EXHIBIT 10.36
THIRD AMENDMENT TO
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") dated as of November 23, 1998 by and among NEW CENTURY MORTGAGE
CORPORATION, a California corporation (the"Company:), the lenders party to the
Credit Agreement referred to below (collectively, the "Lenders" and
individually, a "Lender"), and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, in its capacity as agent for the Lenders (in such capacity,
together with any successor agents appointed thereunder, the "Agent").
WITNESSETH THAT:
WHEREAS, the Company, the Lenders and the Agent are parties to a Third
Amended and Restated Credit Agreement dated as of May 29, 1998, as amended by a
First Amendment to Third Amended and Restated Credit Agreement dated as of July
27, 1998 and a Second Amendment to Third Amended and Restated Credit Agreement
dated as of September 30, 1998 (as so amended, the "Credit Agreement"), pursuant
to which the Lenders provide the Company with a revolving mortgage warehousing
credit facility; and
WHEREAS, the Company and the Lenders have agreed to amend the Credit
Agreement upon the terms and conditions herein set forth;
NOW, THEREFORE, for value received, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Lenders agree as follows:
1. Certain Defined Terms. Each capitalized term used herein without
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being defined herein that is defined in the Credit Agreement shall have the
meaning given to it therein.
2. Amendments to Credit Agreement. The Credit Agreement is hereby amended
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as follows:
(a) Restricted Payments. Section 4.13 is hereby amended in its entirety to
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read as follows:
4.13 Restricted Payments. The Company and NCFC will not make any
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Restricted Payments, other than (a) dividends paid by NCFC on its Series
1998A Convertible Preferred Stock in an amount not to exceed $1,500,000 per
annum, and (b) dividends paid by the Company to NCFC to enable NCFC to pay
such dividends in an amount not to exceed $1,500,000 per annum, in each
case provided that, both before and after giving effect to such dividend
payments, the Borrowers and NCFC are in compliance with the covenants set
forth in Section 4 of this Agreement and no Event of Default or Unmatured
Event of Default has occurred and is continuing.
3. Conditions to Effectiveness of this Amendment. This Amendment shall
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become effective when the Agent shall have received at least thirteen (13)
counterparts of this Amendment, duly executed by the Borrower and the Required
Lenders and acknowledged by NCFC, provided the following conditions are
satisfied:
(a) Before and after giving effect to this Amendment, the representations
and warranties of the Company in Section 3 of the Credit Agreement, Section 5 of
the Pledge and Security Agreement and Section 4 of the Servicing Security
Agreement, and of NCFC in Section 15 of the Guaranty, shall be true and correct
as though made on the date hereof, except for changes that are permitted by the
terms of the Credit Agreement.
(b) Before and after giving effect to this Amendment, no Event of Default
and no Unmatured Event of Default shall have occurred and be continuing.
(c) No material adverse change in the business, assets, financial
condition or prospects of the Company or NCFC shall have occurred since the
Effective Date.
(d) The following, each duly executed or certified, as the case may be,
and dated as of the date of delivery thereof:
(i) copy of resolutions of the Board of Directors of the Company,
certified by its Secretary or Assistant Secretary, authorizing or ratifying
the execution, delivery and performance of this Amendment;
(ii) a certified copy of any amendment or restatement of the
Articles of Incorporation or the By-laws of the Company made or entered
following the date of the most recent certified copies thereof furnished to
the Lenders;
(iii) certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if any)
with respect to this Amendment; and
(iv) such other documents, instruments, opinions and approvals as
the Agent may reasonably request.
6. Acknowledgments. The Company and each Lender acknowledge that, as
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amended hereby, the Credit Agreement remains in full force and effect with
respect to the Company and the Lenders, and that each reference to the Credit
Agreement in the Loan Documents shall refer to the Credit Agreement as amended
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hereby. The Company confirms and acknowledges that it will continue to comply
with the covenants set out in the Credit Agreement and the other Loan Documents,
as amended hereby, and that its representations and warranties set out in the
Credit Agreement and the other Loan Documents, as amended hereby, are true and
correct as of the date of this Amendment. The Company further represents and
warrants that (i) the execution, delivery and performance of this Amendment is
within its corporate powers and has been duly authorized by all necessary
corporate action; (ii) this Amendment has been duly executed and delivered by
the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms (subject
to limitations as to enforceability which might result from bankruptcy,
insolvency, or other similar laws affecting creditors' rights generally and
general principles of equity) and (iii) no Events of Default or Unmatured Events
of Default exist.
