Exhibit 10.71
AMENDMENT NUMBER FOUR
to the
RESIDUAL FINANCING FACILITY AGREEMENT
dated as of the 23rd day of June 1999
by and between
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
and
NC CAPITAL CORPORATION
This AMENDMENT NUMBER FOUR is made this 21st day of November, 2000, by and
between NC CAPITAL CORPORATION, having an address at 00000 Xxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxxxx 00000 (the "Borrower") and GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC., having an address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000 (the "Lender"), to the Residual Financing Facility Agreement, dated as of
the 23rd day of June 1999, by and between the Borrower and the Lender, as
amended (the "Agreement").
RECITALS
WHEREAS, the Lender and the Borrower desire to amend the Agreement,
subject to the terms hereof, to extend the term thereof and to provide for
certain other changes as further provided herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and of the mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. Effective as of November 21, 2000, Section 1 of the Agreement
is hereby amended by deleting the definition of "Mandatory Prepayment Amount" in
its entirety.
SECTION 2. Effective as of November 21, 2000, Section 1 of the Agreement
is hereby amended by deleting the definition of "Other Agreements" and replacing
it with the following:
"Other Agreements" shall mean any agreement, other than this
Agreement, between the Borrower or any of its Affiliates or agents
and Greenwich or any of its Affiliates or agents, whether now
existing or hereafter entered into, as any such agreement may be
amended, supplemented or otherwise modified from time to time.
SECTION 3. Effective as of November 21, 2000, Section 1 of the Agreement
is hereby amended by deleting the definition of "Xxxxx Xxxxxx Financing
Documents" and replacing it with the following:
"Xxxxx Xxxxxx Financing Documents" shall mean the Master Loan
and Security Agreement, by and between the Loan Parties and Xxxxx
Xxxxxx Real Estate Securities, Inc., as amended, supplemented or
otherwise modified from time to time.
SECTION 4. Effective as of November 21, 2000, Section 1 of the Agreement
is hereby amended by adding a new definition as follows:
"Rapid Amortization Event" shall occur if as of March 1, 2001
any of the following shall have occurred: (i) Borrower shall not
have completed the transfer to Fairbanks Capital Corp. of the
servicing for all of the Securitization Transactions which are
subject to this Agreement on substantially similar terms as outlined
in the presentation material provided to Lender by the Borrower on
November 15, 2000, (ii) Borrower shall not have completed the
renegotiation of the terms of its lending relationship with U.S.
Bank National Association on substantially similar terms as outlined
in the presentation material provided to Lender by the Borrower on
November 15, 2000, resulting in the Borrower receiving no less than
$2,500,000 of additional capital, or (iii) Borrower shall not have
completed a recapitalization plan acceptable to Lender in its sole
discretion.
SECTION 5. Effective as of November 21, 2000, Section 1 of the Agreement
is hereby amended by deleting the definition of "Termination Date" and replacing
it with the following:
"Termination Date" shall mean the Payment Date in October
2001, or such earlier date on which this Agreement shall terminate
in accordance with the provisions hereof or by operation of law, as
same may be extended by Lender in its sole discretion.
SECTION 6. Effective as of November 21, 2000, Section 1 of the Agreement
is hereby amended by deleting the definition of "U.S. Bank Financing Facility
Documents" and replacing it with the following:
"U.S. Bank Financing Facility Documents" shall mean the Fourth
Amended and Restated Credit Agreement, dated as of May 26, 1999, by
and between New Century and U.S. Bank National Association and all
other documents or agreements executed in connection therewith, as
amended, supplemented or otherwise modified from time to time (as
the same may be replaced or substituted therefor).
