**Exhibit 10.2**

 

**AMENDMENTNO. 5**

 

AMENDMENT NO. 5, dated asof August 6, 2004 (this “Amendment”), to the Second Amended and RestatedMaster Loan and Security Agreement, dated as of January 30, 2004 (asamended, supplemented or otherwise modified prior to the date hereof, the “ExistingLoan Agreement”; as amended hereby and as further amended, restated,supplemented or otherwise modified and in effect from time to time, the “LoanAgreement”), by and among NC CAPITAL CORPORATION (“NC Capital”),NEW CENTURY MORTGAGE CORPORATION (“New Century”), NC RESIDUAL II CORPORATION (“NCRII”,together with NC Capital and New Century, collectively, the “Borrowers”,each, a “Borrower”), MORGAN STANLEY BANK (“MSB”) and MORGANSTANLEY MORTGAGE CAPITAL INC. (“MSMCI”) (MSMCI, in its capacity as alender, together with MSB, collectively, the “Lenders”, and in itscapacity as agent for the Lenders, together with any successors and assigns,the “Agent”).  Capitalized termsused but not otherwise defined herein shall have the meanings given to them inthe Existing Loan Agreement.

 

**RECITALS**

 

The Borrowers, theLenders and the Agent are parties to the Existing Loan Agreement.

 

The Borrowers, theLenders and the Agent have agreed, subject to the terms and conditions hereof,that the definition of “Collateral Value” shall be amended as provided below.

 

Accordingly, theBorrowers, the Lenders and the Agent hereby agree, in consideration of themutual premises and mutual obligations set forth herein, that the Existing LoanAgreement is hereby amended as follows:

 

# **SECTION1.  **Amendment.  The definition of “Collateral Value” set forth in Section 1.01 ofthe Existing Loan Agreement is hereby amended by (i) replacing the period setforth at the end of clause (b)(vi) with a semicolon and (ii) inserting inproper numerical order the following new clause (b)(vii):

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“(vii)       which has been pledged to the Agent underthe Loan Agreement in excess of 120 calendar days.”

 

# **SECTION2.  **Conditions Precedent.  This Amendment shall become effective on thefirst date (the “Amendment Effective Date”) that all of the followingconditions precedent shall have been satisfied:

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2.1           Delivered Documents.  On the Amendment Effective Date, the Agentshall have received the following documents, each of which shall be satisfactoryto the Agent in form and substance:

 

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## (a)           Amendment.  This Amendment, executed and delivered by aduly authorized officer of each of the Borrowers, the Lenders and the Agent;and

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## (b)           Other Documents.  Such other documents as the Agent or counselto the Agent may reasonably request.

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2.2           No Default.  On the Amendment Effective Date, (i) eachBorrower shall be in compliance with all of the terms and provisions set forthin the Existing Loan Agreement and the other Loan Documents on its part to beobserved or performed, (ii) the representations and warranties made andrestated by the Borrowers pursuant to Section 3 of this Amendment shall be trueand complete on and as of such date with the same force and effect as if madeon and as of such date and (iii) no Default shall have occurred and becontinuing on such date.

 

# **SECTION3.  **Representations and Warranties. Each ofthe Borrowers hereby represents and warrants to the Agent and the Lenders, asof the date hereof and as of the Amendment Effective Date, that it is incompliance with all of the terms and provisions set forth in the Loan Documentson its part to be observed or performed, and that no Default has occurred or iscontinuing, and hereby confirms and reaffirms the representations andwarranties contained in Article VI of the Loan Agreement.

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# **SECTION4.  **Limited Effect.  Except as expressly amended and modified bythis Amendment, the Existing Loan Agreement and each of the other LoanDocuments shall continue to be, and shall remain, in full force and effect inaccordance with its respective terms; provided, however, that upon theAmendment Effective Date each reference therein and herein to the “LoanDocuments” shall be deemed to include, in any event, this Amendment and eachreference to the Loan Agreement in any of the Loan Documents shall be deemed tobe a reference to the Loan Agreement as amended hereby.

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# **SECTION5.  **Counterparts.  This Amendment may be executed by each of the parties hereto onany number of separate counterparts, each of which shall be an original and allof which taken together shall constitute one and the same instrument.  Delivery of an executed counterpart of asignature page to this Amendment in Portable Document Format (PDF) or by facsimiletransmission shall be effective as delivery of a manually executed originalcounterpart thereof.

 

# **SECTION6.  GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED INACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.**

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[SIGNATURES FOLLOW]

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Amendment to be duly executed and delivered as of the day and year firstabove written.

 
|   | BORROWERS                             |
|--------|---------------------------------------|
|   |                                  |
|   |                                  |
|   | **NC CAPITAL CORPORATION**            |
|   |                                  |
|   |                                  |
|   | By:                                   | /s/ PATRICK  FLANAGAN |   |
|   |                                  | Name: Patrick Flanagan |
|   |                                  | Title: Chief Executive  Officer |
|   |                                  |
|   |                                  |
|   | **NEW CENTURY MORTGAGE  CORPORATION** |
|   |                                  |
|   |                                  |
|   | By:                                   | /s/ PATRICK  FLANAGAN |   |
|   |                                  | Name: Patrick Flanagan |
|   |                                  | Title: President |
|   |                                  |   |
|   |                                  |
|   | **NC  RESIDUAL II CORPORATION**       |
|   |                                  |
|   |                                  |
|   | By:                                   | /s/ PATRICK  FLANAGAN |   |
|   |                                  | Name: Patrick Flanagan |
|   |                                  | Title: President |

 

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|   | **MORGAN STANLEY MORTGAGE  CAPITAL INC.**, as Agent and as a Lender |
|--------|---------------------------------------------------------------------|
|   |                                                                |
|   |                                                                |
|   | By:                                                                 | /s/ PAUL J.  NAJARIAN |   |
|   |                                                                | Name: Paul J. Najarian |
|   |                                                                | Title: Vice President |
|   |                                                                |   |
|   |                                                                |
|   | **MORGAN STANLEY BANK**,  as a Lender                               |
|   |                                                                |
|   |                                                                |
|   | By:                                                                 | /s/ PAUL J.  NAJARIAN |   |
|   |                                                                | Name: Paul J. Najarian |
|   |                                                                | Title: Vice President |

 

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