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Exhibit 10.6
AMENDMENT NUMBER 5
TO MASTER REPURCHASE AGREEMENT
This Amendment Number 5 to the Master Repurchase Agreement (this
"Amendment"), dated as of September 27, 2000, is entered into among Metropolitan
Mortgage & Securities Co., Inc., Metwest Mortgage Services, Inc. (each, and
jointly and severally, "Seller") and Banc of America Mortgage Capital
Corporation, successor by merger to NationsBanc Mortgage Capital Corporation
("Buyer").
R E C I T A L S
A. Seller and Buyer entered into that certain Master Repurchase
Agreement dated as of March 24, 1998 and amended such Master Repurchase
Agreement as of March 24, 1998, October 8, 1998, March 8, 1999 and February 11,
2000 (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:
1 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 in 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 THE REPURCHASE AGREEMENT.
1. Section 2 of the Repurchase Agreement is hereby amended by
deleting the definition of Maximum Aggregate Purchase Price and
replacing it with the following:
"Maximum Aggregate Purchase Price" means FIFTY MILLION
DOLLARS ($50,000,000).
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2. Section 3(b) of the Repurchase Agreement is hereby deleted in its
entirety and replaced by the following:
Provided that the applicable conditions in Paragraphs 9(a) and
9(b) have been satisfied, (i) each Purchased Security repurchased
by Seller on the tenth day of a month (or the following Business
Day if such day is not a Business Day) following the initial
Purchase Date (each, a "Repurchase Date") shall automatically
become subject to a new Transaction unless Buyer is notified by
Seller at least two (2) Business Days prior to any Repurchase
Date, and (ii) the Buyer shall from time to time, but in no event
more frequently than once per month (unless otherwise agreed),
enter into new Transactions with respect to additional Loans and
in each case the Repurchase Date therefor shall be the tenth day
of the month (or the following Business Day if such day is not a
Business Day) following such Purchase Date, provided that if the
Repurchase Date so determined is later than November 2, 2000 (the
"Termination Date"), the Repurchase Date for such transaction
shall automatically reset to the Termination Date, and the
provisions of this sentence as it might relate to a new
Transaction shall expire on such date. For each new Transaction,
unless otherwise agreed, (i) the Purchase Price shall be equal to
90% (the "Purchase Price Percentage") of the related Market
Value, (ii) the percentage used in determining the Buyer's Margin
Amount shall be the percentage equivalent of the fraction
1/Purchase Price Percentage, (iii) the Pricing Rate shall be
equal to Adjusted LIBOR plus two hundred basis points (2.00%) and
(iv) the accrued and unpaid Price Differential shall be settled
in cash on each related Repurchase Date.
3. Section 23 of the Repurchase Agreement is hereby deleted in its
entirety and replaced by the following:
23. [RESERVED].
4. The following Section 39 is hereby added to the Repurchase
Agreement:
39. RECOURSE OBLIGATION.
Notwithstanding any provision of this Agreement to the
contrary, the liabilities and obligations of Seller under this
Agreement are recourse obligations to Seller, and Buyer shall be
able to enforce the liability and obligation of Seller to perform
and observe such obligations by any action or proceeding against
Seller.
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 ratified and confirmed in every respect and
shall remain unmodified and unchanged and shall continue in full force and
effect.
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4 DELAY OF REMEDIES. Seller has informed Buyer that the financial
requirements set forth in subsection 18(s) of the Repurchase Agreement are not
met, thereby constituting an Event of Default under Section 18 (the "Default").
Buyer hereby acknowledges such shortfall and agrees that, without prejudicing
any rights or remedies that Buyer may have under the Repurchase Agreement
(including any rights with respect to any other Event of Default under the
Repurchase Agreement), Buyer will not exercise any of its rights under the
Repurchase Agreement with respect to the Default prior to October 31, 2000;
provided however, that the foregoing provision shall not be deemed to waive any
rights or remedies available to Buyer under the Repurchase Agreement or
applicable law, any and all such rights being expressly reserved.
5. 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.
23. 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 5 to Repurchase Agreement
as of the date first above written.
BANC OF AMERICA MORTGAGE CAPITAL
CORPORATION, as Buyer
By: __________________________________
Name: __________________________________
Title:__________________________________
METROPOLITAN MORTGAGE & SECURITIES CO.,
INC., as Seller (jointly and severally)
By: __________________________________
Name: __________________________________
Title:__________________________________
METWEST MORTGAGE SERVICES, INC., as
Seller (jointly and severally)
By: __________________________________
Name: __________________________________
Title:__________________________________
