EX-10.80
RECEIVABLES FINANCING FACILITY AGREEMENT
RECEIVABLES FINANCING FACILITY AGREEMENT, dated as of the 28th day of
February, 2001, by and between (i) OCWEN FEDERAL BANK FSB, a federal savings
bank, as Lender and Pledgee (the "Lender"), and (ii) NEW CENTURY MORTGAGE
CORPORATION, a California corporation, as Borrower and Pledgor (the "Borrower").
R E C I T A L S
WHEREAS, the Borrower desires to enter into this Agreement (as defined
herein) and the Note (as defined herein); and
WHEREAS, the Borrower will incur monetary and other obligations to the
Lender pursuant to this Agreement and the Note; and
WHEREAS, the Borrower, as master servicer with respect to those certain
securitization transactions listed on Exhibit C hereto (the "Securitization
Transactions"), shall be entitled to Receivables (as defined herein) from the
applicable trust that owns the underlying Mortgage Loans (as defined herein);
and
WHEREAS, all of the right, title and interest in the Receivables and the
Other Assets (as defined herein) are intended to be and shall be the assets of
the Borrower; and
WHEREAS, Lender is willing to provide the Borrower with a one-time Loan in
consideration of the pledge of the Collateral (as defined herein) and on the
terms and conditions set forth herein; and
WHEREAS, it is a condition precedent to the obligation of Lender to enter
into this Agreement and to make the Loan hereunder to the Borrower, that the
Borrower shall have executed and delivered UCC-1 financing statements evidencing
the lien on the the Pledged Assets in favor of Lender;
NOW THEREFORE in consideration of the premises and mutual agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
Section 1. Definitions. When used herein, the following terms shall have the
meanings set forth below:
"Affiliate" shall mean, with respect to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. For
purposes of this definition, control of a Person shall mean the power, direct or
indirect, (i) to vote 25% or more of the securities having ordinary voting power
for the election of directors of such Person or (ii) to direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agreement" shall mean this Receivables Financing Facility Agreement, as
the same may be amended, supplemented or otherwise modified from time to time.
"Borrower" shall mean New Century Mortgage Corporation, a California
corporation, and any successor thereto.
"Business Day" shall mean any day other than a Saturday, Sunday or any day
on which federal reserve banks or the Lender are not authorized or required to
close.
"Capital Stock" shall mean any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Cash" shall mean all cash and cash equivalents, as shown on the
consolidated balance sheet of the Borrower prepared in accordance with GAAP,
including, without limitation, all deposit accounts of the Borrower with the
Lender or any other financial institution.
"Code" shall mean the Internal Revenue Code of 1986, together with all
amendments from time to time thereto.
"Collateral" shall have the meaning set forth in Section 3.1 hereof.
"Collateral Deficiency" shall have the meaning set forth in Section 3.5(a)
hereof.
"Collateral Value" shall mean with respect to the Loan and any of the
Collateral securing the Loan, the value determined by the Lender in its sole
discretion.
"Default" shall mean an Event of Default or an event that with notice or
lapse of time or both would become an Event of Default.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that is a member of a group that is treated as a single employer
under Section 414 of the Code of which the Borrower is a member.
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"Event of Default" shall have the meaning set forth in Section 9 hereof.
"Facility Amount" shall mean (a) initially, $18,000,000, and (b) following
the date that any Loan is made pursuant to Section 2.2(c), the sum of (i) the
amount of the initial Loan made hereunder, plus (ii) the amount of the Loan made
pursuant to Section 2.2(c).
"Foreclosure Advance" shall mean a recoverable advance made by Borrower
for T&I Payments or the costs of repair or enforcement in connection with the
foreclosure or other enforcement of a Mortgage Loan which is part of the
underlying pool of Mortgage Loans backing a Securitization Transaction.
"Foreclosure Advance Receivable" shall mean as of any date of
determination, a valid, readily enforceable claim of the Borrower to retain
amounts received or to be received from an obligor, or out of the foreclosure
proceeds, under a Mortgage Loan serviced by the Borrower to reimburse the
Borrower for a Foreclosure Advance.
"GAAP" shall mean generally accepted accounting principles as in effect in
the United States, as may be in place from time to time, on a consistent basis.
"Guarantee" shall mean any obligation, contingent or otherwise, of any
Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness of any other Person (the "primary obligor") in any manner, whether
directly or otherwise, (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or to purchase (or to advance or
supply funds for the purchase of) any direct or indirect security therefor, (b)
to purchase property, securities, or services for the purpose of assuring the
owner of such Indebtedness of the payment of such Indebtedness, (c) to maintain
working capital, equity capital, or other financial statement condition of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
otherwise to protect the owner thereof against loss in respect thereof, or (d)
entered into for the purpose of assuring in any manner the owner of such
Indebtedness of the payment of such Indebtedness or to protect such owner
against loss in respect thereof; provided, that the term "Guarantee" shall not
include endorsements for collection or deposit, in each case in the ordinary
course of business.
"Indebtedness" shall mean with respect to any Person at any time, without
duplication, all obligations of such Person which, in accordance with GAAP,
consistently applied, should be classified as liabilities on an unconsolidated
balance sheet of such Person, but in any event shall include: (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
all obligations of such Person upon which interest charges are customarily paid
or accrued, (d) all obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by such Person, (e)
all obligations of such Person issued or assumed as the deferred purchase price
of property or services, but excluding accrued expenses and trade payables
incurred and paid in the ordinary course of business, (f) all obligations of
others secured by any Lien on property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (g) all capitalized
lease
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obligations of such Person, (h) all obligations of such Person in respect of
interest rate protection agreements, (i) all obligations of such Person, actual
or contingent, in respect of letters of credit or banker's acceptances, (j) all
obligations of any partnership or joint venture as to which such Person is or
may become personally liable, and (k) all Guarantees by such Person of
Indebtedness of others.
"Investment" as applied to any Person, shall mean, any direct or indirect
purchase or other acquisition by that Person of, or a beneficial interest in,
stock or other securities of any other Person, or any direct or indirect loan,
advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by that Person to any other Person, including all
Indebtedness and accounts receivables from that other Person which are not
current assets or did not arise from sales to that other Person in the ordinary
course of business.
"Interest Rate" shall have the meaning set forth in Section 2.4(a) hereof.
"Junior Securitization Interests" shall mean a Mortgage-backed Security
that represents a subordinated right to receive principal or interest payments
on the underlying mortgage loans.
"Lender" shall mean Ocwen Federal Bank FSB, a federal savings bank, and
any successor thereto.
"Lien" shall mean any interest in property securing an obligation owed to,
or a claim by, a Person other than the owner of such property, whether such
interest is based on the common law, statute or contract, and including, but not
limited to, the security interest, security title or lien arising from a
security agreement, mortgage, deed of trust, deed to secure debt, encumbrance or
pledge for security purposes.
"Loan" shall mean the extension of funds to the Borrower by Lender
pursuant to Section 2 of this Agreement.
"Loan Documents" shall mean and include this Agreement, the Note and all
other documents and instruments executed and delivered in connection herewith or
therewith.
"Mandatory Prepayment Amount" shall mean for the Loan, all of the cash
flow attributable to the related Pledged Assets after payment of interest on the
Loan pursuant to Section 2.4(a) hereof, which are pledged as Collateral for such
Loan.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, properties or condition (financial or otherwise) of (i)
the Borrower individually or (ii) the Borrower and its Subsidiaries taken as a
whole or (b) the validity or enforceability of this or any of the other Loan
Documents or the rights or remedies of the Lender hereunder or thereunder or (c)
the ability of the Borrower to perform its obligations under any Loan Document
or any Other Agreement.
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"Mortgage" shall mean a mortgage or deed of trust on real property which
has been improved by a completed single family (i.e., one to four family units)
dwelling unit (i.e., a detached house, townhouse or condominium).
"Mortgage-backed Security" shall mean a security (including, without
limitation, a participation certificate) that is an interest in a pool of
Mortgage Loans or is secured by such an interest.
"Mortgage Loan" shall mean a Mortgage Note and the related Mortgage.
"Mortgage Note" shall mean a promissory note which has a term not
exceeding 30 years evidencing a loan or advance which is secured by a Mortgage.
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note" shall have the meaning set forth in Section 2.3(a) hereof.
"Notice of Borrowing" shall have the meaning set forth in Section 2.2(a)
hereof.
"Obligations" shall mean (i) the unpaid principal of and premiums, if any,
and interest (including interest accruing at the then applicable rate provided
in this Agreement after the maturity of the Loan and interest accruing at the
then applicable rate provided in this Agreement after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceedings, relating to the Borrower whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) on the Loan, when and as
due, whether at maturity, by acceleration, upon one or more dates set for
prepayment or otherwise and (ii) all other obligations and liabilities of every
nature of the Borrower from time to time owing to Lender, in each case whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred (including monetary obligations incurred during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
which may arise under, out of, or in connection with, this Agreement or any
other Loan Document or under any other document made, delivered or given in
connection with any of the foregoing, in each case whether on account of
principal, premium, if any, interest, fees, indemnities, costs, expenses or
otherwise (including all reasonable fees and disbursements of counsel to the
Lender) that are required to be paid by the Borrower pursuant to the terms of
this Agreement or any other Loan Document.
"One-Month LIBOR" shall mean as of any date of determination, the rate per
annum equal to the rate appearing at page 3750 of the Telerate Screen as
one-month LIBOR on such day, and if such rate shall not be so quoted, the rate
per annum at which the Lender is offered Dollar deposits at or about 11:00 a.m.,
New York City time, on such date by prime banks in the interbank eurodollar
market where the eurodollar and foreign currency exchange operations in respect
of the Loan are then
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being conducted for delivery on such day for a period of one month, and in an
amount comparable to the amount of the Loan outstanding on such day.
"Other Agreements" shall mean any agreement, other than this Agreement,
between the Borrower and Lender 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.
"Other Assets" shall mean the Servicing Rights (or Borrower's contract
right to repurchase those Servicing Rights which are subject to the U.S. Bank
Repurchase Agreement) with respect to the underlying Mortgage Loans with respect
to the Securitization Transactions.
"Maturity Date" shall mean March 30, 2001.
"Net Worth" shall mean the excess of total assets of the Borrower over
total liabilities of the Borrower, determined in accordance with GAAP.
"Permitted Lien" shall mean the interest of U.S. Bank National Association
on the Other Assets pursuant to the U.S. Bank Repurchase Agreement, which
interest is senior to the lien of the Lender on the Other Assets.
"Person" shall mean an individual, partnership, limited liability company,
corporation, business trust, joint venture or other entity of whatever nature.
"Plan" shall mean, at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which any the Borrower or an Affiliate is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Pledged Assets" shall mean the Receivables and Other Assets pledged to
the Lender hereunder from time to time as Collateral hereunder.
"Pledgee" shall mean Lender.
"Pledgor" shall mean the Borrower.
"Pool P&I Payment" shall mean a recoverable payment of delinquent
principal or interest on a Mortgage Loan (other than a Mortgage Loan which is in
bankruptcy or in the process of foreclosure) which is part of the underlying
pool of Mortgage Loans backing a Securitization Transaction.
"Pool P&I Payment Receivable" shall mean as of any date of determination,
a valid, readily enforceable claim of the Borrower to retain amounts received or
to be received from an obligor under
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a Mortgage Loan serviced by the Borrower that is currently due from such obligor
to reimburse the Borrower for a Pool P&I Payment.
"Pooling and Servicing Agreement" shall mean any pooling and servicing
agreement, trust agreement or other agreement pursuant to which the Mortgage
Loans underlying any of the Pledged Assets are serviced or administered or the
Pledged Assets are issued or exchanged.
"Proceeds" shall mean all "proceeds" as defined in Section 9-306(1) of the
UCC and, in any event, shall include without limitation, all collections,
distributions or other income or receipts from or in respect of the Pledged
Assets.
"Receivable" shall mean a Pool P&I Payment Receivable, a T&I Payment
Receivable or a Foreclosure Advance Receivable with respect to the
Securitization Transactions or the underlying Mortgage Loans thereto.
"Responsible Officer" shall mean the president or any vice president of
the Borrower.
"Restricted Payments" shall mean with respect to any Person, collectively,
all dividends or other distributions of any nature (cash, securities, assets or
otherwise), and all payments, by virtue of redemption or otherwise, on any class
of equity securities (including, without limitation, warrants, options or rights
therefor) issued by such Person, whether such securities are now or may
hereafter be authorized or outstanding and any distribution in respect of any of
the foregoing, whether directly or indirectly.
"Securitization Transaction" shall have the meaning set forth in the
recitals hereto.
"Servicing Contract" shall mean a contract or agreement purchased by
Borrower or entered into by Borrower for its own account (and not as nominee or
subservicer), whether now existing or hereafter purchased or entered into,
pursuant to which Borrower services Mortgage Loans or Mortgage Loan pools for
others.
"Servicing Rights" shall mean any and all rights of Borrower held for its
own account (and not as nominee or subservicer), whether pursuant to a Servicing
Contract or otherwise, to service Mortgage Loans or Mortgage Loan pools,
including, without limitation, (i) all rights to collect payments due and
enforce the rights of the mortgagee under any Mortgage Loans, (ii) all rights to
receive compensation and termination fees under any Servicing Contract and (iii)
all rights to receive the proceeds from any sale or other transfer of Borrower's
interest in any Servicing Contract.
"Servicing Rights Purchase Agreement" shall mean that certain Servicing
Rights Purchase Agreement, dated as of February 28, 2001, by and between the
Borrower and the Lender.
"Subsidiary" shall mean, as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such
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other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person.
"Tangible Net Worth" shall mean, as of any date of determination, the
consolidated Net Worth of the Borrower and its subsidiaries, less the
consolidated net book value of all assets of the Borrower and its subsidiaries
(to the extent reflected as an asset in the balance sheet of the Borrower or any
subsidiary at such date) which will be treated as intangibles under GAAP,
including, without limitation, such items as deferred financing expenses, net
leasehold improvements, good will, trademarks, trade names, service marks,
copyrights, patents, licenses and unamortized debt discount and expense.
"T&I Payment" shall mean a recoverable payment of real estate taxes or
insurance premiums in respect of a Mortgage Loan (other than a Mortgage Loan
that is in bankruptcy or in the process of foreclosure) which is part of the
underlying pool of Mortgage Loans backing a Securitization Transaction.
"T&I Payment Receivable" shall mean as of any date of determination, a
valid, readily enforceable claim of the Borrower against any obligor on any
Mortgage Loan (other than a Mortgage Loan that is in bankruptcy or in the
process of foreclosure) and the accounts of such obligor for repayment of any
T&I Payment made by the Borrower that is currently due from such obligor to
reimburse the Borrower for a T&I Payment.
"Termination Date" shall mean the Maturity Date 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.
"Tri-Party Agreement" shall have the meaning set forth in Section 8.2(f).
"Trustee" shall mean any trustee under a Pooling and Servicing Agreement.
"UCC" shall mean the Uniform Commercial Code from time to time in effect
in the State of New York.
"U.S. Bank Repurchase Agreement" shall mean that certain Restated Purchase
Agreement, dated as of July 31, 2000, between the Borrower and U.S. Bank
National Association, as amended.
Section 2. The Loan.
2.1 Agreement to Lend. Subject to the terms and conditions of this
Agreement, and provided that no Default or Event of Default shall have occurred
and be continuing hereunder, Lender
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shall make available to the Borrower a one-time term loan in the principal
amount not to exceed the Facility Amount. The Borrower may not reborrow any
amount of the Loan hereunder.
2.2 Manner of Borrowing.
(a) The Borrower shall notify Lender of its intention to borrow
hereunder by delivering a Notice of Borrowing substantially in the form of
Exhibit B hereto (a "Notice of Borrowing") not later than 12:00 Noon New York
City time on the Business Day for which the Loan is requested. The Notice of
Borrowing shall specify (i) the amount of the Loan requested and (ii) a summary
of the Pledged Assets securing the Loan.
(b) If, as of the date of the requested Loan, all of the conditions
to the making of the Loan set forth in Section 8 have been met, Lender shall,
via wire transfer in immediately available funds, extend the requested Loan to
the Borrower; provided that the outstanding principal amount of the Loan shall
not exceed the Facility Amount.
(c) Notwithstanding any other provision to the contrary, without any
further action by the Borrower hereunder, on the date that the Lender is
required to make the payments of Advances and Prepayment Interest Shortfall
Amounts (as such terms are defined in the Servicing Rights Purchase Agreement)
in March, 2001, pursuant to the terms of Section 6.01(a) of the Servicing Rights
Purchase Agreement, the Lender shall be deemed to have made an additional Loan
to the Borrower in an amount equal to the aggregate amount of all such Advances
and Prepayment Interest Shortfall Amounts actually paid by the Lender.
2.3 Note.
(a) The Borrower's obligation to repay the Loan extended and
interest thereon shall be evidenced by a single promissory note of the Borrower
payable to the order of Lender, substantially in the form of Exhibit A hereto
(as amended, supplemented or otherwise modified from time to time, the "Note").
(b) The date and amount of the Loan made by Lender and the date and
amount of each payment of principal made by the Borrower shall be evidenced by
entries made by Lender in its books and records kept by it in the normal course
of its business. The Borrower agrees and acknowledges that such books and
records of Lender documenting actual disbursements paid to and received from the
Borrower shall constitute prima facie evidence of the Borrower's Indebtedness
outstanding hereunder.
2.4 Interest.
(a) The Borrower agrees to pay Lender interest on the unpaid
principal amount of the Loan from and including the date the Loan is extended to
but not including the date of which
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the Loan is paid in full. Interest shall accrue on a daily basis at a rate per
annum equal to One-month LIBOR plus 2.5% (two hundred and fifty basis points)
(the "Interest Rate").
(b) If the Borrower shall fail to pay when due (whether at stated
maturity, by acceleration or otherwise) any principal, interest or other amount
owing to Lender under this Agreement or the Note and such failure to pay shall
constitute an Event of Default, the Borrower shall pay to Lender on demand such
principal, interest or other amount together with interest on such principal,
interest or other amount in default from and including the date such payment
became due until payment thereof in full at a rate per annum equal to the
Interest Rate plus one and one-half percent (1.5%) per annum.
(c) All interest payable hereunder shall be computed on the basis of
a 360-day year for the actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
2.5 Repayment of the Loan. The Loan outstanding shall be repaid in full on
the Termination Date, together with accrued but unpaid interest thereon.
2.6 Optional Prepayments. The Borrower may at any time upon one (1)
Business Day's prior written notice to Lender prepay the Loan in whole or in
part, without premium, together with accrued interest to the date of such
prepayment on the amount prepaid.
2.7 Payment Procedures.
(a) All payments to Lender hereunder or under the Note shall be made
in immediately available funds, and free and clear of and without deduction for
any taxes, levies, duties, charges, counterclaims, set-offs, fees or
withholdings of any nature hereafter imposed, assessed or collected, not later
than the due date for such payment through the Federal Reserve Fedwire System
for credit to the account of the Lender (Ocwen Federal Bank, ABA# 000000000,
G/L# 545542199, Account No. 5455.42199, Reference: New Century, Attention:
Xxxxxxx Xxxxxxx).
(b) Any payments made hereunder shall be applied first against costs
and expenses due hereunder pursuant to Section 9.3; then against default
interest, if any; then against interest due on the Loan; and thereafter against
the unpaid principal of the Loan.
(c) Any payments made on account of principal hereunder may not be
reborrowed, it being the express intent of the parties that this Agreement cover
a one-time term Loan (other than any Loan made pursuant to Section 2.2(c)).
Section 3. Pledge; Grant of Security Interest.
3.1 Pledge. The Borrower hereby pledges and grants to Lender and its
successors, endorsees, transferees and assigns, as collateral security for the
prompt and complete payment and
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performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, a security interest in and assignment of all of
the Borrower's rights, title and interest in and to the following property and
interests in property, whether now owned or existing or hereafter arising or
acquired and wheresoever located and whether the same comprise accounts,
instruments, securities, chattel paper or general intangibles (as each such term
is defined in the UCC) (the "Collateral"):
(a) all of the Borrower's rights in the Pledged Assets;
(b) all rights, privileges, authority and powers of the Borrower as
owner or holder of the foregoing, including, but not limited to, all general
intangibles and contract rights related thereto;
(c) all securities, moneys or property representing dividends or
interest on any of the foregoing, or representing a distribution in respect of
the foregoing, or resulting from a split-up, revision, reclassification or other
like change of the foregoing or otherwise received in exchange therefor, or
otherwise in respect of, the foregoing;
(d) all documents and certificates, if any, representing or
evidencing the Borrower's interest in the foregoing;
(e) all distributions, cash, instruments and other property from
time to time received, receivable or otherwise distributed in respect of, or in
exchange for, the Borrower's interest in the foregoing;
(f) all "collateral", however defined, under any Other Agreements
and all other property securing indebtedness of the Borrower to Lender or any of
its Affiliates or Subsidiaries to the extent not applied to the satisfaction of
such indebtedness; and
(g) any other right, title, interest, privilege, authority and power
of the Borrower, as a holder of the foregoing, all whether now existing or
hereafter arising, and whether arising at law or in equity and any and all
Proceeds of any of the foregoing and all books and records of the Borrower
pertaining to any of the foregoing.
3.2 Notification to Trustee. Concurrently with the request to make the
Loan pursuant to Section 2.1 above, the Borrower shall have executed an
instruction letter in the form attached hereto as Exhibit F (the "Instruction
Letter") which (1) notifies each Trustee in connection with the related
Securitization Transaction of the pledge of the related Pledged Assets
hereunder, and (2) instructs the Trustee to pay all amounts payable to the
Borrower with respect to the Pledged Assets to an account specified by the
Lender; provided that no Instruction Letter shall be required with respect to
any Securitization Transaction for which the related Trustee is a party to the
executed Tri-Party Agreement.
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3.3 Further Assurances. The Borrower shall take any and all action
required by Lender in order that Lender has a valid, first priority, perfected
security interest in the Collateral (subject only to Permitted Liens), including
executing financing statements and assigning or endorsing Collateral to Lender.
Section 4. Representations and Warranties of the Borrower.
The Borrower hereby represents and warrants to Lender as of the date of
this Agreement and on the date that the Loan is made hereunder as follows:
4.1 Organization. It is a corporation duly incorporated and validly
existing in good standing under the laws of the State of its incorporation and
is duly qualified to do business and is in good standing in each jurisdiction in
which such qualification is necessary, except where the failure to be so
qualified or in good standing could not have a Material Adverse Effect.
4.2 Power and Authority. It has all requisite corporate power and
authority and has all material governmental licenses, authorizations, consents
and approvals necessary to own its assets and carry on its business as now being
conducted and to execute and deliver and perform its obligations under the Loan
Documents, including, to pledge the Pledged Assets as Collateral under this
Agreement and to execute the Note.
4.3 Authorization of Borrowing. All appropriate and necessary action has
been taken by it to authorize the execution and delivery of this Agreement and,
in the case of the Borrower, the Note, and to authorize the performance and
observance of the terms hereof and thereof.
4.4 Agreement Binding. This Agreement and the Note each constitutes the
legal, valid and binding obligation of the Borrower enforceable in accordance
with their terms except as may be limited by laws governing insolvency or
creditors' rights or by rules of equity. The execution, delivery and performance
of this Agreement, the Note and any other Loan Document will not violate any
provision of law, regulation, order or other governmental directive, or conflict
with, constitute a default under, or result in the breach of any provision of
any material agreement, ordinance, decree, bond, indenture, order or judgment to
which the Borrower is a party or by which it or its properties is or are bound.
4.5 Compliance with Law. It is conducting its business and operations in
material compliance with all applicable material laws, regulations, ordinances
and directives of governmental authorities. It has filed all tax returns
required to be filed and has paid all taxes in respect of the ownership of its
assets or the conduct of its operations prior to the date after which penalties
attach for failure to pay except (a) to the extent that the payment of such
taxes is being contested in good faith by it in appropriate proceedings and
adequate reserves have been provided for the payment thereof, or (b) with
respect to such returns and/or taxes which are not material in either nature or
amount such that any failure to file such returns or pay such taxes would not
materially and adversely affect its financial condition, operations, business or
prospects.
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4.6 Consents. All licenses, consents and approvals required from and all
registrations and filings required to be made with any governmental or other
public body or authority for the making and performance by the Borrower of this
Agreement and the Note have been obtained and are in effect.
4.7 Litigation. There is no action, suit or proceeding at law or in equity
by or before any court, governmental agency or authority or arbitral tribunal
now pending or, to the knowledge of the Borrower, threatened against or
affecting it which, if determined adversely, may have a Material Adverse Effect.
4.8 Financial Statements. The unaudited balance sheet of the Borrower (on
a consolidated basis) as at December 31, 1999, and the related statement of
income for the fiscal period ended on such date, in each case heretofore
furnished to the Lender, are complete and correct in all material respects and
fairly present the financial condition of the Borrower as at said date (subject
to normal year-end audit adjustments), all in accordance with GAAP applied on a
consistent basis. On said date, the Borrower had no material contingent
liabilities, liabilities for taxes, unusual or anticipated losses from any
unfavorable commitments, except as referred to or reflected in said balance
sheet as at said date. Since December 31, 1999, there has been no material
adverse change in the operations, condition (financial or otherwise) or business
of the Borrower from that set forth in said financial statements as at said
date.
4.9 Other Obligations. It is not in default in the performance, observance
or fulfillment of any obligation, covenant or condition in any agreement or
instrument to which it is a party or by which it is bound the result of which
could have a Material Adverse Effect.
4.10 Margin Regulations. It is not engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation G of the
Board of Governors of the Federal Reserve System). No part of the proceeds of
the Loan will be used to (a) purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock or
(b) pay the principal or interest of any securities issued by the Borrower in
connection with a Securitization Transaction.
4.11 Investment Company Act. It is not an "investment company" or a
company "controlled" by an investment company within the meaning of the
Investment Company Act of 1940, as amended.
4.12 Chief Executive Office. The chief executive office of the Borrower is
located in 00000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxxxx 00000 or such other
location in the United States as has been notified to Lender from time to time
pursuant to Section 5.21.
4.13 Reserved.
13
4.14 Full Disclosure. No representation or warranty made by or on behalf
of the Borrower contained herein and no information (written or oral),
certificate, financial statement or report furnished by or on behalf of the
Borrower hereunder, contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements herein or therein
contained, in light of the circumstances in which made, not misleading.
4.15 ERISA. Except as disclosed to the Lender, neither it nor any of its
respective Subsidiaries maintains any Plans, and it agrees to notify the Lender
in advance of forming any Plans. Neither it nor any of its Affiliates has any
obligations or liabilities with respect to any employee pension benefit plans or
Multiemployer Plans, nor have any such Persons had any obligations or
liabilities with respect to any such Plans during the five-year period prior to
the date this representation is made or deemed made. It and any of its
Affiliates will give notice if at any time it or any of its Affiliates has any
obligations or liabilities with respect to any employee pension benefit plan or
Multiemployer Plan. All Plans maintained by it or any of its Affiliates are in
substantial compliance with all applicable laws (including ERISA).
4.16 Representations of the Borrower with respect to the Pledged Assets.
(a) there are no agreements on the part of the Borrower to issue,
sell or distribute the Pledged Assets except as provided in the Other Agreements
or the U.S. Bank Repurchase Agreement.
(b) Borrower is the beneficial owner of, and has good title to, the
Pledged Assets, free of any and all Liens (other than Permitted Liens) or
options in favor of, or claims of, any other Person, except the security
interest created by this Agreement.
(c) The Pledged Assets, when pledged as Collateral hereunder, shall
be unencumbered, and this Agreement, together with the filing of a financing
statement on Form UCC-1 with the Secretary of State of the State of California
naming the Borrower as "debtor" and the Lender as "secured party" and describing
such Collateral as the "collateral", will create a valid first priority
perfected security interest in such Collateral (subject only to Permitted Liens)
in favor of Lender in accordance with its terms against all creditors of the
Borrower and any Persons purporting to purchase such Collateral from the
Borrower.
(d) Borrower has obtained from any and all concerned creditors, any
waivers, amendments, releases or acknowledgments necessary to create and perfect
in favor of the Lender the first priority security interests (subject only to
Permitted Liens) provided herein.
4.17 Representations as to each Pooling and Servicing Agreement. All of
the representations and warranties in any applicable Pooling and Servicing
Agreement are true and correct in all material respects as of the date hereof as
if made on such date and are incorporated herein by reference mutatis mutandis;
or any such breach thereof does not have a Material Adverse
14
Effect. Except as otherwise described in the Other Agreements, no Event of
Default has occurred and is continuing under any Pooling and Servicing
Agreement.
4.18 Survival. All representations and warranties made by the Borrower
herein, whether express or implied, shall survive until all Obligations have
been fully satisfied and discharged.
Section 5. Affirmative Covenants of the Borrower.
The Borrower hereby covenants to Lender that, until the payment in full
and final performance of all of its respective Obligations to Lender under the
Loan Documents, it shall perform the following obligations:
5.1 Reports and Notices.
(a) Within five Business Days after any officer of the Borrower has
knowledge of their occurrence, notice of each of the following events: (i) the
commencement of any action, suit, proceeding or arbitration against the Borrower
or any Subsidiary of the Borrower, or any material development in any action,
suit, proceeding or arbitration pending or threatened against the Borrower or
any such Subsidiary, (A) in which the aggregate uninsured amount claimed is more
than $1,000,000, (B) which would, if decided in a manner adverse to the Borrower
or such Subsidiary, result in a Material Adverse Effect or (C) which relates to
this Agreement or any document executed pursuant hereto or any transaction
financed or to be financed in whole or in part directly or indirectly with the
proceeds of the loans made pursuant hereto; (ii) any Default and what actions,
if any, the Borrower is taking or contemplates taking in regard thereto; (iii)
any notice under any Pooling and Servicing Agreement from any party thereunder
that it intends to put the Borrower on probation, declare an event of default
thereunder, or that it intends to terminate the servicer thereunder; (iv) notice
of any other Material Adverse Effect, including any material adverse development
which occurs in any litigation, arbitration or governmental investigation or
proceeding previously disclosed by the Borrower to the Lender; and
(b) From time to time, such other information regarding the
business, operations, affairs and financial condition of the Borrower as the
Lender may reasonably request.
5.2 Corporate Existence; Agency Status. The Borrower will (a) maintain its
corporate existence in good standing under the laws of the jurisdiction of its
incorporation and (b) its right to carry on its business and operations in each
jurisdiction in which the character of the properties owned or leased by it or
the business conducted by it makes such qualification necessary and the failure
to be in good standing would preclude the Borrower from enforcing its rights
with respect to any material assets or expose the Borrower to any material
liability.
5.3 Compliance with Laws, Taxes, etc. The Borrower will comply in all
material respects with all applicable laws, rules, regulations and orders
(including without limitation Regulations G, T, U and X of the Board of
Governors of the Federal Reserve System), the failure to be in compliance with
which would have a Material Adverse Effect on the financial condition of the
Borrower, such
15
compliance to include, without limitation, paying before the same become
delinquent all taxes, assessments and governmental charges imposed upon it or
upon its property except to the extent contested in good faith by appropriate
proceedings and for which any reserves required by GAAP have been established.
In the event the Borrower fails to satisfy its obligations under this Section
5.3 as to taxes, assessments and governmental charges, the Lender may but is not
obligated to satisfy such obligations in whole or in part and any payments made
and expenses incurred in doing so shall constitute Obligations, shall bear
interest at the rate set forth in Section 2.4 from the date incurred and shall
be paid or reimbursed by the Borrower on demand.
5.4 ERISA. The Borrower will maintain, and cause each ERISA Affiliate to
maintain, each Plan in compliance with all material applicable requirements of
ERISA and of the Code and with all applicable rulings and regulations issued
under the provisions of ERISA and of the Code and will not and not permit any of
the ERISA Affiliates to (a) engage in any transaction in connection with which
the Borrower or any of the ERISA Affiliates would be subject to either a civil
penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section
4975 of the Code, in each case in an amount exceeding $10,000, or (b) fail to
make full payment when due of all amounts which, under the provisions of any
Plan, the Borrower or any ERISA Affiliate is required to pay as contributions
thereto, or permit to exist any accumulated funding deficiency (as such term is
defined in Section 302 of ERISA and Section 412 of the Code), whether or not
waived with respect to any Plan in an aggregate amount exceeding $10,000. The
Borrower will not permit, nor allow any ERISA Affiliate to permit, any event to
occur or condition to exist which would permit any Plan to terminate under any
circumstances which would cause the Lien provided for in Section 4068 of ERISA
to attach to any assets of the Borrower or any Subsidiary of the Borrower; and
the Borrower will not permit, as of the most recent valuation date for any Plan
subject to Title IV of ERISA, the present value (determined on the basis of
reasonable assumptions employed by the independent actuary for such Plan and
previously furnished in writing to the Lender) of such Plan's projected benefit
obligations to exceed the fair market value of such Plan's assets. The Borrower
will not become, or permit any ERISA Affiliate to become, a party to any
Multiemployer Plan.
5.5 Assets and Insurance. The Borrower will maintain or require to
maintain in full force and effect (a) an adequate errors and omissions insurance
policy, (b) such other insurance coverage by financially sound and respectable
insurers, on all properties of a character usually insured by organizations
engaged in the same or similar business (including, without limitation, all real
property covered by Mortgages to the extent normally required by prudent
mortgagees) against loss or damage of a kind customarily insured against by such
organizations, (c) adequate public liability insurance against tort claims which
may be asserted against the Borrower, and (d) a mortgage bankers blanket bond
insurance policy in at least the amount customarily maintained by organizations
engaged in the same or similar business and under similar circumstances as the
Borrower.
5.6 Inspection, Visitation, etc. The Borrower will permit the Lender or
any designated representative of the Lender in writing, at the Lender's expense,
to visit and inspect any of the properties, corporate books and financial
records of the Borrower and discuss its affairs and finances
16
with the principal officers of the Borrower and its independent public
accountants, all at such times as the Lender shall reasonably request.
5.7 Further Assurances. The Borrower will take all such further actions
and execute all such further documents and instruments as the Lender may at any
time reasonably determine in its sole discretion to be necessary or advisable to
further carry out and consummate the transactions contemplated by the Loan
Documents and to perfect or protect the Liens granted to the Lender under any
Loan Document.
5.8 Reserved.
5.9 Liens. The Borrower will not, directly or indirectly, create, incur,
assume or permit to exist, any Lien (other than Permitted Liens) with respect to
any property now owned or hereafter acquired by the Borrower, or any income or
profits therefrom, except:
(a) the security interests granted to the Lender under the Loan
Documents;
(b) Liens in connection with deposits or pledges to secure payment
of workers' compensation, unemployment insurance, old age pensions or other
social security obligations, in the ordinary course of business of the Borrower;
(c) Liens for taxes, fees, assessments and governmental charges not
delinquent or which are being contested in good faith by appropriate proceedings
and for which appropriate reserves have been established in accordance with
GAAP;
(d) encumbrances consisting of zoning regulations, easements, rights
of way, survey exceptions and other similar restrictions on the use of real
property and minor irregularities in title thereto which do not materially
impair their use in the operation of its business;
(e) Liens on equipment arising under any capitalized lease
obligation or other purchase money Liens on equipment acquired after the signing
date;
(f) Liens incurred in connection with gestation repurchase
agreements or similar arrangements, including, without limitation, (i)
arrangements under which Borrower or its Subsidiaries are required to repurchase
Mortgage-backed Securities or Mortgage Loans from the Lender or other
counterparty reasonably satisfactory to the Lender, or (ii) credit facilities
structured as loan and security agreements; provided, that (x) such gestation
repurchase agreements or similar arrangements are not used to fund wet Mortgage
Loans, and (y) such gestation repurchase agreements or similar arrangements are
entered into in the ordinary course of business in contemplation of the
subsequent non-recourse sale of such Mortgage-backed Securities or Mortgage
Loans;
17
(g) a pledge of the stock of NC Residual II Corporation to Financial
Securities Assurance Corporation;
(h) Liens incurred in connection with the U.S. Bank Repurchase
Agreement; and
(i) Liens incurred in connection with that certain Fourth Amended
and Restated Credit Agreement, dated as of May 26, 1999, among the Borrower,
U.S. Bank National Association and the lender parties thereto.
5.10 Investments. The Borrower will not, directly or indirectly, make or
own any Investment, except Investments in (a) marketable direct obligations
issued or unconditionally guaranteed by the United States Government or issued
by any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition
thereof, (b) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.,
(c) commercial paper maturing no more than one year from the date of creation
thereof and, at the time of acquisition, having the highest rating obtainable
from either Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.,
(d) Mortgage Loans originated or acquired by the Borrower in the ordinary course
of the Borrower's business, (e) certificates of deposits or bankers acceptances
issued by any commercial bank organized under the laws of the United States or
any State thereof and having a combined capital and surplus of at least
$500,000,000, or by United States offices of foreign banks having the highest
rating obtainable from a nationally recognized rating agency, in each case
maturing within one year from the date of acquisition thereof, (f) investments
in mutual funds that invest substantially all of their assets in Investments of
the types described in subsections (a), (b), (c) and (e) of this Section 5.10,
(g) the Capital Stock of any Subsidiary of the Borrower (subject to the
limitations set forth in Sections 5.13 and 5.16).
5.11 Guarantees. The Borrower will not, directly or indirectly, create or
become or be liable with respect to any Guarantee other than the Guarantees
existing on the date hereof.
5.12 Net Worth. The Borrower will at all times maintain Tangible Net Worth
of not less than the greater of (i) $40,000,000 measured on a monthly basis (as
at the end of each month) and (ii) 85% of Tangible Net Worth at the end of the
most recently completed fiscal year plus (a) 90% of capital contributions made
during such fiscal year plus (b) 50% of positive year to date net income.
5.13 Restriction on Fundamental Changes. The Borrower will not engage in
any business activities or operations substantially different from or unrelated
to those in which the Borrower were engaged on the date of this Agreement, enter
into any transaction of merger or consolidation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, any of its assets, whether now owned or hereafter acquired, or
acquire by purchase or otherwise all or substantially
18
all the business or property of, or stock or other evidence of beneficial
ownership of, any Person, except:
(a) the Borrower may sell or otherwise dispose of property in the
ordinary course of business, provided such sales do not include all or
substantially all of the assets of the Borrower; and
(b) the Borrower and its Subsidiaries may engage in any business
involving the origination, acquisition, service, sale or securitization of
Mortgage Loans or other consumer obligations.
5.14 Restricted Payments. The Borrower will not make any Restricted
Payments.
5.15 Reserved.
5.16 Subsidiaries. The Borrower will not create or acquire any
Subsidiaries, other than Subsidiaries engaged solely in any business involving
the origination, acquisition, service, sale or securitization of Mortgage Loans
or other consumer obligations.
5.17 Affiliate Transactions. The Borrower will not enter into any
transaction with an Affiliate of the Borrower, other than:
(a) transactions in the ordinary course of business on terms no less
favorable to the Borrower than those that would be obtained in an
arm's-length transaction;
(b) intercompany indebtedness of New Century Financial Corporation
to the Borrower or NC Capital Corporation in an aggregate amount not to
exceed $1,000,000;
(c) intercompany indebtedness between the Borrower and NC Capital
Corporation incurred in the ordinary course of business;
(d) guarantees by New Century Financial Corporation of indebtedness
of the Borrower secured by liens on equipment under an capitalized lease
obligation or other purchase money liens on equipment in an amount not to
exceed $10,000,000;
(e) guarantees by New Century Financial Corporation of the
Borrower's obligations under gestation repurchase agreements or similar
arrangements;
(f) guarantees by the Borrower of obligations in respect of (i)
Junior Securitization Interests and (ii) gestation repurchase agreements;
(g) transfers by the Borrower of real estate owned with a book value
not to exceed $6,000,000 at any time to New Century REO Corp.;
19
(h) transfers by the Borrower to NC Capital Corporation of (i)
mortgage loans, (ii) Junior Securitization Interests and (iii) fixed
assets used in the operation of NC Capital Corporation; and
(i) transfers by the Borrower and NC Capital Corporation of Junior
Securitization Interests to NC Residual Corporation or NC Residual II
Corporation.
5.18 Escrow Imbalances. The Borrower will, no later than five (5) Business
Days after learning (from any source) of any material imbalance in any escrow
account, fully and completely correct and eliminate such imbalance.
5.19 Inconsistent Agreements. The Borrower will not, directly or
indirectly, enter into any agreement containing any provision which would be
violated or breached by the borrowing by the Borrower hereunder or by the
performance by the Borrower of its obligations hereunder or under any other Loan
Document.
5.20 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any of such covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitations of, another covenant shall not avoid
the occurrence of a Default if such action is taken or condition exists.
5.21 Notice of Change of Chief Executive Office. It will provide Lender
with not less than 30 days prior written notice of any change in its chief
executive office to permit Lender to make any additional filings necessary to
continue Lender's perfected security interest in the Collateral.
5.22 Covenants of the Borrower with respect to the Pledged Assets.
(a) The Borrower shall promptly deliver to the Lender (i) any report
received by or required to be delivered by any Person pursuant to the Pooling
and Servicing Agreement at the same time as required thereunder, including,
without limitation, any trustee's report and any reports delivered to related
surety companies; (ii) any notice of transfer of servicing; and (iii) any other
such document or information as the Lender may reasonably request from time to
time with respect to the Pledged Assets.
(b) The Borrower shall permit the Lender to inspect its books and
records relating to the Mortgage Loans, any Securitization Transaction, the
Pledged Assets and other matters relating to the transactions contemplated
hereby, upon reasonable prior notice and during normal business hours.
(c) At any time and from time to time, upon the written request of
Lender, and at the sole expense of the Borrower, the Borrower will promptly and
duly execute and deliver such further instruments and documents and take such
further actions as Lender may reasonably request for the purposes of obtaining
or preserving the full benefits of this Agreement and of the rights and
20
powers herein granted. If any amount payable under or in connection with any of
the Collateral shall be or become evidenced by any instrument (including any
certificated security or promissory note) or chattel paper (in each case as
defined in the UCC), such instrument or chattel paper shall be immediately
delivered to Lender, duly endorsed in a manner satisfactory to Lender, to be
held as Collateral pursuant to this Agreement. Prior to such delivery, the
Borrower shall hold all such instruments or chattel paper in trust for Lender,
and shall not commingle any of the foregoing with any assets of the Borrower.
(d) The Borrower shall pay, and save Lender harmless from, any and
all liabilities with respect to, or resulting from any delay in paying, any and
all stamp, excise, sales or other similar taxes which may be payable or
determined to be payable with respect to any of the Collateral or in connection
with any of the transactions contemplated by this Agreement.
Section 6. Payments.
Until the Loan is repaid in full, the Lender shall be entitled to receive
all cash payments and distributions paid in respect of the Pledged Assets. If
any sums of money or property so paid or distributed in respect of the Pledged
Assets shall be received by the Borrower, (A) the Borrower shall hold such
payments in trust, for the benefit of the Lender, (B) the Borrower shall either
(i) deposit any such payments in a custodial account or collection account as
required under the related Pooling and Servicing Agreement, or (ii) segregate
such funds from other funds of the Borrower, and (C) the Borrower shall remit to
the Lender the full amount of each such payment on the first Business Day of the
week in which such payment is received or, if sooner, on the Maturity Date.
Section 7. Rights of Lender as Pledgee.
7.1 Until the Loan is repaid in full, if the Lender shall receive any and
all cash dividends or distributions paid in respect of the Pledged Assets, the
Lender shall apply such amounts in accordance with Section 2.7(b) hereof. All
Proceeds while held by Lender (or by the Borrower in trust for Lender) shall
continue to be held as collateral security for all the Obligations and shall not
constitute payment thereof until applied as provided in Section 9.3 hereof.
7.2 If an Event of Default shall occur and be continuing,
(a) Lender shall have the right to make application of any cash
dividends or distributions paid in respect of the Pledged Assets to the
Obligations in such order as is provided in Section 9.3 hereof, and
(b) Lender shall have the right to notify any Person obligated on
any Collateral of the rights of Lender hereunder, enter into any extension,
settlement or compromise agreement relating to or affecting the Collateral,
receive payment or performance of any insurance claims, claims for breach of
warranty or any other claims concerning the Collateral, all without liability
except to account for property actually received by it, but Lender shall have no
duty to the Borrower to
21
exercise any such right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing.
Section 8. Conditions Precedent.
8.1 Conditions Precedent to this Agreement. The obligations of Lender to
extend the Loan hereunder are subject to the receipt by Lender, concurrently
with the signing of this Agreement, in form and substance satisfactory to
Lender, of the following:
(a) Evidence of the authority of the persons executing this
Agreement, the Note and any other documents contemplated herein and therein,
together with specimen signatures of such persons;
(b) A certified copy of the Borrower's Articles of Incorporation and
By-Laws and a good standing certificate from its State of incorporation;
(c) Certified copies of all necessary resolutions of the Board of
Directors of the Borrower authorizing the execution and delivery and performance
under this Agreement and the Note;
(d) The duly executed, original Note;
(e) A certificate, as of the date of signing of the Agreement, by
the President, a Vice President or the Treasurer of the Borrower certifying that
the representations and warranties contained in Section 4 hereof are true and
correct, that the Borrower is in compliance with the covenants set forth in
Section 5 and that no Default or Event of Default has occurred and is
continuing;
(f) The following opinions of counsel in form and substance
reasonably satisfactory to Lender's counsel:
(i) Standard corporate opinions of the Borrower regarding due
authorization, execution, consents, material litigation and noncontravention,
which opinions may be rendered by in-house counsel;
(ii) Enforceability of the Agreement and the Note;
(iii) Collateral perfection opinion relating to the pledge of
Collateral from the Borrower to Lender; and
(g) Such other documents, certificates or financial or other
information as Lender may reasonably request.
22
8.2 Conditions Precedent to the Loan. In addition to each of the
conditions precedent set forth in Section 8.1 being met, the obligations of
Lender to extend the Loan hereunder shall be subject to the following
conditions:
(a) There shall not have occurred and be continuing any Event of
Default and the Borrower shall be in compliance in all material respects with
all of its respective covenants and obligations under this Agreement, and the
Borrower shall be in compliance in all material respects with all of its
covenants and obligations under the Note;
(b) Lender shall have received the Notice of Borrowing described in
Section 2.2(a);
(c) The following documents shall have been delivered to the Lender
or Bailee with respect to the Pledged Assets: (i) the original documents
described in Section 3.2 hereof, (ii) a copy of the executed Pooling and
Servicing Agreement governing the Pledged Assets and/or any supplements thereto,
and the offering documents related to the Pledged Assets, each certified by the
Borrower or the Trustee or master servicer under such Pooling and Servicing
Agreement as a true, correct and complete copy of the original, and all
ancillary documents required to be delivered to the certificateholders under
such Pooling and Servicing Agreement, and (iii) copies of distribution
statements delivered to the Trustee for two months prior to the month in which
the Request for Borrowing is made, if any, certified by the applicable servicer
or master servicer as true and correct;
(d) Financing statements on Form UCC-1 naming the Borrower as
"debtor" and Lender as "secured party" and describing the Collateral as
"collateral" thereunder, to be filed in each jurisdiction in which it is
necessary to file to perfect a security interest in Collateral;
(e) U.S. Bank National Association shall have consented in writing
to the Lender's subordinate interest in the Other Assets; and
(f) With respect to the collections received by the Borrower on the
underlying Mortgage Loans, U.S. Bank National Association shall have agreed to
set up a tri-party agreement or similar agreement (the "Tri-Party Agreement")
whereby, upon the Borrower's failure to make a weekly remittance as required
under Section 6 herein, the Lender would have control over the account into
which such collections are deposited, which agreement shall be evidenced by a
written agreement with terms mutually acceptable to the Lender, the Borrower and
U.S. Bank National Association.
Section 9. Default.
9.1 Events of Default. Each of the following events and occurrences shall
constitute an Event of Default under this Agreement if not cured within three
(3) Business Days of their occurrence (provided that the events described in
paragraphs (a), (f), (g) and (h) shall have no cure period):
23
(a) The Borrower shall fail to make payment to Lender of (i)
principal or interest when due of any amount that the Borrower is obligated to
pay under this Agreement or the Note or (ii) any other amount payable by it
hereunder or under any other Loan Document.
(b) The earlier to occur of (i) a Responsible Officer having
knowledge of such failure to perform or observe or (ii) written notice thereof
from Lender of the Borrower failing to perform or observe any material provision
of this Agreement.
(c) The Borrower shall fail to perform or observe any other
provision of this Agreement or the Note, within 15 days following the earlier of
(i) a Responsible Officer having knowledge of such failure to perform or observe
or (ii) written notice thereof from Lender.
(d) The Borrower 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 for borrowed money, which
failure to pay constitutes a default or event of default under any such
agreement or indebtedness, or the Borrower 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 $5,000,000 or such lesser
amount as shall be included in a cross-acceleration provision of any such
agreement or instrument.
(e) Any representation, warranty or certification made or deemed
made by the Borrower herein or by the Borrower in any other Loan Document or any
certificate furnished to the Lender pursuant to the provisions thereof or in
connection with a Securitization Transaction, shall prove to have been false or
misleading in any material respect as of the time made or furnished.
(f) The Collateral or any other assets of the Borrower or any
material Affiliate thereof are attached, seized, levied upon or subjected to a
writ or distress warrant, or come within the possession of any receiver,
trustee, custodian or assignee for the benefit of creditors and the same is not
dissolved or dismissed within sixty (60) days thereafter; an application is made
by any Person for the appointment of a receiver, trustee, or custodian for the
Collateral or any assets of a member of the Borrower or any material Affiliate
thereof and the same is not dismissed within sixty (60) days after the
application thereof, or the Borrower or any material Affiliate thereof shall
have concealed, removed or permitted to be concealed or removed, any part of its
property, with intent to hinder, delay or defraud its creditors or made or
suffered a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance or other similar law.
(g) An application is made by the Borrower or any material Affiliate
thereof or for the appointment of a receiver, trustee or custodian for the
Collateral or any other assets of the Borrower or any material Affiliate
thereof; a petition under any section or chapter of the Bankruptcy UCC or any
similar federal or state law or regulation shall be filed by the Borrower or any
material Affiliate thereof or the Borrower or any material Affiliate thereof
shall make an assignment for the
24
benefit of its creditors, or any case or proceeding shall be filed by the
Borrower or any material Affiliate thereof for its dissolution, liquidation, or
termination, by the Borrower or any material Affiliate thereof, or the Borrower
or any material Affiliate thereof ceases to conduct a material part of its
current business.
(h) The Borrower or any material Affiliate thereof is enjoined,
restrained or in any way prevented by court order from conducting all or any
material part of its business affairs, or a petition under any section or
chapter of the Bankruptcy Code or any similar federal or state law or regulation
is filed against the Borrower or any Affiliate thereof, or any case or
proceeding is filed against the Borrower or any Affiliate thereof, for its
dissolution or liquidation, and such injunction, restraint, petition, case or
proceeding is not dismissed within sixty (60) days after the entry of filing
thereof.
(i) The Borrower or any Affiliate thereof becomes insolvent or
admits in writing to its inability to pay its debts as they mature.
(j) An unaudited financial statement of the Borrower contains a
material, adverse qualification with respect to the Borrower, the Pledged Assets
or the Collateral.
(k) A "default," "event of default" or "event of termination,"
however defined, shall occur under any Other Agreement, which has not been
waived by Lender or its Affiliate, as applicable.
(l) The Borrower shall grant, or suffer to exist, any Lien on any
Collateral except the Liens contemplated hereby; or the Liens contemplated
hereby shall cease to be first priority perfected Liens (subject only to
Permitted Liens) on the Collateral in favor of the Lender or shall be Liens in
favor of any Person other than the Lender (except with respect to Permitted
Liens).
(m) The aggregate outstanding repurchase price for all assets
subject to transactions under the U.S. Bank Repurchase Agreement exceeds
$16,000,000.
9.2 Acceleration. If not cured within the applicable cure period, if any,
upon the continuance of an Event of Default, Lender may, by notice to the
Borrower (which notice shall be deemed given automatically upon the occurrence
of an Event of Default referred to in paragraph (a)(i), (e), (f), (g), (h) or
(i)), (A) declare the obligations of Lender hereunder to be terminated,
whereupon those obligations shall terminate, and (B) declare immediately due and
payable all amounts payable hereunder and under the Note by the Borrower that
would otherwise be due after the date specified in the notice (or the date such
notice is deemed given), whereupon all those amounts shall become immediately
due and payable, all without further diligence, presentment, demand of payment,
protest or notice of any kind, all of which are expressly waived by the
Borrower. If any Event of Default shall occur and be continuing, Lender may take
any lawful action to protect and enforce its rights by an action at law,
including selling the Collateral, suit in equity or other appropriate
proceedings, whether for the specific performance of any agreement contained
herein,
25
or for an injunction against a violation of any of the terms hereof, or in aid
of the exercise of any power granted hereby or by law. If Lender opts to sell
the Collateral as one of its remedies upon an Event of Default, the Borrower
shall remain liable for any remaining deficiency upon applying the proceeds of
such sale against any and all amounts owed by the Borrower to Lender hereunder.
9.3 Remedies on Default.
(a) If an Event of Default shall have occurred and be continuing, at
any time at Lender's election, Lender may apply all or any part of Proceeds of
the Collateral in payment of the Obligations in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses
incurred by Lender in connection with the enforcement of 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 Lender of any right or remedy under this
Agreement, the Note or any other Loan Document;
SECOND, to the satisfaction of all other Obligations; and
THIRD, any excess to the Borrower or to whomsoever may be
lawfully entitled to receive the same.
(b) If an Event of Default shall occur and be continuing, Lender may
exercise, in addition to all other rights and remedies granted in this Agreement
and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the UCC. Without
limiting the generality of the foregoing, to the extent permitted by law,
Lender, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Borrower or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived to the extent
permitted by law), may in such circumstances forthwith collect, receive,
appropriate and realize upon the Collateral, or any part thereof, and/or may
forthwith sell, assign, give option or options to purchase or otherwise dispose
of and deliver the Collateral or any part thereof (or contract to do any of the
foregoing), in one or more parcels at public or private sale or sales, in the
over-the-counter market, at any exchange, broker's board or office of Lender or
elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without
assumption of any credit risk. Lender shall have the right upon any such public
sale or sales, and, to the extent permitted by law, upon any such private sale
or sales, to purchase the whole or any part of the Collateral so sold, free of
any right or equity of redemption in the Borrower, which right or equity is
hereby waived and released. Lender shall apply any Proceeds from time to time
held by it and the proceeds of any such collection, recovery, receipt,
appropriation, realization or sale, after deducting all reasonable costs and
expenses of every kind incurred in respect thereof or incidental to the care or
safekeeping of any of the Collateral or in any way relating to the Collateral or
the rights of Lender hereunder, including, without limitation,
26
reasonable attorneys' fees and expenses of counsel to Lender, to the payment in
whole or in part of the Obligations, in the order of priority specified in
Section 9.3(a) hereof, and only after such application and after the payment by
Lender of any other amount required by any provision of law, including, without
limitation, Section 9-504(1)(c) of the UCC, need Lender account for the surplus,
if any, to the Borrower. To the extent permitted by applicable law, the Borrower
waives all claims, damages and demands it may acquire against Lender arising out
of the exercise by them of any rights hereunder, other than any such claims,
damages and demands that may arise from its gross negligence or willful
misconduct. If any notice of a proposed sale or other disposition of Collateral
shall be required by law, to the extent permitted by law such notice shall be
deemed reasonable and proper if given at least 10 days before such sale or other
disposition. The Borrower shall remain liable for any deficiency if the proceeds
of any sale or other disposition of Collateral are insufficient to pay the
Obligations and the fees and expenses of any attorneys employed by Lender to
collect such deficiency.
(c) Nothing in this Agreement shall waive, modify or limit the
rights of the Lender under the Tri-Party Agreement, all such rights being hereby
reserved.
Section 10. Private Sales, Etc.
The Borrower recognizes that Lender may be unable to effect a public
sale of any or all of the Pledged Assets, and may be compelled to resort to one
or more private sales thereof. The Borrower acknowledges and agrees that any
such private sale may result in prices and other terms less favorable than if
such sale were a public sale and, notwithstanding such circumstances, agrees
that any such private sale shall be deemed to have been made in a commercially
reasonable manner.
Section 11. Tri-Party Agreement.
The Lender shall have additional rights under the Tri-Party
Agreement, including the ability to instructs each Trustee to comply with any
instruction received by it from the Lender with respect to the deposits relating
to the Collateral, without any other or further instructions from the Borrower.
Such rights shall be in addition to any rights of the Lender hereunder.
Section 12. Reserved.
Section 13. Duty of Lender as Pledgee.
Neither Lender nor any of its respective directors, officers, employees or
agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Borrower or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof.
Section 14. Reserved.
27
Section 15. Miscellaneous.
15.1 Expenses.
The Borrower agrees to hold the Lender and each of its officers,
directors, agents and employees (each, an "Indemnified Party") harmless from and
indemnify each Indemnified Party against all liabilities, losses, damages,
judgments, costs and expenses of any kind which may be imposed on, incurred by
or asserted against such Indemnified Party in any suit, action, claim or
proceeding relating to or arising out of this Loan Agreement, the Note, any
other Loan Document or any transaction contemplated hereby or thereby, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, this Loan Agreement, the Note, any other Loan Document or any
transaction contemplated hereby or thereby, to the extent that, in each case, it
results from anything other than the Lender's gross negligence or willful
misconduct. In any suit, proceeding or action brought by the Lender for any sum
owing under any Pledged Assets, or to enforce any provisions thereof, the
Borrower will save, indemnify and hold the Lender harmless from and against all
expense, loss or damage suffered by reason of any defense, set-off,
counterclaim, recoupment or reduction or liability whatsoever of the account
debtor or obligor thereunder, arising out of a breach by the Borrower of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or obligor or
its successors from the Borrower. The Borrower also agrees to reimburse the
Lender as and when billed by the Lender for all the Lender's costs and expenses
incurred in connection with the enforcement or the preservation of the Lender's
rights under this Loan Agreement, the Note, any other Loan Document or any
transaction contemplated hereby or thereby, including without limitation the
fees and disbursements of its counsel (including all reasonable fees and
disbursements incurred in any action or proceeding between the Borrower and the
Lender or between the Lender and any third party relating hereto). The Borrower
hereby acknowledges that, notwithstanding the fact that the Note is secured by
the Collateral, the obligation of the Borrower under the Note is a recourse
obligation of the Borrower.
15.2 Set-off. In addition to any rights now or hereafter granted under
applicable law and not by way of limitation of any such rights, during the
continuance of any Event of Default hereunder, Lender is hereby authorized at
any time and from time to time, without notice to the Borrower, or to any other
person or entity, any such notice being hereby expressly waived, to set-off
against any obligation owing by Lender or any Affiliate of Lender to the
Borrower or any Affiliate thereof, or against any funds or other property of the
Borrower or any Affiliate thereof held by or otherwise in the possession of
Lender or any Affiliate of Lender, the obligations and liabilities of the
Borrower to Lender under this Agreement or the Note, irrespective of whether or
not Lender shall have made any demand hereunder or under the Note.
15.3 Amendments. No provision of this Agreement may be amended,
supplemented, modified or waived unless the same shall be in writing signed by
Lender and the Borrower.
28
15.4 Waiver of Notices, etc. The Borrower hereby expressly waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of its Obligations hereunder or under the Note, and any requirement that
Lender protect, secure, perfect or insure any security interest or lien or any
property subject thereto or exhaust any right or take any action against the
Borrower or any other person or entity or any collateral, and all other notices,
demands and protests, and all other formalities of every kind in connection with
the enforcement of the Obligations hereunder or under the Note.
15.5 Waiver; Cumulative Rights. No failure on the part of Lender to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, power or privilege under this Agreement or the Note shall operate as
a waiver thereof, nor shall any single or partial exercise of any right, power
or privilege under this Agreement or the Note preclude any other or further
exercise thereof or the exercise of any other right, power, or privilege. The
remedies provided herein are cumulative and not exclusive of any remedies
provided by law.
15.6 Binding Effect. This Agreement shall be binding upon and shall be
enforceable by the Borrower and Lender and their respective successors and
permitted assigns.
15.7 Survival. The provisions of Section 15.1 shall survive the payment in
full of the Loan and all other amounts payable under this Agreement and the
Note.
15.8 GOVERNING LAW, ETC.; WAIVER OF TRIAL BY JURY.
(A) THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THE BORROWER HEREBY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW
YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE BORROWER
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(B) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO ALSO WAIVES THE RIGHT IN ANY
SUCH LITIGATION TO IMPOSE COUNTERCLAIMS OR SET-OFFS OF ANY KIND OR DESCRIPTION
UNLESS SUCH COUNTERCLAIM OR SET-
29
OFF IS COMPULSORY OR MANDATORY IN NATURE UNDER THE NEW YORK CIVIL PRACTICE LAW
AND RULES.
15.9 Notice. Any notice hereunder shall be in writing and shall be
personally delivered, transmitted by postage prepaid registered or certified
mail, by facsimile, telegram or cable to the parties as follows:
To the Lender: Ocwen Federal Bank FSB
The Forum, Suite 1002
1675 Palm Beach Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Secretary
Facsimile Number: (000) 000-0000
Confirmation Number: (000) 000-0000
To the Borrower: New Century Mortgage Corporation
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxxx
Facsimile Number: (000) 000-0000
Confirmation Number: (000) 000-0000
All notices and other communications shall be deemed to have been duly
given on the date of receipt if delivered personally; the date five (5) calendar
days after posting if transmitted by mail; or in the case of a facsimile,
telegram or cable, at the time sent. Any party hereto may change its address for
purposes hereof by written notice to the other.
15.10 Severability. If any one or more of the provisions contained in this
Agreement or any document executed in connection herewith shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired.
15.11 Counterparts. This Agreement may be signed in any number of
counterparts which, taken together, shall constitute a full and original
agreement for all purposes.
15.12 Assignability.
(a) The Borrower may not assign any of its rights or obligations
hereunder or under the Note without the prior written consent of the Lender. The
Lender may assign or transfer to any bank or other financial institution that
makes or invests in loans all or any of its rights or obligations under this
Loan Agreement and the other Loan Documents.
30
(b) The Lender may, in accordance with applicable law, at any time
sell to one or more lenders or other entities ("Participants") participating
interests in any Advance, the Note, its commitment to make Advances, or any
other interest of the Lender hereunder and under the other Loan Documents. In
the event of any such sale by the Lender of participating interests to a
Participant, the Lender's obligations under this Loan Agreement to the Borrower
shall remain unchanged, the Lender shall remain solely responsible for the
performance thereof, the Lender shall remain the holder of the Note for all
purposes under this Loan Agreement and the other Loan Documents, and the
Borrower and the Lender shall continue to deal solely and directly with the
Lender in connection with the Lender's rights and obligations under this Loan
Agreement and the other Loan Documents. The Borrower agrees that if amounts
outstanding under this Loan Agreement and the Note are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall be deemed to have the right of
set-off in respect of its participating interest in amounts owing under this
Loan Agreement and the Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this Loan
Agreement or the Note; provided, that such Participant shall only be entitled to
such right of set-off if it shall have agreed in the agreement pursuant to which
it shall have acquired its participating interest to share with the Lender the
proceeds thereof. The Lender also agrees that each Participant shall be entitled
to the benefits of Section 15.1 with respect to its participation in the Loan
outstanding from time to time; provided, that the Lender and all Participants
shall be entitled to receive no greater amount in the aggregate pursuant to such
Sections than the Lender would have been entitled to receive had no such
transfer occurred.
(c) The Lender may furnish any information concerning the Borrower
or any of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
(d) The Borrower agrees to cooperate with the Lender in connection
with any such assignment and/or participation, to execute and deliver such
replacement notes, and to enter into such restatements of, and amendments,
supplements and other modifications to, this Loan Agreement and the other Loan
Documents in order to give effect to such assignment and/or participation. The
Borrower further agrees to furnish to any Participant identified by the Lender
to the Borrower copies of all reports and certificates to be delivered by the
Borrower to the Lender hereunder, as and when delivered to the Lender.
15.13 Hypothecation or Pledge of Collateral. Nothing in this Agreement
shall preclude the Lender from engaging in repurchase transactions with the
Collateral or otherwise pledging, repledging, transferring, hypothecating, or
rehypothecating the Collateral.
[Signature Page Follows]
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first written
above.
OCWEN FEDERAL BANK FSB, as Lender and Pledgee
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: XXXXXXX XXXXXXX
Title: Vice President
NEW CENTURY MORTGAGE CORPORATION
as Borrower and Pledgor
By:
-----------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date first written
above.
OCWEN FEDERAL BANK FSB, as Lender and Pledgee
By:
-----------------------------------------
Name:
Title:
NEW CENTURY MORTGAGE CORPORATION
as Borrower and Pledgor
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: EVP
EXHIBIT A
[FORM OF PROMISSORY NOTE]
$30,000,000 February 28, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, NEW CENTURY MORTGAGE CORPORATION, a California
corporation (the "Borrower"), hereby promises to pay to the order of OCWEN
FEDERAL BANK FSB, a federal savings bank (the "Lender"), at the principal office
of the Lender at The Forum, Suite 1002, 1675 Xxxx Xxxxx Xxxxx Xxxxxxxxx, Xxxx
Xxxx Xxxxx, Xxxxxxx 00000, in lawful money of the United States, and in
immediately available funds, the principal sum of THIRTY MILLION DOLLARS
($30,000,000) (or such lesser amount as shall equal the unpaid principal amount
of the Loan made by the Lender to the Borrower under the Facility Agreement as
defined below), on the date and in the principal amount provided in the Facility
Agreement, and to pay interest on the unpaid principal amount of such Loan, at
such office, in like money and funds, for the period commencing on the date of
such Loan until such Loan shall be paid in full, at the rates per annum and on
the dates provided in the Facility Agreement.
The date, amount and interest rate of the Loan made by the Lender to
the Borrower, and each payment made on account of the principal and interest
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof; provided, that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the Borrower to
make a payment when due of any amount owing under the Facility Agreement or
hereunder in respect of the Loan made by the Lender.
This Note is the Note referred to in Receivables Financing Facility
Agreement dated as of February 28, 2001 (as amended, supplemented or otherwise
modified and in effect from time to time, the "Facility Agreement") between the
Borrower and the Lender, and evidence the Loan made by the Lender thereunder.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Facility Agreement.
The Borrower agrees to pay all the Lender's costs of collection and
enforcement (including reasonable attorneys' fees and disbursements of Lender's
counsel) in respect of this Note when incurred, including, without limitation,
reasonable attorneys' fees through appellate proceedings.
Notwithstanding the pledge of the Collateral, the Borrower hereby
acknowledges, admits and agrees that the Borrower's obligations under this Note
are recourse obligations of the Borrower to which the Borrower pledges its full
faith and credit.
A-1
The Borrower, and any indorsers or guarantors hereof, (a) severally
waive diligence, presentment, protest and demand and also notice of protest,
demand, dishonor and nonpayments of this Note, (b) expressly agree that this
Note, or any payment hereunder, may be extended from time to time, and consent
to the acceptance of further Collateral, the release of any Collateral for this
Note, the release of any party primarily or secondarily liable hereon, and (c)
expressly agree that it will not be necessary for the Lender, in order to
enforce payment of this Note, to first institute or exhaust the Lender's
remedies against the Borrower or any other party liable hereon or against any
Collateral for this Note. No extension of time for the payment of this Note, or
any installment hereof, made by agreement by the Lender with any person now or
hereafter liable for the payment of this Note, shall affect the liability under
this Note of the Borrower, even if the Borrower is not a party to such
agreement; provided, however, that the Lender and the Borrower, by written
agreement between them, may affect the liability of the Borrower.
Any reference herein to the Lender shall be deemed to include and
apply to every subsequent holder of this Note. Reference is made to the Facility
Agreement for provisions concerning optional and mandatory prepayments,
Collateral, acceleration and other material terms affecting this Note.
Any enforcement action relating to this Note may be brought by
motion for summary judgment in lieu of a complaint pursuant to Section 3213 of
the New York Civil Practice Law and Rules. The Borrower hereby submits to New
York jurisdiction with respect to any action brought with respect to this Note
and waives any right with respect to the doctrine of forum non conveniens with
respect to such transactions.
A-2
This Note shall be governed by and construed under the laws of the
State of New York (without reference to choice of law doctrine but with
reference to Section 5-1401 of the New York General Obligations Law, which by
its terms applies to this Note) whose laws the Borrower expressly elects to
apply to this Note. The Borrower agrees that any action or proceeding brought to
enforce or arising out of this Note may be commenced in the Supreme Court of the
State of New York, Borough of Manhattan, or in the District Court of the United
States for the Southern District of New York.
NEW CENTURY MORTGAGE CORPORATION
By:
--------------------------------
Name:
Title:
SCHEDULE OF THE LOAN
This Note evidences the Loan made under the within-described
Facility Agreement to the Borrower, on the dates, in the principal amounts and
bearing interest at the rates set forth below, and subject to the payments and
prepayments of principal set forth below:
Principal Interest Amount Paid Unpaid Notation
Date Made Amount of Loan Rate or Prepaid Principal Made by
Amount
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A-4
EXHIBIT B
Notice of Borrowing
(date)
Ocwen Federal Bank FSB
The Forum, Suite 1002
1675 Palm Beach Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
In accordance with Section 2.2(a) of that certain Receivables
Financing Facility Agreement, dated as of February 28, 2001 (the "Agreement"),
by and among Ocwen Federal Bank FSB, as Lender and Pledgee and the undersigned,
as Borrower and Pledgor, the undersigned hereby requests a Loan on the date
hereof in an amount equal to $________.
In connection with such Loan, we are pledging the Pledged Assets
listed on Annex I hereto as collateral security therefor.
Very truly yours,
NEW CENTURY MORTGAGE CORPORATION,
Borrower
By:
---------------------------------
Name:
Title:
Annex I to
Exhibit B
PLEDGED ASSETS
[to be added]
B-2
EXHIBIT C
SECURITIZATION TRANSACTIONS
1. Pooling and Servicing Agreement, dated as of February 1, 1997, among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, and U.S. Bank Trust National
Association, f/k/a First Trust National Association, as Trustee for New
Century Asset-Backed Floating Rate Certificates, Series 1997-NC1.
2. Pooling and Servicing Agreement, dated as of May 1, 1997, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, and U.S. Bank Trust National Association,
f/k/a First Trust National Association, as Trustee for New Century
Asset-Backed Floating Rate Certificates, Series 1997-NC2.
3. Pooling and Servicing Agreement, dated as of June 1, 1997, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, and U.S. Bank Trust National Association,
f/k/a First Trust National Association, as Trustee for New Century
Asset-Backed Floating Rate Certificates, Series 1997-NC3.
4. Pooling and Servicing Agreement, dated as of August 1, 1997, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, and U.S. Bank Trust National Association,
f/k/a First Trust National Association, as Trustee for New Century
Asset-Backed Floating Rate Certificates, Series 1997-NC4, as amended by
Amendment No. 1, dated as of May 15, 1998, among Salomon Brothers Mortgage
Securities VII, Inc., as Depositor, New Century Mortgage Corporation, as
Master Servicer, and U.S. Bank Trust National Association, as Trustee.
5. Pooling and Servicing Agreement, dated as of September 1, 1997, among
Financial Asset Securities Corp., as Depositor, New Century Mortgage
Corporation, as Seller and Master Servicer, and U.S. Bank Trust National
Association, f/k/a First Trust National Association, as Trustee for Asset
Backed Pass-Through Certificates, New Century Home Equity Loan Trust,
Series 1997-NC5, as amended by Amendment No. 1, dated as of May 15, 1998,
among Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New
Century Mortgage Corporation, as Master Servicer, and U.S. Bank Trust
National Association, as Trustee.
6. Pooling and Servicing Agreement, dated as of November 1, 1997, among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, and U.S. Bank National
Association, as Trustee for New Century Asset-Backed Floating Rate
Certificates, Series 1997-NC5.
7. Pooling and Servicing Agreement, dated as of December 1, 1997, among
Financial Asset Securities Corp., as Depositor, New Century Mortgage
Corporation, as Seller and Master
Servicer, and U.S. Bank National Association, d/b/a First Bank National
Association, as Trustee for Asset Backed Pass-Through Certificates, New
Century Home Equity Loan Trust, Series 1997-NC6.
8. Pooling and Servicing Agreement, dated as of March 1, 1998, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, and U.S. Bank National Association, as
Trustee for New Century Asset-Backed Floating Rate Certificates, Series
1998-NC1.
9. Pooling and Servicing Agreement, dated as of May 1, 1998, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, and U.S. Bank National Association, as
Trustee for Asset-Backed Floating Rate Certificates, Series 1998-NC2.
10. Pooling and Servicing Agreement, dated as of June 1, 1998, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, and U.S. Bank National Association, as
Trustee for New Century Asset-Backed Certificates, Series 1998-NC3.
11. Pooling and Servicing Agreement, dated as of September 1, 1998, among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, and U.S. Bank National
Association, as Trustee for New Century Asset-Backed Floating Rate
Certificates, Series 1998-NC4.
12. Pooling and Servicing Agreement, dated as of September 1, 1998, among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, and U.S. Bank National
Association, as Trustee for New Century Asset-Backed Floating Rate
Certificates, Series 1998-NC6.
13. Pooling and Servicing Agreement, dated as of December 1, 1998, among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer and Servicer, Option One Mortgage
Corporation as Servicer, Firstar Bank Milwaukee, N.A., as Trustee and U.S.
Bank National Association, as Trust Administrator for Mortgage
Pass-Through Certificates, Series 1998-NC7.
14. Pooling and Servicing Agreement, dated as of March 1, 1999, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, Firstar Bank Milwaukee, N.A., as Trustee
and U.S. Bank National Association, as Trust Administrator for Mortgage
Pass-Through Certificates, Series 1999-NC1.
15. Pooling and Servicing Agreement, dated as of March 1, 1999, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master
C-2
Servicer, Firstar Bank Milwaukee, N.A., as Trustee and U.S. Bank National
Association, as Trust Administrator for Floating Rate Mortgage
Pass-Through Certificates, Series 1999-NC2.
16. Pooling and Servicing Agreement, dated as of April 1, 1999, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, Ameriquest Mortgage
Company, Long Beach Mortgage Company, New Century Mortgage Corporation and
Ocwen Federal Bank FSB, as Servicers, and Norwest Bank Minnesota, National
Association, as Trustee for Floating Rate Mortgage Pass-Through
Certificates, Series 1999-3.
17. Pooling and Servicing Agreement, dated as of June 1, 1999, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, Firstar Bank Milwaukee, N.A., as Trustee
and U.S. Bank National Association, as Trust Administrator for Floating
Rate Mortgage Pass-Through Certificates, Series 1999-NC3.
18. Pooling and Servicing Agreement, dated as of June 1, 1999, among Financial
Asset Securities Corp., as Depositor, New Century Mortgage Corporation, as
Servicer, NC Capital Corporation as Seller, Firstar Bank Milwaukee, N.A.,
as Trustee and U.S. Bank National Association, as Trust Administrator for
New Century Home Equity Loan Trust, Series 1999-NCA.
19. Pooling and Servicing Agreement, dated as of August 1, 1999, among Salomon
Brothers Mortgage Securities VII, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, Firstar Bank, N.A., as Trustee and U.S.
Bank National Association, as Trust Administrator for Floating Rate
Mortgage Pass-Through Certificates, Series 1999-NC4.
20. Pooling and Servicing Agreement, dated as of September 1, 1999, among New
Century Mortgage Securities, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, Firstar Bank Milwaukee, N.A., as Trustee
and U.S. Bank National Association, as Trust Administrator for New Century
Home Equity Loan Trust, Series 1999-NCB.
21. Pooling and Servicing Agreement, dated as of December 1, 1999, among
Salomon Brothers Mortgage Securities VII, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, Firstar Bank, N.A., as Trustee
and U.S. Bank National Association, as Trust Administrator for Floating
Rate Mortgage Pass-Through Certificates, Series 1999-NC5.
22. Pooling and Servicing Agreement, dated as of December 1, 1999, among New
Century Mortgage Securities, Inc., as Depositor, New Century Mortgage
Corporation, as Servicer, NC Capital Corporation as Seller, Firstar Bank,
N.A., as Trustee and U.S. Bank National Association, as Trust
Administrator for New Century Home Equity Loan Trust, Series 1999-NCD.
23. Pooling and Servicing Agreement, dated as of March 1, 2000, among New
Century Mortgage Securities, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer,
C-3
Firstar Bank, N.A., as Trustee and U.S. Bank National Association, as
Trust Administrator for New Century Home Equity Loan Trust, Series
2000-NC1.