SECTION 7. Effective as of November 21, 2000, Section 2.5 of the Agreement
is hereby amended to read in its entirety as follows:
2.5 Repayment of the Loans. Each Loan outstanding shall be
repaid in full on the Termination Date, together with accrued but
unpaid interest thereon. In addition to the foregoing, the Borrower
hereby agrees to make a principal payment of $100,000 in reduction
of the principal amount outstanding hereunder on November 22, 2000;
provided, however, that in the event that that certain Master Loan
and Security Agreement, dated as of June 23, 1999, between the
Lender and the Borrower, as amended, is terminated prior to January
31, 2001, and the Borrower pays all amounts owing to the Lender
under such Master Loan and Security Agreement, prior to January 31,
2001, then the Borrower shall receive a credit of $100,000 against
the amount of any such payoff amount; provided, further, that any
excess of such $100,000 credit over such payoff amount shall be
credited against
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Borrower's Obligations hereunder. The Borrower also hereby agrees to
make on each Payment Date, beginning on the Payment Date in
December, 2000, a principal payment in reduction of the principal
amount outstanding hereunder (but in no event greater than the
outstanding Obligations of the Borrower hereunder) in an amount
equal to the excess of (a) either (i) if no Rapid Amortization Event
shall have occurred, the amount listed in Column I of Exhibit I for
the calendar month in which such Payment Date occurs, or (ii) if a
Rapid Amortization Event shall have occurred, the amount listed in
Column II of Exhibit I for the calendar month in which such Payment
Date occurs, over (b) all amounts received during the period
following the previous Payment Date up to and including the
applicable Payment Date pursuant to Section 6, but only to the
extent that such payments were made to pay down the unpaid principal
balance of the Loans under Section 2.7(b); provided, however, that
if no Rapid Amortization Event shall have occurred, the Borrower
shall not be required to make a principal payment in reduction of
the principal amount outstanding hereunder in an amount greater than
$750,000 for such Payment Date (notwithstanding any amount in excess
of $750,000 as determined by application of the previous formula).
The requirement of the Borrower to make any such payment pursuant to
the terms of the previous sentence is in addition to the requirement
that all cash dividends and distributions with respect to the
Pledged Securities be delivered to the Lender pursuant to Section 6,
and shall not be reduced or offset by any amounts received pursuant
to Section 6.
SECTION 8. Effective as of November 21, 2000, Section 2.7(b) of the
Agreement is hereby amended to read in its entirety as follows:
(b) Any payments made hereunder shall be applied in the order
of priority set forth in Section 9.3.
SECTION 9. Effective as of November 21, 2000, Section 3.5(b) of the
Agreement is hereby amended to read in its entirety as follows:
(b) The Lender shall not release the Lien of any Pledged
Security or other Collateral until such time as the Obligations of
the Borrower herein shall have been paid in full.
SECTION 10. Effective as of November 21, 2000, Section 5 of the Agreement
is hereby amended by adding a new Section 5.24 as follows:
5.24 No Unscheduled Amortization of Other Facilities. Prior to
the payment in full of Borrower's Obligations hereunder, the
Borrower shall not make, and shall not permit any of its Affiliates
to make, any unscheduled payments of principal or otherwise make a
prepayment or accelerate any payment of principal under the U.S.
Bank Financing Facility Documents (as the same may be replaced or
substituted therefor) or any financing or repurchase facility with
Salomon Brothers Realty Corp. or any Affiliate thereof, and the
Borrower shall not enter, and shall not permit any of its Affiliates
to enter, into any amendment, modification or other agreement to
increase the amount of such scheduled principal payments or
accelerate
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the due date of such payments. Nothing in this Section 5.24 shall
prevent the Borrower from satisfying any margin call under any such
facility or, if the terms of the related facility provide, applying
the amount of any income or proceeds received in connection with
collateral pledged under any such facility to reduce the outstanding
amount under such facility.
SECTION 11. Effective as of November 21, 2000, Section 5.7 of the
Agreement is hereby amended by adding to the end thereof the following:
"including, without limitation, any transfer documents necessary to re-register
any Pledged Security in the name of the Lender".
SECTION 12. Effective as of November 21, 2000, Section 6 of the Agreement
is hereby amended by deleting "Section 3" in the first sentence and replacing it
with "Section 2.7(b)".
SECTION 13. Effective as of November 21, 2000, Section 9.1(e) of the
Agreement is hereby amended to read in its entirety as follows:
(e) The Borrower or its Affiliate shall fail to pay any money
due under any other agreement, note, indenture or instrument
evidencing, securing, guaranteeing or otherwise relating to
indebtedness of the Borrower or such Affiliate for borrowed money,
which failure to pay constitutes a default or event of default under
any such agreement or indebtedness, or the Borrower or its Affiliate
receives notice, or a Responsible Officer has knowledge, of any
other default or event of default or other event which with the
giving of notice or the passing of time or both would constitute a
default or event of default under any such agreement or instrument,
with respect to amounts due under such agreement or instrument,
whether by acceleration or otherwise, in an aggregate amount of
$1,000,000 or such lesser amount as shall be included in a
cross-acceleration provision of any such agreement or instrument.
