EXHIBIT 10.37
FOURTH AMENDMENT TO
-------------------
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
-------------------------------------------
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") dated as of December 11, 1998 by and among NEW CENTURY MORTGAGE
CORPORATION, a California corporation (the "Company"), the lenders party to the
Credit Agreement referred to below (collectively, the "Lenders" and
individually, a "Lender") and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, in its capacity as agent for the Lenders (in such capacity,
together with any successor agents appointed thereunder, the "Agent").
WITNESSETH THAT:
WHEREAS, the Company, the Lenders and the Agent are parties to a Third
Amended and Restated Credit Agreement dated as of May 29, 1998, as amended by a
First Amendment to Third Amended and Restated Credit Agreement dated as of July
27, 1998, a Second Amendment to Third Amended and Restated Credit Agreement
dated as of September 30, 1998 and a Third Amendment to Third Amended and
Restated Credit Agreement dated as of November 24, 1998 (as so amended, the
"Credit Agreement"), pursuant to which the Lenders provide the Company with a
revolving mortgage warehousing credit facility; and
WHEREAS, the Company and the Lenders have agreed to amend the Credit
Agreement upon the terms and conditions herein set forth;
NOW, THEREFORE, for value received, the receipt and sufficiency of which
are hereby acknowledged, the Company and the Lenders agree as follows:
1. Certain Defined Terms. Each capitalized term used herein without
---------------------
being defined herein that is defined in the Credit Agreement shall have the
meaning given to it therein.
2. Amendments to Credit Agreement. The Credit Agreement is hereby
------------------------------
amended as follows:
(a) New Definitions. Section 1.01 is hereby amended by adding the
---------------
following definitions in the correct alphabetical order:
"NCCC": means NC Capital Corporation, a California corporation.
----
"NCCC Guaranty": means the guaranty in the form of Exhibit C-1, as
-------------
the same may be amended, supplemented or restated from time to time.
"Residual Finance Subsidiaries": means (a) NC Residual Corporation, a
-----------------------------
Delaware corporation, as long as it is a wholly-owned Subsidiary of
the Company and does not amend its Certificate of Incorporation as in
effect on December __, 1998, and (b) any other wholly-owned Subsidiary
of the Company or NCCC that, pursuant to its Articles or Certificate
of Incorporation, has a purpose limited to the ownership of Junior
Securitization Interests, the establishment of one or more
securitization trusts, issuing securities backed by such Junior
Securitization Interests, otherwise financing such Junior
Securitization Interests, and lawful activities incidental to and
necessary and convenient to the foregoing.
(b) Change of Control. The definition of "Change of Control" in Section
-----------------
1.01 is hereby amended by deleting clause (a) thereof and inserting the
following:
(a) NCFC not owning, directly or indirectly, all of the issued and
outstanding capital stock of the Company, or the Company not owning,
directly, all of the issued and outstanding capital stock of NCCC;
(c) Formation; Powers; Good Standing. Sections 3.01(a) and (b) are hereby
--------------------------------
amended in their entirety to read as follows:
(a) Formation and Powers. NCFC is a corporation duly organized,
--------------------
validly existing and in good standing under the laws of the State of
Delaware, the Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of
California, NCCC is a corporation duly organized, validly existing and
in good standing under the laws of the State of California, and each
of NCFC, the Company and NCCC has all requisite corporate power and
authority to own and operate its properties, to carry on its business
as now conducted and proposed to be conducted, to enter into and
perform each Loan Document to which it is or will be a party and to
carry out the transactions contemplated thereby.
(b) Good Standing. Each of NCFC, the Company and NCCC is in
-------------
good standing wherever necessary to carry on its business and
operations, except in jurisdictions in which the failure to be in good
standing would not preclude it from enforcing its rights with respect
to any material asset or expose it to any material liability.
-2-
(d) Authorization; No Conflict; Governmental Consents; Binding Effect.
-----------------------------------------------------------------
Section 3.02 is hereby amended by deleting all references therein to "NCFC and
the Company" and inserting therefor "NCFC, the Company and NCCC."