7. General.
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(a) The Company agrees to reimburse the Agent upon demand for all
reasonable expenses (including reasonable attorneys fees and legal expenses)
incurred by the Agent in the preparation, negotiation and execution of this
Amendment and any other document required to be furnished herewith, and to pay
and save the Lenders harmless from all liability for any stamp or other taxes
which may be payable with respect to the execution or delivery of this
Amendment, which obligations of The Company shall survive any termination of the
Credit Agreement.
(b) This Amendment may be executed in as many counterparts as may be
deemed necessary or convenient, and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original but
all such counterparts shall constitute but one and the same instrument.
(c) Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such provisions
in any other jurisdiction.
(d) This Amendment shall be governed by, and construed in accordance with,
the internal law, and not the law of conflicts, of the State of Minnesota, but
giving effect to federal laws applicable to national banks.
(e) This Amendment shall be binding upon the Company, the Lenders, the
Agent and their respective successors and assigns, and shall inure to the
benefit of the Company, the Lenders, the Agent and the successors and assigns of
the Lenders and the Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
NEW CENTURY MORTGAGE
CORPORATION
By /s/ Xxx Xxxxxxxx
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Its Executive Vice President
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U.S. BANK NATIONAL ASSOCIATION,
By /s/ Xxxxx X. Xxxx
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Its Senior Vice President
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GUARANTY FEDERAL BANK, FSB
By /s/ W. Xxxxx Xxxxxxxx
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Its Vice President
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[Signature Page for Fourth Amendment to
Third Amended and Restated Credit Agreement]
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COMERICA BANK
By /s/ Xxxxx X. Xxxxxxxxx
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Its Assistant Vice President
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FIRST UNION NATIONAL BANK
By /s/ X. X. Xxxxx
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Its VP
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RESIDENTIAL FUNDING CORPORATION
By /s/ illegible
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Its Director
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BANK ONE, TEXAS, N.A.
By /s/ Xxxx X. Xxxxxxx
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Its Vice President
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[Signature Page for Third Amendment to
Third Amended and Restated Credit Agreement]
THE BANK OF NEW YORK
By /s/ Xxxxxx X. Xxxxxxx
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Its Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx Xxxxxx
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Its Assistant Vice President
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NATIONSBANK OF TEXAS, N.A.
By /s/ Xxx X. Xxxxxx
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Its Senior Vice President
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FLEET BANK, N.A.
By____________________________________
Its_______________________________
[Signature Page for Third Amendment to
Third Amended and Restated Credit Agreement]
THE UNDERSIGNED, NEW CENTURY FINANCIAL CORPORATION, HEREBY (1) AGREES
THAT EACH REFERENCE TO THE CREDIT AGREEMENT, OR WORDS OF SIMILAR IMPORT,
CONTAINED IN THE THIRD AMENDED AND RESTATED GUARANTY DATED AS OF MAY 29, 1998
(THE "GUARANTY") BY THE UNDERSIGNED TO THE LENDERS AND THE AGENT, SHALL BE A
REFERENCE TO THE CREDIT AGREEMENT AS AMENDED BY THE FOREGOING AMENDMENT, (2)
CONFIRMS THAT THE GUARANTY SHALL REMAIN IN FULL FORCE AND EFFECT AFTER GIVING
EFFECT TO THE FOREGOING AMENDMENT, AND (3) CONFIRMS AND ACKNOWLEDGES THAT ITS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 15 OF THE GUARANTY ARE TRUE
AND CORRECT AS OF THE DATE OF THE FOREGOING AMENDMENT.
NEW CENTURY FINANCIAL CORPORATION
By /s/ Xxxxxx X. Xxxx
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Its CEO
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