SECTION 14. Effective as of November 21, 2000, Section 9.3(a) of the
Agreement is hereby amended to read in its entirety as follows:
(a) Irrespective of whether an Event of Default shall have
occurred and be continuing, Greenwich may apply all or any part of
Proceeds of the Collateral in payment of the Obligations, or any
payment received pursuant to Sections 2.5 or 2.7, in the following
order of priority:
FIRST, to the payment of all reasonable costs and
expenses incurred by Greenwich in connection with this
Agreement, the Note or, any other Loan Document or any of the
Obligations, including, without limitation, all court costs
and the reasonable costs or expenses incurred in connection
with the exercise by Greenwich of any right or remedy under
this Agreement, the Note or any other Loan Document;
SECOND, to any default interest; then to interest due on
the Loans; then to the unpaid principal of the Loans; and
thereafter the satisfaction of all other Obligations; and
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THIRD, any excess to the Borrower or to whomsoever may
be lawfully entitled to receive the same.
SECTION 15. Effective as of November 21, 2000, the Agreement is hereby
amended by adding a new Exhibit I thereto in the form attached hereto as Annex
I.
SECTION 16. Effective Date. This Amendment Number Four shall be effective
upon execution of this Amendment Number Four and Lender's receipt of a principal
payment of $100,000 in reduction of the principal amount outstanding under the
Agreement.
SECTION 17. Representations. In order to induce the Lender to execute and
deliver this Amendment Number Four, the Borrower hereby represents to the Lender
that as of the date hereof, after giving effect to this Amendment Number Four,
the Borrower is in full compliance with all of the terms and conditions of the
Agreement and no Default or Event of Default has occurred and is continuing
under the Agreement.
SECTION 18. Defined Terms. Any terms capitalized but not otherwise defined
herein shall have the respective meanings set forth in the Agreement.
SECTION 19. Limited Effect. Except as amended hereby, the Agreement shall
continue in full force and effect in accordance with its terms.
SECTION 20. Governing Law. This amendment 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.
SECTION 21. Counterparts. This amendment may be executed in any number of
counterparts, each of which shall constitute an original and all of which, taken
together, shall constitute one instrument.
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IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Amendment Number Four to be executed and delivered by their duly authorized
officers as of the day and year first above written.
NC CAPITAL CORPORATION
(Borrower)
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------
Name: /s/ Xxxxxxx Xxxxxxxx
---------------------
Title: President
--------------------
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC.
(Lender)
By:
--------------------
Name:
--------------------
Title:
--------------------
ACKNOWLEDGED AND AGREED BY:
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------
Title: EVP/COO
----------------------
NEW CENTURY FINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxx
-----------------------
Title: EVP
----------------------
Annex I
EXHIBIT I
MINIMUM PRINCIPAL PAYMENT AMOUNTS
Column I Column II
-------- ---------
December 2000 550,000 NA
January 2001 550,000 NA
February 2001 1,000,000 NA
March 2001 1,000,000 1,500,000
April 2001 1,100,000 1,500,000
May 2001 1,250,000 1,500,000
June 2001 1,250,000 1,500,000
July 2001 1,200,000 1,800,000
August 2001 1,200,000 1,800,000
September 2001 1,200,000 2,000,000
RESTATED AFFILATE GUARANTY
RESTATED AFFILATE GUARANTY, dated as of November 21, 2000 (the
"Guaranty"), made by NEW CENTURY MORTGAGE CORPORATION and NEW CENTURY FINANCIAL
CORPORATION (each, a "Guarantor" and collectively, the "Guarantors") in favor of
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. (the "Lender"), party to the Master
Loan and Security Agreement referred to below.