(e) Litigation; Adverse Facts. Section 3.05 is hereby amended in its
-------------------------
entirety to read as follows:
3.05 Litigation; Adverse Facts. Except as set forth in Schedule
-------------------------
3.05, there is no action, suit, proceeding or arbitration at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, pending or, to the knowledge of NCFC, the Company or any of
their Subsidiaries, threatened against or affecting NCFC, the Company or
NCCC or any of their respective properties that would, if decided in a
manner adverse to it, result in any material adverse change in its
business, operations, properties, assets or condition (financial or
otherwise) or would materially adversely affect its ability to perform its
obligations under each Loan Document to which it is or will be a party, and
there is no basis known to it for any action, suit or proceeding which
would have such an effect. None of NCFC, the Company or NCCC is (i) in
violation of any applicable law if such violation materially adversely
affects or may materially adversely affect its business, operations,
properties, assets or condition (financial or otherwise) or (ii) subject to
or in violation of any final judgment, writ, injunction, decree, rule or
regulation of any court or federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic
or foreign, which could have a material adverse effect on its business,
operations, properties, assets or condition (financial or otherwise).
There is no action, suit, proceeding or investigation pending or, to the
knowledge of NCFC, the Company or NCCC, threatened against or affecting
NCFC, the Company or NCCC, which questions the validity or the
enforceability of any Loan Document.
(f) Other Agreements; Performance. Section 3.06 is hereby amended in its
-----------------------------
entirety to read as follows:
3.06 Other Agreements; Performance.
-----------------------------
(a) Agreements. None of NCFC, the Company or NCCC is a party
----------
to or subject to any contractual obligation or charter or other
internal restriction materially adversely affecting its business,
properties, assets, operations or condition (financial or otherwise).
(b) Performance. None of NCFC, the Company or NCCC is in
-----------
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any of its material
contractual obligations, and no condition exists which, with the
giving
-3-
of notice or the lapse of time or both, would constitute such a
default, except where the consequences, direct or indirect, of such
default or defaults, if any, would not have a material adverse effect
on its business, properties, assets, operations or condition
(financial or otherwise). To the best knowledge of NCFC, the Company
and NCCC, the other parties to any of the contractual obligations of
NCFC, the Company or NCCC are not in default thereunder, except where
the consequences, direct or indirect, of such default or defaults, if
any, would not have a material adverse effect on its business,
properties, assets, operations or condition (financial or otherwise).
(g) Licenses and Permits. Section 3.13 is hereby amended in its entirety
--------------------
to read as follows:
3.13 Licenses and Permits. Each of NCFC, the Company and NCCC has
--------------------
all federal, state and local licenses and permits required to be maintained
in connection with and material to the current operation of its businesses,
and all such licenses and permits are valid and fully effective.
(h) Indebtedness. Section 4.08 is hereby amended in its entirety to read
------------
as follows:
4.08 Indebtedness. The Company and NCFC will not, and will not
------------
permit NCCC to, directly or indirectly, create, incur, assume, guarantee,
or otherwise become or remain directly or indirectly liable with respect
to, any Indebtedness, except:
(a) the Obligations;
(b) current liabilities not more than 90 days overdue, unless
contested in good faith by appropriate proceedings and any reserves
required by GAAP have been established, incurred by NCFC, the Company
or NCCC in the ordinary course of business otherwise than for money
borrowed;
(c) Indebtedness incurred to finance the purchase of equipment
and secured solely by Liens on such equipment, in an aggregate amount
not to exceed $7,500,000;
(d) Indebtedness incurred to finance Junior Securitization
Interests which Indebtedness is secured only by such Junior
Securitization Interests, provided, such Indebtedness does not exceed
--------
75% of the value of such Junior Securitization Interests determined in
accordance with GAAP;
-4-
(e) intercompany Indebtedness of NCFC to the Company or NCCC in
an aggregate amount not to exceed $1,000,000;
(f) intercompany indebtedness of the Company or NCCC to NCFC
incurred in the ordinary course of business;
(g) obligations under gestation repurchase agreements or similar
arrangements of the type described in Section 4.09(f);
(h) obligations in respect of letters of credit issued by USBNA
for the account of the Company or NCFC with an aggregate face amount
not to exceed $1,250,000;
(i) Indebtedness incurred by the Company in connection with the
Salomon REO Agreement in an aggregate amount not to exceed $3,000,000;
and
(j) intercompany Indebtedness between the Company and NCCC
incurred in the ordinary course of business.
(i) Liens. Section 4.09 is hereby amended in its entirety to read as
-----
follows:
4.09 Liens. The Company and NCFC will not, and will not permit NCCC
-----
to, directly or indirectly, create, incur, assume or permit to exist any
Lien with respect to any property now owned or hereafter acquired by NCFC,
the Company or NCCC, or any income or profits therefrom, except:
(a) the security interests granted to the Agent for the benefit
of the Lenders, FBS Business Finance Corp. (with respect to
obligations described in Section 4.08(c)) and USBNA (with respect to
obligations described in Section 4.08(g)) 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 NCFC or the Company;
(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;
-5-
(e) Liens on equipment arising under any capitalized lease
obligation or other purchase money Liens on equipment acquired after
the Signing Date to secure Indebtedness permitted pursuant to Section
4.08(c);
(f) Liens incurred in connection with gestation repurchase
agreements or similar arrangements under which NCFC or its
Subsidiaries are required to repurchase Mortgage-backed Securities or
Mortgage Loans from any Lender or other counterparty reasonably
satisfactory to the Agent; provided, that such gestation repurchase
agreements 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;
(g) Liens on Junior Securitization Interests which secure
Indebtedness permitted by Section 4.08(d);
(h) Liens arising under Hedging Arrangements; and
(i) a pledge of the stock of REO Sub to SBRC pursuant to the
Salomon REO Agreement.
(j) Investments. Section 4.10 is hereby amended in its entirety to read as
-----------
follows:
4.10 Investments. The Company and NCFC will not, and will not permit
-----------
NCCC to, 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
Ratings
-6-
Group, a division of McGraw Hill, Inc., 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 Ratings Group,
a division of McGraw Hill, Inc., or Xxxxx'x Investors Service, Inc.
(d) In the case of the Company, Mortgage Loans originated or
acquired by the Company in the ordinary course of the Company's
business, in the case of NCCC, Mortgage Loans acquired from the
Company in the ordinary course of business, and in the case of NCFC,
other consumer debt obligations originated or acquired by NCFC in the
ordinary course of NCFC's business.
(e) Certificates of deposits or bankers acceptances issued by
any of the Lenders or any other 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 4.10.
(g) The capital stock of any Subsidiary (subject to the
limitations set forth in Sections 4.12 and 4.17).
(h) In the case of the Company and NCCC, loans to NCFC in an
aggregate amount not to exceed $1,000,000.
(i) Direct equity investments made by the Company, to the extent
no Event of Default or Unmatured Event of Default has occurred and is
continuing, or would occur as a result therof, in or loans to Persons
in the mortgage origination business, in an aggregate amount not to
exceed $2,500,000.
(j) Investments made or to be made by the Company, in an amount
not to exceed $1,250,000 in the aggregate, and a guaranty made by
NCFC, pursuant to a Strategic Alliance Agreement by and among the
Company, Qualified Financial Services, Inc., a Colorado
-7-
corporation, Qualified Financial Services, Inc., a California
corporation, Xxxxx Xxxxx, an individual, and Xxxxx V.V. Thais, an
individual.
(k) Investments arising under Hedging Arrangements.
(l) In the case of NCFC, loans to the Company and NCCC.
(m) Intercompany Indebtedness between the Company and NCCC
incurred in the ordinary course of business.
(k) Guarantees. Section 4.11 is hereby amended in its entirety to read as
----------
follows:
4.11 Guarantees. The Company and NCFC will not, directly or
----------
indirectly, create or become or be liable with respect to any Guarantee,
other than:
(a) the Guaranty and the NCCC Guaranty;
(b) Guarantees by NCFC of Indebtedness of the Company secured
by liens described in Section 4.09(e), in an amount not to exceed
$7,500,000;
(c) Guarantees by NCFC of the Company's obligations under (i)
gestation repurchase agreements or similar arrangements of the type
described in Section 4.09(f), or (ii) the Strategic Alliance Agreement
described in Section 4.10(j); and
(d) Guarantees by the Company of the obligations of NCCC or
Residual Finance Subsidiaries in respect of Indebtedness permitted by
Sections 4.08 (d) and (g).