24. Pooling and Servicing Agreement, dated as of June 1, 2000, among New
Century Mortgage Securities, Inc., as Depositor, New Century Mortgage
Corporation, as Master Servicer, Firstar Bank, N.A., as Trustee and U.S.
Bank National Association, as Trust Administrator for New Century Home
Equity Loan Trust, Series 2000-NCA, as amended by Amendment No. 1 dated as
of July 31, 2000 and Amendment No. 2 dated as of September 15, 2000, each
among New Century Mortgage Securities, Inc., as Depositor, New Century
Mortgage Corporation, as Master Servicer, Firstar Bank, N.A., as Trustee
and U.S. Bank National Association, as Trust Administrator.
25. Pooling and Servicing Agreement, dated as of June 1, 2000, among Credit
Suisse First Boston Mortgage Securities Corp., as Depositor, New Century
Mortgage Corporation and Option One Mortgage Corporation, as Master
Servicers, U.S. Bank National Association, as Trust Administrator and
National City Bank, as Trustee for Home Equity Loan Pass-Through
Certificates, Series 2000-HE1.
C-4
EXHIBIT D
[FORM OF OPINION OF COUNSEL TO THE BORROWER]
________ __, 2001
Ocwen Federal Bank FSB
The Forum, Suite 1002
1675 Palm Beach Xxxxx Xxxxxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Re: Receivables Financing Facility Agreement, dated as of February 28,
2001, by and between Ocwen Federal Bank FSB, as Lender and Pledgee,
and New Century Mortgage Corporation, as Borrower and Pledgor
Ladies and Gentlemen:
We have acted as special counsel to New Century Mortgage Corporation, a
California corporation (the "Borrower") in connection with the preparation,
execution and delivery of:
(a) the Receivables Financing Facility Agreement, dated as of February 28,
2001 (the "Residual Financing Agreement"), by and between Ocwen Federal Bank FSB
(the "Lender") and the Borrower; and
(b) the Note (as defined in the Receivables Financing Facility Agreement).
(the documents referred to in clauses (a) and (b), collectively, the "Delivered
Documents").
This opinion is being furnished to the Lender at the request of the
Borrower.
In rendering the opinions set forth herein, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of (i) the Delivered Documents, (ii) the articles of incorporation
and by-laws of the Borrower, as in effect on the date hereof, (iii) resolutions
of the boards of directors of the Borrower relating to each of the Delivered
Documents adopted on or prior to the date hereof, and (iv) such certificates of
public officials and such other certificates, documents, records, and statements
of officers and other representatives of the Borrower, and public officials as
we have deemed appropriate or necessary as the basis for the opinions set forth
below. As to certain facts material to the opinions expressed herein, we have
relied upon, and assumed the accuracy of, (v) the representations and warranties
contained in the Delivered Documents, and (vi) the certificates and other
documents, records and statements referred to in the immediately preceding
sentence. We have assumed the genuineness of all signatures (other than those of
the Borrower), the legal capacity of all natural persons, the authenticity of
all documents submitted to us as originals, the conformity to original documents
of all documents submitted to us as certified or photostatic copies of the
authenticity of the originals of such copies. We have also assumed the due
execution and delivery, pursuant to due authorization, by the Lender of the
Receivables Financing Facility Agreement.
We are admitted to the bar in the State of [_______] and we express no
opinion as to the laws of any jurisdiction other than the laws of the State of
[______], the General Corporation Law of the State of [_______], the Uniform
Commercial Code as in effect in the state of New York and the Federal securities
laws of the United States.
Based upon the foregoing, and subject to the qualifications and exceptions
stated herein, we are of the opinion that:
1. The Borrower (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (b) has the
corporate power and authority to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except, with respect to the preceding clause (c), to the extent
that the failure to be so qualified and in good standing would not, in the
aggregate, reasonably be expected or have a material adverse effect on the
business, operations, property or condition (financial or otherwise) or
prospects of the Borrower (a "Material Adverse Effect").
2. The Borrower has the corporate power and authority to execute, deliver
and perform each of the Delivered Documents to which it is a party. The Borrower
has the corporate power and authority to borrow under the Residual Financing
Agreement and the Note, and the Borrower has taken all necessary corporate
action to authorize such borrowings on the terms and subject to the conditions
of the Delivered Documents, and the execution, delivery and performance of each
of the Delivered Documents.
3. No consent or authorization of, filing with or other act by or in
respect of any governmental authority of or within the State of [________], or
with respect to the General Corporation Law of the State of [________] is
required in connection with the borrowings under the Receivables Financing
Facility Agreement and the Note or with the execution, delivery, performance,
validity or enforceability of the Delivered Documents, except for consents,
authorizations and filings which have been obtained or made, as the case may be,
and are in full force and effect.
4. Each of the Delivered Documents has been duly executed and delivered on
behalf of the Borrower and constitutes a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms, subject
to the effect of (i) bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or transfer of other similar laws relating to or affecting
the rights of creditors and (ii) the application of general principles of equity
(regardless of whether endorsement is considered in proceedings at law or in
equity).
D-2
5. The execution, delivery and performance by the Borrower of the
Delivered Documents to which it is a party, the borrowings by the Borrower under
the Receivables Financing Facility Agreement and the use of the proceeds
thereof, and the granting of liens by the Borrower pursuant to the Receivables
Financing Facility Agreement, will not violate any Requirement of Law of the
State of [______] or in respect of the General Corporation Law of the State of
[_______], or, to the best of our knowledge, any of the material terms or
provisions of, or constitute a default under, any indenture, mortgage, loan
agreement, deed of trust or any other material agreement or instrument to which
the Borrower is a party or by which the Borrower is bound (collectively, the
"Specified Agreements"), and will not result in, or require, the creation or
imposition of any lien on any of either of their respective properties or
revenues pursuant to any such Requirement of Law or Specified Agreement (other
than the liens created by the Receivables Financing Facility Agreement in favor
of the Lender). As used herein "Requirement of Law" means the governing
documents of the Borrower, or any law, treaty, rule or regulation or
determination of an arbitrator or a court or other governmental authority, in
each case applicable to or binding upon, the Borrower or any of its property or
to which the Borrower or any of its property is subject.
6. No litigation or proceeding of or before any arbitrator or governmental
authority is pending or, to the best of our knowledge, threatened by or against
the Borrower, or any of its respective subsidiaries or against any of its or
their respective properties or revenues (a) with respect to any of the Delivered
Documents or any of the transactions contemplated thereby, or (b) which would
reasonably be expected to have a Material Adverse Effect.
7. The Borrower is not (a) an "investment company", or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended or (b) a "holding company" within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
8. The provisions of the Receivables Financing Facility Agreement are
effective to create, in favor of the Lender, a legal, valid and enforceable
security interest in all right, title and interest of the Borrower in the
"Collateral" described therein.
9. Upon (i) delivery to the Lender of the Pledged Assets, together with a
stock power for each Pledged Assets endorsed in blank by a duly authorized
officer of the Borrower, and (ii) the filing of financing statements in the form
of Annex A in the offices in the jurisdictions as listed on Schedule 1 hereto,
the security interests created under the Receivables Financing Facility
Agreement will constitute fully perfected first priority security interests in
all right, title and interest of the Borrower in the "Collateral" described
therein which can be perfected by filing a financing statement under Article 9
of the Uniform Commercial Code as in effect in the State of [________].
10. Other than nominal recording fees, no fees, taxes or other charges are
due in connection with the financing statements referred to in paragraph 9.
D-3
* * *
This opinion is rendered only to the Lender, is solely for its benefit in
connection with the above transactions and may not be relied upon by the Lender
for any other purpose, relied upon by any other person, firm or corporation for
any purpose without our prior written consent.
Very truly yours,
D-4
EXHIBIT E
[RESERVED]
EXHIBIT F
FORM OF TRUSTEE INSTRUCTION LETTER
__________ __, 2001
[_______________], as Trustee
__________________________
__________________________
Attention: _______________
Re: Receivables Financing Facility Agreement, dated as of February
28, 2001, by and between Ocwen Federal Bank FSB, as Lender and
Pledgee, and New Century Mortgage Corporation, as Borrower and
Pledgor
Ladies and Gentlemen:
Pursuant to Section 3.3 of the Receivables Financing Facility
Agreement, dated as of February 28, 2001 (the "Facility Agreement"), between
Ocwen Federal Bank FSB (the "Lender") and New Century Mortgage Corporation (the
"Borrower"), you are hereby notified that: (i) the Borrower has pledged to the
Lender the Receivables described on Schedule 1 hereto (the "Receivables"), (ii)
each of the Receivables is subject to a security interest in favor of the Lender
and (iii) unless otherwise notified by the Lender in writing, any payments or
distributions made with respect to such Receivables should be remitted
immediately by the Trustee directly to the Lender, in accordance with the
following wire instructions:
--------------------
Please acknowledge receipt of this instruction letter by signing in
the signature block below and forwarding an executed copy to the Lender promptly
upon receipt.
Very truly yours,
NEW CENTURY MORTGAGE CORPORATION
By: _____________________________
Name:
Title:
ACKNOWLEDGED:
_____________________________, as Trustee
By: _____________________________________
Name:
Title:
G-2
EXHIBIT G
CERTIFICATES OF THE BORROWER
CERTIFICATE OF INCUMBENCY
I, , being Secretary of New Century Mortgage Corporation, a
corporation incorporated under the laws of the State of [__________] (the
"Corporation") hereby certify that the following individual currently holds the
title in the Corporation as set forth opposite his name and that the signature
also set forth opposite his name is true and correct. Furthermore, the below
named individual, or his legal designees, has been authorized to enter into the
Receivables Financing Facility Agreement dated as of February 28, 2001, between
New Century Mortgage Corporation and Ocwen Federal Bank FSB on behalf of the
Corporation and is authorized to take any action necessary to effectuate said
agreements.
Date: ________ __, 2001
, Secretary
SECRETARY'S CERTIFICATE
I, , Secretary of New Century Mortgage Corporation, a
[_______] corporation, hereby certify that the Articles of Incorporation and the
By-laws attached hereto are true and correct copies of the original documents in
my possession and that no action has been taken to rescind or amend said
documents.
Date: ________ __, 2001
, Secretary
SECRETARY'S CERTIFICATE
I, , being the Secretary of New Century Mortgage Corporation,
a [________] corporation, hereby certify that the following is a full, true and
correct copy of resolutions duly and regularly adopted by unanimous consent of
the Board of Directors of said Corporation as of _________, 2001, and that no
action has been taken to rescind or amend said resolutions and the same are in
full force and effect.
BE IT RESOLVED, that New Century Mortgage Corporation is hereby authorized and
empowered to enter into the Receivables Financing Facility Agreement (the
"Agreement"), dated as of February 28, 2001, for the principal amount of up to
Eighteen Million Dollars ($18,000,000), with Ocwen Federal Bank FSB, and any
other documents necessary to effect the same and to carry out any and all
transactions contemplated thereby, including but not limited to the Note.
RESOLVED, that the following individuals are authorized and empowered to act on
behalf of the Corporation to take such actions, including the execution and
delivery of the Agreement and documents, and the signature of any one of the
individuals listed below shall be adequate to bind the
Corporation:____________________.
Date: ________ __, 2001
, Secretary