RECITALS
The Lender has agreed (i) to make certain Advances to NC Capital
Corporation (the "Borrower") pursuant to the Master Loan and Security Agreement
dated as of June 23, 1999 (as amended, supplemented or otherwise modified from
time to time, the "Loan Agreement") by and between the Borrower and the Lender
and (ii) to make certain Loans to the Borrower pursuant to the Residual
Financing Facility Agreement dated as of June 23, 1999 (as amended, supplemented
or otherwise modified from time to time, the "Residual Agreement"; together with
the Loan Agreement, the "Financing Documents") by and between the Borrower and
the Lender, upon the terms and subject to the conditions set forth in the
Financing Documents. As a condition precedent to the obligation of the Lender to
make any such Advance or Loan to the Borrower under the Financing Documents, the
Gurantors executed that certain Affiliate Guaranty, dated as of June 23, 1999
(the "Original Guaranty"), wherein the Gurantors agreed to guaranty all of
Borrower's obligations under the Financing Documents, and Lender accepted such
guaranty.
Concurrent with the execution of the Guaranty, the Borrower and the
Lender have entered into an amendment to the Residual Agreement, pursuant to
which the Borrower and the Lender have agreed to extend the term of the Residual
Agreement and to make such other modifications set forth herein.
As a condition precedent to the execution of the amendment to the
Residual Agremeent, Lender requires that the Guarantors agree to modify the
Original Guaranty as set forth in this Guaranty.
In order to induce the Lender to enter into the amendment to the
Residual Agreement, the Guarantors agree to modify the Original Guaranty as set
forth in this Guaranty.
NOW, THEREFORE, in consideration of the premises and to induce the
Lender to enter the Financing Documents and to induce the Lender to make any
Advances or Loans to the Borrower under the Financing Documents, the Guarantors
hereby agree with the Lender as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined
in the Loan Agreement and use herein shall have the meanings given to them in
the Loan Agreement.
(b) "Adjustable Tangible Net Worth" shall mean Tangible Net Worth
minus 25% of the amount by which the book value of junior securitization
interests included in the determination
of Tangible Net Worth exceeds the amount of indebetedness incurred in connection
with the financing of such junior securitization interests.
"Obligations" shall mean the obligations and liabilities of the
Borrower to the Lender, including, without limitation, the obligations whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, or out of or in
connection with the Financing Documents, this Guaranty and any other document
made, delivered or given in connection therewith or herewith, whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all reasonable fees and disbursements
of counsel to the Lender that are required to be paid by the Borrower pursuant
to the terms of the Financing Documents) or otherwise.
"NCFC" shall mean New Century Financial Corporation.
"NCMC" shall mean New Century Mortgage Corporation.
"Stock Repurchase Program" shall mean the stock repurchase program
approved by NCFC's Board of Directors on February 18, 1999 pursuant to which
NCFC may spend up to $10,000,000 to repurchase shares of NCFC common stock on
the open market or in negotiated transactions.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guaranty shall refer to this Guaranty as a
whole and not to any particular provision of this Guaranty, and section and
paragraph references are to this Guaranty unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guaranty. (a) Each Guarantor hereby, unconditionally and
irrevocably, guarantees to the Lender and its successors, indorsees, transferees
and assigns, the prompt and complete payment and performance by the Borrower
when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) Each Gurantor further agrees to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Lender in enforcing any rights
with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Guarantors under this
Guaranty. This Guaranty shall remain in full force and effect until the
Obligations are paid in full, notwithstanding that from time to time prior
thereto the Borrower may be free from any Obligations.
(c) No payment or payments made by the Borrower, the Guarantors, any
other guarantor or any other Person or received or collected by the Lender from
the Borrower, the Guarantors, any other guarantor or any other Person by virtue
of any action or proceeding or any set-off or appropriation or application at
any time or from time to time in reduction of or in payment
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of the Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of the Guarantors hereunder which shall, notwithstanding
any such payment or payments other than payments made by the Guarantors in
respect of the Obligations or payments received or collected from the Guarantors
in respect of the Obligations, remain liable for the Obligations up to the
maximum liability of the Guarantors hereunder until the Obligations are paid in
full and the Loan Agreement in terminated.
(d) Each Guarantor agrees that whenever, at any time, or from time
to time, it shall make any payment to the Lender on account of its liability
hereunder, it will notify the Lender in writing that such payment is made under
this Guaranty for such purpose.