(l) Restriction on Fundamental Changes. Section 4.12 is hereby amended by
----------------------------------
deleting the word "and" at the end of subsection (b) thereof, by deleting the
period at the end of subsection (c) thereof and inserting a semicolon therefor
followed by the word "and" and inserting the following new subsection (d) at the
end thereof:
(d) The Company may transfer to NCCC (i) Mortgage Loans,
provided that such Mortgage Loans are subject to the security interest
created under the Pledge and Security Agreement prior to such
transfer, but will be released from such security interest, and the
Warehousing Loans will be repaid with the proceeds of Indebtedness
incurred by NCCC of the type described in Section 4.08(g),
-8-
simultaneously with such transfer, (ii) Junior Securitization
Interests, and (iii) fixed assets used in the operation of NCCC.
(m) Subsidiaries. Section 4.17 is hereby amended in its entirety to read
------------
as follows:
4.17 Subsidiaries. (a) The Company will not create or acquire any
------------
Subsidiaries other than REO Sub, NCCC and Residual Finance Subsidiaries,
and (b) NCFC will not create or acquire any Subsidiaries other than (i) the
Company, (ii) REO Sub, (iii) NCCC, (iv) Residual Finance Subsidiaries, and
(v) Subsidiaries engaged solely in any business involving the origination,
acquisition, servicing and sale of consumer obligations.
(n) Affiliate Transactions. Section 4.18 is hereby amended in its entirety
----------------------
to read as follows:
4.18 Affiliate Transactions. The Company and NCFC will not enter
----------------------
into any transaction with an Affiliate of the Company or NCFC, except:
(a) transactions in the ordinary course of business on terms no
less favorable to the Company or NCFC than those that would be
obtained in an arm's-length transaction;
(b) Indebtedness described in Sections 4.08(e) and 4.08(j);
(c) guaranties of Indebtedness described in Section 4.11;
(d) transfers of assets by the Company to NCCC and REO Sub as
described in Sections 4.12(c) and 4.12(d); and
(e) transfers by the Company and NCCC of Junior Securitization
Interests to Residual Finance Subsidiaries.
(o) Events of Default. Section 6.01 is hereby amended in its entirety to
-----------------
read as follows:
6.01 Events of Default. The occurrence of any one or more of the
-----------------
following events shall constitute an Event of Default:
(a) The Company shall fail to make when due, whether by
acceleration of maturity or otherwise, any payment of principal of any
Note, or shall fail to pay within five days after the same becomes
due, whether by acceleration of maturity or otherwise, any payment of
interest on any Note or any fee or other amount required to be paid to
-9-
the Agent or any Lender pursuant to this Agreement or any other Loan
Document; or
(b) Any representation or warranty made or deemed made by the
Company in this Agreement or by the Company, NCFC or NCCC in any other
Loan Documents or in any certificate, statement, report or document
furnished to the Agent or the Lenders pursuant to or in connection
with any Loan Document shall be untrue or misleading in any material
respect on the date as of which the facts set forth are stated or
certified or deemed stated or certified; or
(c) The Company shall fail to comply with any agreement,
covenant, condition, provision or term contained in the Pledge and
Security Agreement, in the Servicing Security Agreement or in Section
4.02(a), 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17,
4.20, 4.21 or 4.22, or shall fail to comply with any agreement,
covenant, condition, provision or term contained in Section 4.02(b) or
4.04 and such failure shall not be remedied within 10 calendar days
after an executive officer of the Company shall have become aware of
such failure to comply; or
(d) The Company, NCFC or NCCC shall fail to comply with any
other agreement, covenant, condition, provision or term contained in
this Agreement or any other Loan Document then in effect (other than
those hereinabove set forth in this Section 6.01) and such failure to
comply is not remedied within 30 calendar days after the earliest of
(i) the date the Agent has given the Company written notice of the
occurrence thereof, (ii) the date the Company gives notice of such
failure to the Agent or (iii) the date the Company should have given
such notice of such failure to the Agent pursuant to Section
4.01(e)(ii); or
(e) Any creditor or representative of any creditor of the
Company, NCFC or NCCC shall become entitled to declare any
Indebtedness in the amount of $250,000 or more owing on any bond,
