AMENDMENT NUMBER ONE to the Amended and Restated Guaranty Dated as of October 1, 2004 by and between NEW CENTURY FINANCIAL CORPORATION and CITIGROUP GLOBAL MARKETS REALTY CORP.
Exhibit 10.11
AMENDMENT NUMBER ONE
to the
Amended and Restated Guaranty
Dated as of October 1, 2004
by and between
NEW CENTURY FINANCIAL CORPORATION
and
CITIGROUP GLOBAL MARKETS REALTY CORP.
to the
Amended and Restated Guaranty
Dated as of October 1, 2004
by and between
NEW CENTURY FINANCIAL CORPORATION
and
CITIGROUP GLOBAL MARKETS REALTY CORP.
This AMENDMENT NUMBER ONE is made this 24th day of August, 2006 (“Amendment Number
One”), by and between NEW CENTURY FINANCIAL CORPORATION, a Maryland corporation (the
“Guarantor”) and CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation (the
“Lender”), to the Amended and Restated Guaranty, dated as of October 1, 2004 by the
Guarantor in favor of the Lender, as amended (the “Guaranty”).
RECITALS
WHEREAS, the Guarantor and the Lender have agreed to amend the Guaranty as more fully set
forth herein; and
WHEREAS, as of the date of this Amendment Number One, the Guarantor represents to the Lender
that it is in compliance in all material respects with all of the representations and warranties
and all of the affirmative and negative covenants set forth in the Guaranty and is not in default
under the Guaranty.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the mutual covenants herein contained, the parties
hereto hereby agree as follows:
SECTION 1. Effective as of August 24, 2006, the Guaranty is hereby amended as follows:
(a) Section 3(b) of the Guaranty is hereby deleted in its entirety and replaced with the
following new Section:
(b) The Guarantor covenants and agrees with the Lender that, until the
payment in full of the Obligations or the termination of this Guaranty pursuant to
Section 20 hereof:
(i) Maintenance of Tangible Net Worth. The Guarantor will at all
times during each fiscal year maintain, on a consolidated basis, Tangible Net
Worth, on a consolidated basis, during each fiscal year, of not less than the sum
of (i) $750,000,000 and (ii) fifty percent (50%) of all equity capital raised
after November 1, 2004 as of the last day of each of its fiscal quarters.
(ii) Maintenance of Ratio of Total Indebtedness to Tangible Net
Worth. The Guarantor will at all times, maintain a ratio of Total
Indebtedness to Tangible Net Worth as of the last day of each fiscal quarter of
not greater than 13:1.
(iii) Liquidity. The Guarantor will, at all times, maintain, on a
consolidated basis, cash and Cash Equivalents in an amount not less than
$60,000,000.
(iv) REIT Status. The Guarantor shall take all steps necessary to
maintain its status as a REIT.
(b) Section 4 of the Guaranty is hereby deleted in its entirety and replaced with the
following new Section:
4. Right of Set-off. In addition to any rights and remedies of the
Lender provided by this Guaranty and by law, the Lender shall have the right,
without prior notice to the Guarantor, any such notice being expressly waived by
the Guarantor to the extent permitted by applicable law, upon any amount becoming
due and payable by the Guarantor hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all property and deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Lender or any
Affiliate thereof to or for the credit or the account of the Guarantor or any
Affiliate thereof. The Lender may set-off cash, the proceeds of the liquidation
of any Collateral and all other sums or obligations owed by the Lender or its
Affiliates to the Guarantor or its Affiliates against all of the obligations of
the Guarantor or its Affiliates to the Lender or its Affiliates, whether under
this Guaranty or under any other Guaranty between the parties or between the
Guarantor or any of its Affiliates and the Lender or any of its Affiliates, or
otherwise, whether or not such obligations are then due, without prejudice to the
Lender’s or its Affiliate’s right to recover any deficiency. The Lender agrees
promptly to notify the Guarantor after any such set-off and application made by
the Lender; provided that the failure to give such notice shall not affect
the validity of such set-off and application.
(c) Section 17 of the Guaranty is hereby deleted in its entirety and replaced with the
following new Section:
17. Governing Law. This Guaranty shall be governed by New York law
without reference to such state’s choice of law doctrine (other than Section
5-1401 of the New York General Obligations Law).
SECTION 2. Representations. In order to induce the Lender to execute and deliver this
Amendment Number One, the Guarantor hereby represents to the Lender that as of the date hereof,
after giving effect to this Amendment Number One, the Guarantor is in compliance in all material
respects with all of the terms and conditions of the Guaranty, and no Default or Event of Default
has occurred or is continuing thereunder.
SECTION 3. Defined Terms. Any terms capitalized but not otherwise defined herein
should have the respective meanings set forth in the Guaranty.
SECTION 4. Limited Effect. Except as amended hereby, the Guaranty shall continue in
full force and effect in accordance with its terms. Reference to this Amendment Number One need
not be made in the Guaranty or any other instrument or document executed in connection
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therewith, or in any certificate, letter or communication issued or made pursuant to, or with
respect to, the Guaranty, any reference in any of such items to the Guaranty being sufficient to
refer to the Guaranty as amended hereby.
SECTION 5. Governing Law. This Amendment Number One shall be 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 conflict of laws
doctrine applied in such state (other than Section 5-1401 of the New York General Obligations Law).
SECTION 6. Counterparts. This Amendment Number One may be executed by the Guarantor
on any number of separate counterparts, each of which shall be an original and all of which taken
together shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Guarantor has caused this Amendment Number One to be executed and
delivered by its duly authorized officers as of the day and year first above written.
| NEW CENTURY FINANCIAL CORPORATION (Guarantor) |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: | Executive Vice President | |||