3. Representations, Warranties and Covenants of Guarantors. (a) Each
Guarantor hereby represents and warrants (i) that it is duly organized and
validly existing in good standing under the laws of the jurisdiction under which
it is organized and is duly qualified to do business and is in good standing in
every other jurisdiction as to which the nature of the business conducted by it
makes such qualification necessary, (ii) and perform this Guaranty, (iii) that
execution, delivery and performance of this Guaranty by it have been duly
authorized by proper action and are not in contravention of law or of the terms
of its Articles of Incorporation or By-Laws, or any agreement, instrument,
indenture or other undertaking to which it is a party or by which it is bound,
(iv) that all registrations and approvals of any governmental agency, department
or commission necessary for the execution, delivery and performance of this
Guaranty and for the validity and enforceability thereof, have been obtained and
are in full force and effect, (v) that this Guaranty is the legal, valid and
binding obligation of the Guarantors, enforceable against the Guarantors, in
accordance with its terms, subject to bankruptcy, insolvency and similar laws
and to the availability of equitable remedies, (vi) that no legal proceedings
are pending, or threatened, before any court or governmental agency which would
adversely affect its financial condition, operations or any licenses or its
ability to perform under this Guaranty, and (vii) that each Guarantor has
received and reviewed copies of the Financing Documents.
(b) The Guarantors covenant and agree 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. (a) The Tangible Net
Worth of NCMC shall not be less than the greatest of (i) $85,000,000
measured on a quarterly basis (as at the end of each month), (ii)
(A) 85% of Tangible Net Worth at the end of the most recently
completed fiscal year plus (B) 90% of capital contributions made
during such fiscal year plus (C) 50% of positive year to date net
income, and (iii) the amount required under any other agreement,
note, indenture or instrument evidencing, securing, guaranteeing or
otherwise relating to indebtedness of NCMC or the Borrower or any of
their affiliates for borrowed money, including any repurchase
facility.
(b) The Tangible Net Worth of NCFC shall not be less than the
greatest of (i) $130,000,000 measured on a quarterly basis (as at
the end of the month), (ii) (A)
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85% of Tangible Net Worth at the end of the most recently completed
fiscal year plus (B) 90% of capital contributions made during such
fiscal year plus (C) 50% of positive year to date net income, and
(iii) the amount required under any other agreement, note, indenture
or instrument evidencing, securing, guaranteeing or otherwise
relating to indebtedness of NCFC or the Borrower or any of their
Affiliates for borrowed money, including any repurchase facility.
(ii) Maintenance of Ratio of Indebtedness to Tangible Net
Worth. (a) NCMC shall not permit the ratio of Indebtedness to
Tangible Net Worth to be greater than the lesser of (a) 8:1, or (b)
the amount required under any other agreement, note, indenture or
instrument evidencing, securing, guaranteeing or otherwise relating
to indebtedness of NCMC or the Borrower or any of their Affiliates
for borrowed money, including any repurchase facility.
(b) NCFC shall not permit (i) the ratio of the average daily
amount of Indebtedness of NCFC and its Subsidiaries to the average
of Tangible Net Worth of NCFC and its Subsidiaries to be greater
than the lesser of (a) 10:1, or (b) the amount required under any
other agreement, note, indenture or instrument evidencing, securing,
guaranteeing or otherwise relating to indebtedness of NCFC or the
Borrower or any of their Affiliates for borrowed money, including
any repurchase facility; (ii) the ratio of Indebtedness of NCFC and
its Subsidiaries to Tangible Net Worth of NCFC and its Subsidiaries
to be greater than the lesser of (a) 15:1, or (b) the amount
required under any other agreement, note, indenture or instrument
evidencing, securing, guaranteeing or otherwise relating to
indebtedness of NCFC or the Borrower or any of their Affiliates for
borrowed money, including any repurchase facility; and (iii) the
ratio of Indebtedness of NCFC to Adjusted Tangible Net Worth of NCFC
to be greater than the lesser of (a) 12:1, or (b) the amount
required under any other agreement, note, indenture or instrument
evidencing, securing, guaranteeing or otherwise relating to
indebtedness of NCFC or the Borrower or any of their Affiliates for
borrowed money, including any repurchase facility.
(iii) Liquidity. The aggregate amount of the NCMC's cash, Cash
Equivalents and available capacity under committed warehouse
facilities (to the extent that NCMC has available unencumbered
assets which are eligible to be pledged under such facilities) shall
not be less than the greater of (a) $10,000,000, or (b) the amount
required under any other agreement, note, indenture or instrument
evidencing, securing, guaranteeing or otherwise relating to
indebtedness of NCMC or the Borrower or any of their Affiliates for
borrowed money, including any repurchase facility.
(iv) Restricted Payments. NCMC and NCFC will not make any
Restricted Payments, other than (a) dividends paid by NCFC on its
Series 1998A Convertible Preferred Stock and its Series 1999A
Convertible Preferred Stock in an amount not to exceed $3,000,000
per annum, and (b) dividends paid by NCMC to NCFC to
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enable NCFC to pay such dividends in an amount not to exceed
$3,000,000 per annum.
(c) At the time that the Guarantors deliver their consolidated
financial statements to the Lender in accordance with Section 7.01 of the Loan
Agreement and Section 5.1 of the Residual Agreement, the Guarantors shall
forward to the Lender a certificate of a Responsible Officer of each Guarantor
which demonstrates that each Guarantor is in compliance with the covenants set
forth in clauses (b) (i) through (iv) above and shall indicate the amount
required under any other agreement, note, indenture or instrument evidencing,
securing, guaranteeing or otherwise relating to indebtedness of such Guarantor
or the Borrower or any of their Affiliates for borrowed money, including any
repurchase facility, if such amount is greater than the amounts otherwise set
forth in clauses (b) (i) through (iv).
4. Right of Set-off. Upon the occurrence of any Event of Default,
the each Guarantor hereby irrevocably authorizes the Lender and each of its
affiliates at any time and from time to time without notice to the Guarantors,
any such notice being expressly waived by the Guarantors, to set-off and
appropriate and apply any and all deposits (general or special, time or demand,
provisional of 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
of its affiliates to or for the credit or the account of the Guarantors, or any
part thereof in such amounts as the Lender or any of its affiliates may elect,
against and on account of the obligations and liabilities of the Guarantors to
the Lender hereunder and claims of every nature and description of the Lender or
any of its affiliates against the Guarantors, in any currency, whether arising
hereunder, under the Financing Documents as the Lender may elect, whether or not
the Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Lender shall notify
the Guarantors promptly of any such set-off and the application made by the
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Lender under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Lender may have.
5. No Subrogation. Notwithstanding any payment or payments made by
the Guarantors hereunder or any set-off or application of funds of the
Guarantors by the Lender, the Guarantors shall not be entitled to be subrogated
to any of the rights of the Lender against the Borrower or any other guarantor
or any collateral security or guarantee or right of offset held by the Lender or
any of its affiliates for the payment of the Obligations, nor shall the
Guarantors seek or be entitled to seek any contribution or reimbursement from
the Borrower or any other guarantor in respect of payments made by the
Guarantors hereunder, until all amounts owing to the Lender by the Borrower on
account of the Obligations are paid in full and the Financing Documents are
terminated. If any amount shall be paid to the Guarantors on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, such amount shall be held by the Guarantors in trust for the
Lender, segregated from other funds of the Guarantors, and shall, forthwith upon
receipt by the Guarantors, be turned over to the Lender in the exact form
received by the Guarantors (duly indorsed by the Guarantors to the Lender, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as the Lender may determine.
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6. Amendments, Etc. with Respect to the Obligations. The Guarantors
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against the Guarantors and without notice to or further assent by the
Guarantors, any demand for payment of any of the Obligations made by the Lender
may be rescinded by the Lender and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Lender, and the Financing Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Lender may deem advisable from time to
time, and an collateral security, guarantee or right of offset at any time held
by the Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Lender shall not have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Obligations or for this Guaranty or any property subject thereto. When making
any demand hereunder against the Guarantors, the Lender may, but shall be under
no obligation to, make a similar demand or to collect any payments from the
Borrower or any such other guarantor or any release of the Borrower or such
other guarantor shall not relieve the Guarantors of its obligations or
liabilities hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Lender against the Guarantors.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal proceedings.
7. Waiver of Rights. Each Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations, and notice of
or proof of reliance by the Lender upon this Guaranty or acceptance of this
Guaranty; the Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guaranty; and all dealings between the Borrower and the
Guarantors, on the one hand, and the Lender, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon this
Guaranty. Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or the
Guarantors with respect to the Obligations.