debenture, note or other evidence of Indebtedness for borrowed money
to be due and payable prior to its expressed maturity, whether or not
such Indebtedness is actually declared to be immediately due and
payable, or any such Indebtedness becomes due and payable prior to its
expressed maturity by reason of any default by the Company, NCFC or
NCCC in the performance or observance of any obligation or condition
and such default shall not have been effectively waived or shall not
have been cured within any grace period allowed therefor or any such
Indebtedness shall have become due by its terms and shall not have
been promptly paid or extended; or
-10-
(f) The Company, NCFC or NCCC shall become insolvent or shall
generally not or admit in writing its inability to pay its debts as
they mature or shall apply for, shall consent to, or shall acquiesce
in the appointment of a custodian, trustee or receiver of the Company,
NCFC or NCCC or for a substantial part of the property thereof or, in
the absence of such application, consent or acquiescence, a custodian,
trustee or receiver shall be appointed for the Company, NCFC or NCCC
or for a substantial part of the property thereof and shall not be
discharged within 60 days, or the Company, NCFC or NCCC shall make an
assignment for the benefit of creditors; or
(g) Any bankruptcy, reorganization, debt arrangement or other
proceeding under any bankruptcy or insolvency law shall be instituted
by or against the Company, NCFC or NCCC, and, if instituted against
the Company, NCFC or NCCC, shall have been consented to or acquiesced
in by the Company, NCFC or NCCC, or shall remain undismissed for 60
days, or an order for relief shall have been entered against the
Company, NCFC or NCCC; or
(h) Any dissolution or liquidation proceeding shall be
instituted by or against the Company, NCFC or NCCC and, if instituted
against the Company, NCFC or NCCC, shall be consented to or acquiesced
in by the Company, NCFC or NCCC or such Subsidiary or shall remain for
60 days undismissed; or
(i) A judgment or judgments for the payment of money in excess
of the sum of $250,000 in the aggregate shall be rendered against the
Company, NCFC or NCCC and either (i) the judgment creditor executes on
such judgment or (ii) such judgment remains unpaid or undischarged for
more than 60 days from the date of entry thereof or such longer period
during which execution of such judgment shall be stayed during an
appeal from such judgment.
(j) Any execution or attachment shall be issued whereby any
substantial part of the property of the Company, NCFC or NCCC shall be
taken or attempted to be taken and the same shall not have been
vacated or stayed within 30 days after the issuance thereof; or
(k) The Pledge and Security Agreement, the Servicing Security
Agreement, the Guaranty or the NCCC Guaranty shall, at any time, cease
to be in full force and effect or shall be judicially declared null
and void, or the validity or enforceability thereof shall be contested
by the Company, NCFC or NCCC, or the Agent for the benefit of the
Lenders shall cease to have a valid and perfected security interest
having the
-11-
priority contemplated under the Pledge and Security Agreement or the
Servicing Security Agreement in any part of the Collateral described
therein, other than by action or inaction of the Agent, unless the
Company shall, within two Business Days after the earlier of the date
it receives notice thereof from the Agent or the date an officer of
the Company has knowledge thereof, repay the outstanding Loans in an
amount sufficient to reduce the aggregate outstanding principal
balance of the Loans to the aggregate Warehousing Collateral Value of
the Collateral; or
(l) A Change of Control shall occur.
(p) Amendments, Waivers and Modification Fees. Article VIII is hereby
-----------------------------------------
amended by adding a new Section 8.16 thereto to read as follows:
8.16 Amendments, Waivers and Modification Fees. The Company agrees
-----------------------------------------
to pay to the Agent for the account of each Lender which provides its
written consent to an amendment, waiver or other modification of the Loan
Documents on or before the date such amendment, waiver or other
modification becomes effective as a result of the written approval thereof
by the requisite number of Lenders required by the Loan Documents, a
processing fee of $1,500, said fee to be payable promptly following such
effective date; provided, however, that such fee shall not apply to the
first two such amendments, waivers or other modifications hereunder during
any continuous one year period (calculated from the date of this
Agreement).
