EX 10.68
FIRST AMENDMENT TO
SUBORDINATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO SUBORDINATED LOAN AGREEMENT (the "Amendment")
dated as of July 20, 2000 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 (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 3.2 of the Credit Agreement is hereby amended to add the
following subsection at the end thereof:
3.2(g) As an additional condition to the making of the Additional
Subordinated Loan to be made between October 1, 2000 and December 31,
2000, all "Purchased Receivables" (as defined in the Purchase Agreement
dated as of July 20, 2000 between the Borrower and the Lender) shall have
been paid in full or repurchased by the Borrower on or before the earlier
of (i) the date of such Additional Subordinated Loan and (ii) October 7,
2000.
3. 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) copy of resolutions of the Board of Directors of each
Borrower, certified by its respective Secretary or Assistant
Secretary, authorizing or ratifying the execution, delivery
and performance of this Amendment and the other agreements,
documents and instruments related hereto;
(ii) a certified copy of any amendment or restatement of the
Articles of Incorporation or the By-laws of each Borrower made
or entered following the date of the most recent certified
copies thereof furnished to the Lender;
(iii) certified copies of all documents evidencing any
necessary corporate action, consent or governmental or
regulatory approval (if any) with respect to this Amendment;
and
(iv) such other documents, instruments, opinions and approvals
as the Lender may reasonably request.
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, and that each reference to the Loan Agreement in
the Loan Documents shall refer to the Loan Agreement as amended hereby. 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 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 Borrower and
constitutes the legal, valid and binding obligation of the Borrower, enforceable
against the Borrower 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 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, which obligations of the
Borrower shall survive any termination of the Loan Agreement.
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(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/ Xxxxxx X. Xxxxxxxxx
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Its CFO
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U.S. BANK NATIONAL ASSOCIATION
By Xxxxx X. Xxxxxxx
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Its Senior Vice President
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