EXHIBIT 10.97
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NEW CENTURY MORTGAGE CORPORATION
NC CAPITAL CORPORATION
Seller
AND
CDC MORTGAGE CAPITAL INC.
Buyer
AMENDMENT NO. 3
Dated as of February 22, 2002
TO
MASTER REPURCHASE AGREEMENT
Dated as of July 19, 2001
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AMENDMENT NO. 3 (this "Amendment"), dated as of February 22, 2002, by
and among New Century Mortgage Corporation ("NCMC"), NC Capital Corporation
("NCCC" and, together with NCMC, the "Seller"), and CDC Mortgage Capital Inc.
("Buyer"), to the Master Repurchase Agreement dated as of July 19, 2001 by and
among Seller and Buyer (the "Agreement").
All capitalized terms not otherwise defined herein are defined in the
Agreement.
RECITALS
WHEREAS, Seller and Buyer have entered into Agreement;
WHEREAS the Seller has requested the Buyer to agree to amend certain
provisions of the Agreement as set forth in this Amendment. The Buyer hereto is
willing to agree to such amendments, but only on the terms and subject to the
conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Seller and the Buyer hereby agree as follows:
NOW, THEREFORE, the parties hereby agree that for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Buyers and Seller agree as follows:
SECTION 1. Amendment. Section 1 of the Agreement is hereby amended by
amending and restating the definition of "Change of Control":
" "Change of Control" shall mean the occurrence, after the
Effective Date, of any of the following circumstances: (a) Guarantor
not owning, directly or indirectly, all of the issued and outstanding
capital stock of NCMC; or (b) any Person, or two or more Persons acting
in concert, other than the Management Shareholders, acquiring
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of Guarantor
(or other securities convertible into such securities) representing 35%
or more of the combined voting power of all securities of Guarantor
entitled to vote in the election of directors; (c) any Person, or two
or more Persons acting in concert, other than the Management
Shareholders, acquiring by contract or otherwise, or entering into a
contract or arrangement which upon consummation will result in its or
their acquisition of and, control over securities of Guarantor (or
other securities convertible into such securities) representing 35% or
more of the combined voting power of all securities of Guarantor
entitled to vote in the election of directors; and (d) Xxxxxx Xxxx
ceasing to be Chairman and Chief Executive Officer of Guarantor."
SECTION 2. Effectiveness of the Amendment. This Amendment shall have
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been effective as of November 20, 2001.
SECTION 3. Ratification of Agreement. As amended by this Amendment, the
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Agreement is in all respects ratified and confirmed and the Agreement as so
modified by this Amendment shall be read, taken, and construed as one and the
same instrument.
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SECTION 4. Representations and Warranties. To induce the Seller to enter
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into this Amendment, the Seller hereby represents and warrants to the Seller
that, after giving effect to the amendments provided for herein, the
representations and warranties contained in the Agreement and the other
Repurchase Documents will be true and correct in all material respects as if
made on and as of the date hereof and that no Default or Event of Default will
have occurred and be continuing.
SECTION 5. No Other Amendments. Except as expressly amended hereby, the
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Agreement and the other Repurchase Documents shall remain in full force and
effect in accordance with their respective terms, without any waiver, amendment
or modification of any provision thereof.
SECTION 6. Expenses. The Seller agrees to pay and reimburse the Buyer for
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all of the out-of-pocket costs and expenses incurred by Seller in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the fees and disbursements of its attorneys.
SECTION 7. GOVERNING LAW.
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THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
SECTION 8. Counterparts.
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This Amendment may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all of such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective officers as of the day and year first above
written.
CDC MORTGAGECAPITAL INC., as NEW CENTURY MORTGAGE
Buyer under the Agreement CORPORATION, as Seller under the
Agreement
By: /s/ illegible By: /s/ Xxxxxxx Xxxxxxxx
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Name: Name:
Title: Title: President
By: /s/ Xxxxxxx Xxxxxxx
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Name:
Title: Director NC CAPITAL CORPORATION,
as Seller under the Agreement
By: /s/ Xxxxxxx Xxxxxxxx
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Name:
Title: President
The undersigned guarantor hereby consents and agrees to the foregoing Amendment:
NEW CENTURY FINANCIAL
CORPORATION
By: /s/ ILLEGIBLE
__________________________
Name:
Title:
