Exhibit 10.83
SECOND AMENDMENT TO
SUBORDINATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO SUBORDINATED LOAN AGREEMENT (the "Amendment")
dated as of March 29, 2001 is by and between NEW CENTURY MORTGAGE CORPORATION, a
corporation organized under the laws of the State of California (the
"Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a national banking association
(the "Lender").
WITNESSETH THAT:
WHEREAS, the Borrower and the Lender are parties to a Subordinated Loan
Agreement dated as of April 28, 2000, as amended by a First Amendment to
Subordinated Loan Agreement dated as of July 20, 2000 (as so amended, the "Loan
Agreement"), pursuant to which the Lender provides the Borrower with a
subordinated loan facility; and
WHEREAS, the Borrower and the Lender have agreed to amend the Loan
Agreement upon the terms and conditions herein set forth;
NOW, THEREFORE, for value received, the receipt and sufficiency of which
are hereby acknowledged, the Borrower and the Lender agree as follows:
1. CERTAIN DEFINED TERMS. Each capitalized term used herein without
being defined herein that is defined in the Loan Agreement shall have the
meaning given to it therein.
2. AMENDMENT TO LOAN AGREEMENT. The Loan Agreement is hereby amended as
follows:
(a) Section 1.1 of the Agreement is hereby amended by adding the
following definitions in appropriate alphabetical order:
"FIRST AMENDMENT": The First Amendment to Subordinated
Loan Agreement dated as of July 20, 2000 between the Borrower and
the Lender.
"SECOND AMENDMENT": The Second Amendment to Subordinated
Loan Agreement dated as of March 29, 2001 between the Borrower
and the Lender.
(b) The definition of the term "Note" set forth in Section 1.1 of
the Agreement is hereby amended to read in its entirety as follows:
"NOTE": The Third Amended and Restated Subordinated Promissory
Note dated the date of the Second Amendment, made by the Borrower
and payable to the Lender, as the same may be amended, supplemented,
restated or otherwise modified.
(c) Section 2.3 of the Loan Agreement is hereby amended to read as
follows:
2.3 THE NOTE. The obligations of the Borrower to the Lender
evidenced by the Existing Note and the Additional Subordinated Loans
are to be evidenced by a promissory note in the amount of
$40,000,000, substantially in the form of EXHIBIT C to the Second
Amendment, as the same may be amended, supplemented, restated or
otherwise modified (the "Note"). The Lender shall enter in its
ledgers and records the Additional Subordinated Loans made and the
payments made on the Note, and the Lender is authorized by the
Borrower to enter on a schedule attached to the Note a record of
such payments.
3. FEES. In consideration of the Lender's agreement to enter into
this Amendment and extend the maturity of Note, the Borrower shall pay the
Lender, in immediately available funds, the following fees:
(a) A closing fee in the amount of $200,000 (the "Closing Fee").
(b) An extension fee in the amount of $200,000 (the "Extension
Fee").
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall
become effective when the Lender shall have received a counterpart of this
Amendment, duly executed by the Borrower, provided the following conditions are
satisfied:
(a) The Lender shall have received the following, each duly executed
or certified, as the case may be, and dated as of the date of delivery
thereof:
(i) a Third Amended and Restated Subordinated Promissory Note,
in the form of EXHIBIT C hereto (the "New Note"), duly executed by
the Borrower;
(ii) copy of resolutions of the Board of Directors of the
Borrower, certified by its respective Secretary or Assistant
Secretary, authorizing or ratifying the execution, delivery and
performance of this Amendment, the New Note and the other
agreements, documents and instruments related hereto;
(iii) a certified copy of any amendment or restatement of the
Articles of Incorporation or the By-laws of the Borrower made or
entered following the date of the most recent certified copies
thereof furnished to the Lender;
(iv) certified copies of all documents evidencing any
necessary corporate action, consent or governmental or regulatory
approval (if any) with respect to this Amendment and the New Note;
and
(v) such other documents, instruments, opinions and
approvals as the Lender may reasonably request.
(b) The Lender shall have received the Closing Fee and the
Extension Fee.
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5. ACKNOWLEDGMENTS. The Borrower and the Lender acknowledge that, as
amended hereby, the Loan Agreement remains in full force and effect with respect
to the Borrower and the Lender, that each reference to the Loan Agreement in the
Loan Documents shall refer to the Loan Agreement as amended hereby, and that
each reference to the Note in the Loan Documents shall refer to the New Note.
The Borrower confirms and acknowledges that it will continue to comply with the
covenants set out in the Loan Agreement and the other Loan Documents, as amended
hereby, and that its representations and warranties set out in the Loan
Agreement and the other Loan Documents, as amended hereby, are true and correct
as of the date of this Amendment. The Borrower represents and warrants that (i)
the execution, delivery and performance of this Amendment and the New Note are
within its corporate powers and have been duly authorized by all necessary
corporate action; (ii) this Amendment and the New Note have been duly executed
and delivered by the Borrower and constitute the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
their respective terms (subject to limitations as to enforceability which might
result from bankruptcy, insolvency, or other similar laws affecting creditors'
rights generally and general principles of equity) and (iii) no Event of Default
or Default exists.
6. GENERAL.
(a) The Borrower agrees to reimburse the Lender upon demand for all
reasonable expenses (including reasonable attorneys fees and legal
expenses) incurred by the Lender in the preparation, negotiation and
execution of this Amendment and any other document required to be
furnished herewith, and to pay and save the Lender harmless from all
liability for any stamp or other taxes which may be payable with respect
to the execution or delivery of this Amendment and the New Note, which
obligations of the Borrower shall survive any termination of the Loan
Agreement.
(b) This Amendment may be executed in as many counterparts as may be
deemed necessary or convenient, and by the different parties hereto on
separate counterparts, each of which, when so executed, shall be deemed an
original but all such counterparts shall constitute but one and the same
instrument.
(c) Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
(d) This Amendment shall be governed by, and construed in accordance
with, the internal law, and not the law of conflicts, of the State of
Minnesota, but giving effect to federal laws applicable to national banks.
(e) This Amendment shall be binding upon the Borrower, the Lender
and their respective successors and assigns, and shall inure to the
benefit of the Borrower, the Lender and the successors and assigns of the
Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed as of the day and year first above written.
NEW CENTURY MORTGAGE
CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
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Its EVP
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U.S. BANK NATIONAL ASSOCIATION
By /s/ [ILLEGIBLE]
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Its
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