(q) Exhibit C-1. The Credit Agreement is amended by adding Exhibit C-1
-----------
hereto as Exhibit C-1 to the Credit Agreement.
3. Conditions to Effectiveness of this Amendment. This Amendment shall
---------------------------------------------
become effective when the Agent shall have received at least thirteen (13)
counterparts of this Amendment, duly executed by the Company and the Required
Lenders and acknowledged by NCFC, provided the following conditions are
satisfied:
(a) Before and after giving effect to this Amendment, the representations
and warranties of the Company in Section 3 of the Credit Agreement, Section 5 of
the Pledge and Security Agreement and Section 4 of the Servicing Security
Agreement, of NCFC in Section 15 of the Guaranty, and of NCCC in Section 15 of
the NCCC Guaranty shall be true and correct as though made on the date hereof,
except for changes that are permitted by the terms of the Credit Agreement.
(b) Before and after giving effect to this Amendment, no Event of Default
and no Unmatured Event of Default shall have occurred and be continuing.
-12-
(c) No material adverse change in the business, assets, financial
condition or prospects of the Company or NCFC shall have occurred since the
December 31, 1997.
(d) The Agent 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) copy of resolutions of the Board of Directors of the Company,
certified by its respective Secretary or Assistant Secretary, authorizing
or ratifying the execution, delivery and performance of this Amendment;
(ii) a certified copy of any amendment or restatement of the
Articles of Incorporation or the By-laws of the Company made or entered
following the date of the most recent certified copies thereof furnished to
the Lenders;
(iii) certified copies of all documents evidencing any necessary
corporate action, consent or governmental or regulatory approval (if any)
with respect to this Amendment;
(iv) the NCCC Guaranty, executed by the parties thereto;
(v) a certificate signed by the Secretary or an Assistant Secretary
of NCCC certifying (A) as to the names, incumbency and true signatures of
the respective persons authorized to execute and deliver this Amendment and
each Loan Document to which it is or will be a party and (B) that the
Agent and the Lenders may conclusively rely on such certificate until the
Agent shall have received a further certification of its Secretary or an
Assistant Secretary canceling or amending such certificate and submitting
the names, incumbency and signatures of the officers named in such further
certificate;
(vi) a copy of the Articles of Incorporation of NCCC with all
amendments thereto, certified by the appropriate governmental official of
the jurisdiction of its respective incorporation;
(vii) certificates of good standing for NCCC in the jurisdiction of
its incorporation and in each of the jurisdictions in which it is required
to be qualified to do business, certified by the appropriate governmental
officials;
(viii) a certificate of the Secretary or an Assistant Secretary of
NCCC certifying to a true and correct copy of its respective bylaws, as
amended as of the date of this Amendment; and
(ix) such other documents, instruments, opinions and approvals as
the Agent may reasonably request.
-13-
(e) The Agent shall have received the amendment fee required by Section
8.16 of the Credit Agreement as amended by this Amendment.
4. Acknowledgments. The Company and each Lender acknowledge that, as
---------------
amended hereby, the Credit Agreement remains in full force and effect with
respect to the Company and the Lenders, and that each reference to the Credit
Agreement in the Loan Documents shall refer to the Credit Agreement as amended
hereby. The Company confirms and acknowledges that it will continue to comply
with the covenants set out in the Credit Agreement and the other Loan Documents,
as amended hereby, and that its representations and warranties set out in the
Credit Agreement and the other Loan Documents, as amended hereby, are true and
correct as of the date of this Amendment. The Company represents and warrants
that (i) the execution, delivery and performance of this Amendment is within its
corporate powers and has been duly authorized by all necessary corporate action;
(ii) this Amendment has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms (subject to limitations as to
enforceability which might result from bankruptcy, insolvency, or other similar
laws affecting creditors' rights generally and general principles of equity) and
(iii) no Events of Default or Unmatured Events of Default exist.
