Exhibit 10.4
AMENDMENT NUMBER 2
TO REPURCHASE AGREEMENT
This Amendment Number 2 to the Repurchase Agreement (this "Amendment"),
dated as of March 8, 1999, is entered into between Metropolitan Mortgage &
Securities Co., Inc. ("Metropolitan" or "Seller") and NationsBanc Mortgage
Capital Corporation ("NationsBanc" or "Buyer").
R E C I T A L S
A. Metropolitan and NarionsBanc entered into that certain Master
Repurchase Agreement dated as of March 24, 1998 and amended such Master
Repurchase Agreement as of October 8, 1998 (as amended and as may be further
supplemented, modified and amended from time to time, the "Repurchase
Agreement").
B. Buyer and Seller each desire to modify the terms of the Repurchase
Agreement as set forth in this Amendment.
C. Buyer and Seller each have agreed to execute and deliver this
Amendment on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein and in the Repurchase Agreement, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree to the following:
l. MISCELLANEOUS. For all purposes of this Amendment, except as
otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms used herein shall have
the meanings attributed to them by the Repurchase Agreement, (b) the capitalized
terms expressly defined in this Amendment have the meanings assigned to them in
this Amendment and include (i) all genders and (ii) the plural as well as the
singular, (c) all references to words such as "herein", "hereof" and the like
shall refer to this Amendment as a whole and not to any particular article or
section within this Amendment, (d) the term "include" and all variations thereon
shall mean "include without limitation" and (e) the term "or" shall include
"and/or".
2. MODIFICATIONS AND AMENDMENTS TO REPURCHASE AGREEMENT.
A. Section 3 (b) is hereby amended so that the last clause of the first
sentence reads as follows: ", provided that if the Repurchase Date so
determined is later than the two-year anniversary of the initial
Purchase Date (the "Termination Date"), the Repurchase Date for such
transaction shall automatically reset to such anniversary date, and the
provisions of this sentence as it might relate to a new Transaction
shall expire on such date."
B. Section 18(s) is hereby replaced in its entirety by the following:
"Metropolitan Mortgage & Securities Co., Inc. shall fail to maintain
(A) GAAP net worth of at least $50 million, (B) a ratio of indebtedness
to GAAP net worth of 24:l or less, or (C) at least
$50,000,000 of liquid assets (cash equivalents and marker value of U.S.
Treasury securities)."
C. Section 29(b) is hereby amended so that the last sentence is amended
to read in its entirety as follows: "The Break-up Fee is earned and
payable on the earlier of (i) a sale or Securitization of the Purchased
Securities by Seller (other than a Securitization sole managed by
Buyer's affiliates) and (ii) the Termination Date."
3. NO OTHER CHANGES. Except as expressly modified or amended in this
Amendment, all of the terms, covenants, provisions, agreements and conditions of
the Repurchase Agreement are hereby rarified and confirmed in every respect and
shall remain unmodified and unchanged and shall continue in full force and
effect.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument.
5. GOVERNING LAW; WAIVER OF JURY TRIAL. This Amendment shall be
governed by, and construed in accordance with, the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws without regard to conflicts of laws
principles. The parties hereto each hereby waive the right of trial by jury in
any litigation arising hereunder.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute this Amendment Number 2 to Repurchase Agreement
as of the date first above written.
NATIONSBANC MORTGAGE CAPITAL
CORPORATION, as Buyer
By: /s/ Xxxx X. XxXxxxxx
-------------------------
Name: Xxxx X. XxXxxxxx
Title: Senior Vice President
METROPOLITAN MORTGAGE & SECURITIES
CO, INC.,
as Seller
By: /s/ C. Xxxx Xxxxxxxx, Xx.
-------------------------
Name: C. Xxxx Xxxxxxxx, Xx.
Title: President
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