subject to then outstanding Transactions to exceed the greater of
(a) 10% of the aggregate Repurchase Price for all Purchased
Mortgage Loans that are subject to then outstanding Transactions
and (b) $25,000,000;
(ix)
any Mortgage Loan for which greater than one-hundred eighty (180)
days have elapsed since the date of origination of such Mortgage
Loan,
(x)
any Mortgage Loan with respect to that there is a breach of a
representation, warranty or covenant made by either Seller in this
Agreement,
(xi)
any Mortgage Loan which, when added with all other Mortgage Loans
that have the same Mortgagor as such Mortgage Loan, would cause the
amount of Mortgage Loans that have the same Mortgagor to be greater
than three,
(xii)
any Mortgage Loan that is in foreclosure or subject to a bankruptcy
proceeding of the related Mortgagor or with respect to which the
first and second monthly payments were not made on their respective
due dates or within the grace period in accordance with the terms
of the Mortgage Note; provided, that, if such payments are brought
current, Buyer shall assign a reasonable Market Value to such
Mortgage Loan; and
(xiii)
any Mortgage Loan for which the related Mortgagor is thirty (30) or
more days delinquent with respect to the Mortgage Loan’s
first monthly payment due; provided, that, if such payments are
brought current, Buyer shall assign a reasonable Market Value to
such Mortgage Loan.
“ Permitted Guarantee
Obligations ” means (a) mortgage, repurchase and
warehouse facilities whereby Sellers are jointly and severally
liable thereunder; (b) mortgage repurchase, warehouse
facilities or other ordinary course transactions whereby FIC
guarantees the obligations of its Subsidiaries thereunder; and
(c) the obligations of either Seller pursuant to surety bonds
required in connection with state licensing and branch
offices.
“ Purchase Price
” means on each Purchase Date, the price at which each
Purchased Mortgage Loan is transferred by the applicable Seller to
Buyer or its designee (including Custodian) that shall be equal to
for each type of Mortgage Loan set forth in the first column below,
the lowest of: (i) the product of the Market Value of such
Mortgage Loan and the applicable percentage set forth below under
the column labeled “A”, (ii) the product of the
Securitization Value of such Mortgage Loan and the applicable
percentage set forth under the column labeled “B” and
(iii) the product of the outstanding principal balance of such
Mortgage Loan and the applicable percentage set forth below under
the column labeled “C”:
4
|
|
|
A
|
|
B
|
|
C
|
|
|
Mortgage Loan Type
|
|
% of
Market
Value
|
|
% of
Securitization
Value
|
|
% of
Outstanding
Principal
Balance
|
|
|
(a)
|
first lien High Purchase Price Mortgage Loans
that are Three Month Aged Mortgage Loans
|
|
97.0
|
%
|
97.0
|
%
|
98.5
|
%
|
|
(b)
|
first lien High Purchase Price Mortgage Loans
that are Five Month Aged Mortgage Loans
|
|
96.0
|
%
|
96.0
|
%
|
97.5
|
%
|
|
(c)
|
second lien High Purchase Price Mortgage
Loans
|
|
94.0
|
%
|
94.0
|
%
|
95.5
|
%
|
|
(d)
|
first lien Medium Purchase Price Mortgage Loans
that are Three Month Aged Mortgage Loans
|
|
95.0
|
%
|
95.0
|
%
|
96.5
|
%
|
|
(e)
|
first lien Medium Purchase Price Mortgage Loans
that are Five Month Aged Mortgage Loans
|
|
94.0
|
%
|
94.0
|
%
|
95.5
|
%
|
|
(f)
|
second lien Medium Purchase Price Mortgage
Loans
|
|
92.0
|
%
|
92.0
|
%
|
93.5
|
%
|
|
(g)
|
first lien Low Purchase Price Mortgage Loans
that are Three Month Aged Mortgage Loans
|
|
93.0
|
%
|
93.0
|
%
|
94.5
|
%
|
|
(h)
|
first lien Low Purchase Price Mortgage Loans
that are Five Month Aged Mortgage Loans
|
|
92.0
|
%
|
92.0
|
%
|
93.5
|
%
|
|
(i)
|
second lien Low Purchase Price Mortgage
Loans
|
|
90.0
|
%
|
90.0
|
%
|
91.5
|
%
|
(e) The
following new definitions are hereby added to Section 2 in
their proper alphabetic places:
“ High Purchase Price
Mortgage Loan ” means a Purchased Mortgage Loan
that
