EXHIBIT 10.1
AGREEMENT TO ADD LENDER
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THIS AGREEMENT TO ADD LENDER (the "Agreement"), dated as of April 29,
1998, is by and among NEW CENTURY MORTGAGE CORPORATION, a California corporation
(the "Company"), U.S. BANK BANK NATIONAL ASSOCIATION, formerly known as First
Bank National Association, as agent (the "Agent") for the Lenders party to the
Second Amended and Restated Credit Agreement described below, and NATIONSBANK OF
TEXAS, N.A. (the "Additional Lender").
Recitals
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A. The Company, the Agent and the Lenders are parties to that certain
Second Amended and Restated Credit Agreement dated as of July 31, 1997 (the
"Credit Agreement").
B. The Company and the Agent desire to add the Additional Lender as a
party thereto with a Warehousing Commitment as herein set forth.
C. This Agreement is delivered to the Agent by the Company and the
Additional Lender pursuant to Section 8.06(b) of the Credit Agreement.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Article I
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Definitions
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Section 1.01. Incorporated Definitions. Capitalized terms used in this
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Agreement, to the extent not otherwise defined herein, shall have the same
meanings as in the Credit Agreement.
Article II
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Concerning the Additional Lender
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Section 2.01. Status as a Lender. Effective as of April 29, 1998, the
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Additional Lender shall be and is a Lender under the Credit Agreement and shall
and does have all of the rights, privileges and benefits of a Lender under the
Credit Agreement and the Loan Documents, and all of the duties of a Lender
thereunder, in each case as if the Additional Lender had been a Lender initially
a party to the Credit Agreement.
Section 2.02. Commitment. The Warehousing Commitment of the Additional
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Lender shall be THIRTY MILLION DOLLARS ($30,000,000.00). Schedule 1.01(b) of
the Credit Agreement is hereby amended and restated in its entirety to read as
set forth in Schedule 1.01(b) hereto.
Article III
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Conditions Precedent
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Section 3.01. Delivery of Documents. The obligation of the Additional
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Lender to make its initial Advance shall be subject to the delivery to the Agent
by the Company of the following documents:
(a) a promissory note in the form of Exhibit F to the Credit Agreement,
payable to the Additional Lender, in the principal amount of the Additional
Lender's Warehousing Commitment;
(b) a certificate of the Secretary or Assistant Secretary of the Company
certifying (i) resolutions of the Company's Board of Directors authorizing
the execution, delivery and performance of this Agreement and the
Additional Lender's Warehousing Note and identifying the officers of the
Borrower authorized to sign such instruments, and (ii) specimen signatures
of the officers so authorized; and
(c) such other documents as the Agent or the Additional Lender may
reasonably request.
Article IV
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Miscellaneous
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Section 4.01. Applicable Law. This Agreement shall be governed by and
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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.
Section 4.02. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed as of the date first above written.
NEW CENTURY MORTGAGE CORPORATION
By /s/ [SIGNATURE ILLEGIBLE]^^
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Its CEO
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NATIONSBANK OF TEXAS, N.A.
By /s/ Xxx X. Xxxxxx
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Its NationsBank of Texas, N.A.
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Senior Vice President
Address for Notices:
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000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
U.S. BANK NATIONAL
ASSOCIATION, formerly known as
First Bank National Association,
as Agent
By /s/ [SIGNATURE ILLEGIBLE]^^
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Its Vice President
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S-1
SCHEDULE 1.01(b) TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
BANK COMMITMENTS
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Working
Warehousing Capital
Bank Commitment Commitment
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U.S. Bank National Association $60,000,000 $4,000,000
Guaranty Federal Bank, F.S.B. $50,000,000 0
Comerica Bank California, Inc. $15,000,000 0
First Union National Bank $25,000,000 0
Residential Funding Corporation $25,000,000 0
Xxxx Xxx, Xxxxx, National Association $30,000,000 0
Xxx Xxxx xx Xxx Xxxx $25,000,000 0
The First National Bank of Chicago $30,000,000 0
NationsBank of Texas, N.A. $30,000,000 0
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
Exhibit F
PROMISSORY NOTE
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(Warehousing Note)
April 29, 1998
$30,000,000 Minneapolis, Minnesota
FOR VALUE RECEIVED, NEW CENTURY MORTGAGE CORPORATION, a California
corporation, hereby promises to pay to the order of NATIONSBANK OF TEXAS, N.A.
(the "Bank") at the main office of the Agent in Minneapolis, Minnesota, in
lawful money of the United States of America in Immediately Available Funds (as
such term and each other capitalized term used herein are defined in the Credit
Agreement hereinafter referred to), the principal sum of THIRTY MILLION AND
NO/100 DOLLARS ($30,000,000) or the aggregate unpaid principal amount of all
Warehousing Loans made by the Bank pursuant to the Credit Agreement described
below, whichever is less, and to pay interest in like funds from the date hereof
on the unpaid balance thereof at the rates per annum and at such times as are
specified in the Credit Agreement. Interest (computed on the basis of actual
days elapsed and a year of 360 days) shall be payable at said office at the
times specified in the Credit Agreement.
Principal hereof shall be payable in the amounts and at the times set forth
in the Credit Agreement.
This note is one of the Warehousing Notes referred to in the Second Amended
and Restated Credit Agreement dated as of July 31, 1997, between the undersigned
the Bank, the other banks party thereto and First Bank National Association, as
Agent (as the same may be amended, modified or restated from time to time, the
"Credit Agreement"). Unless otherwise defined herein, capitalized terms used
herein shall have the meanings given to such terms in the Credit Agreement. This
note is subject to certain mandatory and voluntary prepayments and its maturity
is subject to acceleration, in each case upon the terms provided in the Credit
Agreement.
The undersigned hereby waives diligence, presentment, demand, protest, and
notice (except such notice as is required under the Loan Documents) of any kind
whatsoever. The nonexercise by the Bank of any of its rights hereunder or under
the other Loan Documents in any particular instance shall not constitute a
waiver thereof in any subsequent instance.
This note is entitled to the benefit of the Guaranty, the Pledge and Security
Agreement and the other Loan Documents.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. In the event of
default hereunder, the undersigned agrees to pay all costs and expenses of
collection, including but not limited to reasonable attorneys' fees.
Notwithstanding the foregoing paragraphs and all other provisions of this
note and the Credit Agreement, none of the terms and provisions of this note or
the Credit Agreement shall ever be construed to create a contract to pay to the
Bank, for the use, forbearance or detention of money, interest in excess of the
maximum amount of interest permitted to be charged by the Bank to the
undersigned under applicable state or federal law from time to time in effect,
and the undersigned shall never be required to pay interest in excess of such
maximum amount. If, for any reason, interest is paid hereon in excess of such
maximum amount (whether as a result of the payment of this note prior to its
maturity or otherwise), then promptly upon any determination that such excess
has been paid the Bank will, at its option, either refund such excess to the
undersigned or apply such excess to the principal owing hereunder. All interest
paid shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full period of the Compnay's credit
relationship with the Bank until payment in full of the principal (including the
period of any renewal or extension) so that the interest for such full period
shall not exceed the maximum rate of interest permitted by applicable law.
NEW CENTURY MORTGAGE CORPORATION
By___________________________________
Its_______________________________