8. Guaranty Absolute and Unconditional. Each Guarantor understands
and agrees that this Guaranty shall be construed as a continuing, absolute and
unconditional guarantee of the full and punctual payment and performance by the
Borrower of the Obligations and not of their collectibility only and is in no
way conditioned upon any requirement that the Lender first attempt to collect
any of the obligations from the Borrower without regard to (a) the validity,
regularity or enforceability of the Financing Documents, any of the Obligations
or any other collateral security therefor or guarantee or right of offset with
respect thereto at any time or from time to time held by the Lender, (b) any
defense, set-off or counterclaim (other than a defense of payment or
performance) which may at any time be available to or be asserted by the
Borrower against the Lender, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Borrower or the Guarantors) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Borrower from the Obligations, or of the Guarantors from this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder
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against the Guarantors, the Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrower or any other
Person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any failure by the Lender to
pursue such other rights or remedies or to collect any payments from the
Borrower or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of offset, or any release of
the Borrower or any such other Person or any such collateral security, guarantee
or right of offset, shall not relieve the Guarantors of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express, implied
or available as a matter of law, of the Lender against the Guarantors. This
Guaranty shall remain in full force and effect and be binding in accordance with
and to the extent of its terms upon the Guarantors and the successors and
assigns thereof, and shall inure to the benefit of the Lender, and its
successors, indorsees, transferees and assigns, until all the Obligations and
the obligations of the Guarantors under this Guaranty shall have been satisfied
by payment in full and the Financing Documents shall be terminated,
notwithstanding that from time to time during the term of the Financing
Documents the Borrower may be free from any Obligations.
9. Reinstatement. This Guaranty shall continue to be effective, or
be reinstated, as the case may be, if at any time payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Borrower or the Guarantors, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantors or any substantial part of its
property, or otherwise, all as though such payments had not been made.
10. Payments. Each Guarantor hereby guarantees that payments
hereunder will be paid to the Lender without set-off or counterclaim in U.S.
Dollars in accordance with the voting instructions of the Lender.
11. Notices. All notices, requests and other communications provided
for herein (including without limitation any modifications of, or waivers,
requests or consents under, this Guaranty) shall be given or made in writing
(including without limitation by telex or telecopy) delivered to NCMC and NCFC
at the address specified on the signature page to this Guaranty and to the
Lender at the "Address for Notices" specified below its name on the signature
page to the Loan Agreement; or, as to any party, at such other address as shall
be designated by such party in a written notice to each other party. All such
communications shall be deemed to have been duly given when transmitted by telex
or telecopy or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
12. Severability. Any provision of this Guaranty 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 provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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13. Integration. This Guaranty and the Financing Documents represent
the agreement of the Guarantors with respect to the subject matter hereof and
thereof and there are not promises or representations by the Lender relative to
the subject matter hereof or thereof not reflected herein or therein.
14. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None
of the terms or provisions of this Guaranty may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Guarantors
and the Lender, provided that any provision of this Guaranty may be waived by
the Lender.
(b) The Lender shall not by any act (except by a written
instrument pursuant to Section 14(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Lender, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Lender of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Lender would otherwise have
on any future occasion.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
15. Section Headings. The section headings used in this Guaranty are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
16. Successors and Assigns. This Guaranty shall be binding upon the
successors and assigns of the Guarantors and shall inure to the benefit of the
Lender and its successors and assigns. This Guaranty may not be assigned by the
Guarantors without the express written consent of the Lender.
17. Governing Law. This Guaranty shall be governed by New York law
without reference to choice of law doctrine.
18. SUBMISSION TO JURISDICTION WAIVERS. EACH GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY AND THE FINANCING DOCUMENTS, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE FEDERAL COURTS OF THE UNITED
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STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE
COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS
ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER
SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
19. WAIVER OF JURY TRIAL. EACH OF THE GUARANTORS AND THE LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, ANY OF THE FINANCING DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
20. Termination. This Guaranty shall terminate upon the final
payment in full of the Obligations and the termination of the Financing
Documents.
21. Joint and Several Liability. Notwithstanding anything to the
contrary contained in this Guaranty, the Guarantors hereby acknowledge and agree
that they will be jointly and severally liable to the Lender for all
representations, warranties, covenants, obligations and liabilities of the
Guarantors hereunder.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly
executed and delivered by their duly authorized officers as of the day and year
first above written.
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: EVP/COO
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Address:
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NEW CENTURY FINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------
Title: EVP
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Address:
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