5. General.
-------
(a) The Company agrees to reimburse the Agent upon demand for all
reasonable expenses (including reasonable attorneys fees and legal expenses)
incurred by the Agent in the preparation, negotiation and execution of this
Amendment and any other document required to be furnished herewith, and to pay
and save the Lenders harmless from all liability for any stamp or other taxes
which may be payable with respect to the execution or delivery of this
Amendment, which obligations of the Company shall survive any termination of the
Credit Agreement.
(b) This Amendment may be executed in as many counterparts as may be
deemed necessary or convenient, and by the different parties hereto on separate
counterparts, each of which, when so executed, shall be deemed an original but
all such counterparts shall constitute but one and the same instrument.
(c) Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
portions hereof or affecting the validity or enforceability of such provisions
in any other jurisdiction.
-14-
(d) This Amendment shall be governed by, and construed in accordance with,
the internal law, and not the law of conflicts, of the State of Minnesota, but
giving effect to federal laws applicable to national banks.
(e) This Amendment shall be binding upon the Company, the Lenders, the
Agent and their respective successors and assigns, and shall inure to the
benefit of the Company, the Lenders, the Agent and the successors and assigns of
the Lenders and the Agent.
-15-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the day and year first above written.
NEW CENTURY MORTGAGE
CORPORATION
By /s/ Xxx Xxxxxxxx
-----------------------------
Its Executive Vice President
-------------------------
U.S. BANK NATIONAL ASSOCIATION,
By /s/ Xxxxx X. Xxxxxxx
-----------------------------
Its Vice President
-------------------------
GUARANTY FEDERAL BANK, FSB
By /s/ W. Xxxxx Xxxxxxxx
-----------------------------
Its Vice President
-------------------------
[Signature Page for Fourth Amendment to
Third Amended and Restated Credit Agreement]
-16-
COMERICA BANK
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Its Assistant Vice President
-------------------------------------
FIRST UNION NATIONAL BANK
By /s/ X. X. Xxxxx
----------------------------------------
Its VP
-------------------------------------
RESIDENTIAL FUNDING CORPORATION
By /s/ illegible
----------------------------------------
Its Director
-------------------------------------
BANK ONE, TEXAS, N.A.
By /s/ Xxxx X. Xxxxxxx
----------------------------------------
Its Vice President
-------------------------------------
[Signature Page for Fourth Amendment to
Third Amended and Restated Credit Agreement]
THE BANK OF NEW YORK
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Its Vice President
------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Xxxxx Xxxxxx
-----------------------------------
Its Assistant Vice President
--------------------------------
NATIONSBANK OF TEXAS, N.A.
By /s/ Xxxxxxx Xxxxxx
------------------------------------
Its Senior Vice President
---------------------------------
FLEET BANK, N.A.
By ___________________________________
Its________________________________
[Signature Page for Fourth Amendment to
Third Amended and Restated Credit Agreement]
THE UNDERSIGNED, NEW CENTURY FINANCIAL CORPORATION, HEREBY (1) AGREES
THAT EACH REFERENCE TO THE CREDIT AGREEMENT, OR WORDS OF SIMILAR IMPORT,
CONTAINED IN THE THIRD AMENDED AND RESTATED GUARANTY DATED AS OF MAY 29, 1998
(THE "GUARANTY") BY THE UNDERSIGNED TO THE LENDERS AND THE AGENT, SHALL BE A
REFERENCE TO THE CREDIT AGREEMENT AS AMENDED BY THE FOREGOING AMENDMENT, (2)
CONFIRMS THAT THE GUARANTY SHALL REMAIN IN FULL FORCE AND EFFECT AFTER GIVING
EFFECT TO THE FOREGOING AMENDMENT, AND (3) CONFIRMS AND ACKNOWLEDGES THAT ITS
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 15 OF THE GUARANTY ARE TRUE
AND CORRECT AS OF THE DATE OF THE FOREGOING AMENDMENT.
NEW CENTURY FINANCIAL CORPORATION
By /s/ Xxx Xxxxxxxx
-----------------------------------
Its Executive Vice President
--------------------------------
