EXHIBIT 10.108(b)
AMENDMENT NO. 2
TO
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
THIS AMENDMENT NO. 2, made as of November 28, 2005 ("Amendment No. 2"),
by and among BEAR XXXXXXX MORTGAGE CAPITAL CORPORATION (the "Buyer") and NC
CAPITAL CORPORATION ("NC Capital"), NC RESIDUAL II CORPORATION ("NC Residual"),
HOME123 CORPORATION ("Home123") and NEW CENTURY CREDIT CORPORATION ("New
Century" and, together with NC Capital, NC Residual and Home123, each a "Seller"
and, collectively, the "Sellers").
R E C I T A L S
WHEREAS, Buyer and Sellers have previously entered into an Amended and
Restated Master Repurchase Agreement, dated as of August 18, 2005 (the
"Repurchase Agreement"), as amended by Amendment No. 1, dated as of October 28,
2005 ("Amendment No. 1" and, together with the Repurchase Agreement, the
"Agreement"); and
WHEREAS, Buyer, NC Capital, NC Residual, New Century and Home123 desire
that Home123 be added as a Seller under the Agreement to be jointly and
severally liable with NC Capital, NC Residual and New Century for all
obligations of any Seller; and
WHEREAS, Buyer and Sellers desire to make certain further modifications
to the Agreement as described herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions.
(a) Capitalized terms used herein and not otherwise defined shall
have the meanings assigned in the Agreement. Capitalized terms
used in the Agreement whose definitions are modified in this
Amendment No. 2 shall, for all purposes of the Agreement, be
deemed to have such modified definitions.
Section 2. Initiation; Request/Confirmation; Termination; Transactions
Optional. Section 3(h) of the Agreement is hereby deleted in its entirety and is
replaced by the following:
"(h) Any provision hereof to the contrary notwithstanding, Transactions
entered into hereunder shall be at the sole discretion of Buyer. Buyer
is not required to enter into any Transaction, and Buyer may, in its
sole discretion, reject for inclusion in any Transaction any Eligible
Loan offered for sale hereunder by Seller."
Section 3. Representations, Warranties and Covenants.
(a) Section 10(e), subparagraph (viii) of the Agreement is hereby
modified by deleting the term ten (10) days and replacing it
with fourteen (14) days.
(b) Section 10(e), subparagraph (xviii) of the Agreement is hereby
modified by deleting the term one hundred million dollars
($100,000,000) and replacing it with four hundred million
dollars ($400,000,000).
Section 4. Agreement and Joinder. Home123 hereby agrees to all of the
provisions of the Agreement as amended hereby and, effective on the date hereof,
becomes a party to the Agreement as amended hereby, as a Seller, with the same
effect as if Home123 were an original signatory to the Agreement (as
subsequently amended hereby).
Section 5. Non-assignability; Termination. Section 22(b) of the
Agreement is hereby deleted in its entirety and is replaced by the following:
"(b) This Agreement and all Transactions outstanding hereunder shall
terminate upon thirty (30) days prior written notice by Buyer to Seller;
provided, however, that, if the Agreement has not been terminated earlier
pursuant to this Section 22(b), it will terminate automatically without any
requirement for notice on November 28, 2006; and provided further, however, that
this Agreement and any Transaction outstanding hereunder may be extended by
mutual agreement of Buyer and Seller; and provided further, however, that no
such party shall be obligated to agree to such an extension.
Section 6. References to Seller. All references to Seller in the
Agreement, as amended hereby, are hereby amended to mean the Sellers, jointly
and severally, unless the context clearly requires otherwise.
Section 7. Expenses. Sellers shall pay on demand all fees and expenses
(including, without limitation, the fees and expenses for legal services of any
kind whatsoever) incurred by Buyer in connection with this Amendment No. 2. The
obligation of Sellers to pay such fees and expenses incurred prior to, or in
connection with, the termination of the Agreement, as amended by this Amendment
No. 2, shall survive such termination.
Section 8. Governing Law. This Amendment No. 2 shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and entirely performed therein.
Section 9. Interpretation. The provisions of the Agreement shall be read
so as to give effect to the provisions of this Amendment No. 2.
Section 10. Counterparts. This Amendment No. 2 may be executed in any
number of counterparts, each of which counterparts shall be deemed to be an
original, and such counterparts shall constitute but one and the same
instrument.
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Section 11. Ratification and Confirmation. As amended by this Amendment
No. 2, the Agreement is hereby in all respects ratified and confirmed, and the
Agreement, as amended by this Amendment No. 2, shall be read, taken and
construed as one and the same instrument.
IN WITNESS WHEREOF, Buyer and Sellers have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of
the date first above written.
BEAR XXXXXXX MORTGAGE CAPITAL
CORPORATION, as Buyer
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Title: Senior Vice President
--------------------------------
Date: 11-28-05
---------------------------------
NC CAPITAL CORPORATION, as Seller
By: /s/ Xxxxx Xxxxx
-----------------------------------
Title: President
--------------------------------
Date: 11-28-05
---------------------------------
NC RESIDUAL II CORPORATION,
as Seller
By: /s/ Xxxxx Xxxxx
-----------------------------------
Title: Executive Vice President
--------------------------------
Date: 11-28-05
---------------------------------
NEW CENTURY CREDIT CORPORATION,
as Seller
By: /s/ Xxxxx Xxxxx
-----------------------------------
Title: Executive Vice President
--------------------------------
Date: 11-28-05
---------------------------------
HOME123 CORPORATION, as Seller
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Title: CFO and Treasurer
--------------------------------
Date: 11-28-05
---------------------------------
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