SUBORDINATED LOAN AGREEMENT
THIS SUBORDINATED LOAN AGREEMENT, dated as of April 28, 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").
RECITALS
A. The Borrower has executed and delivered to the Lender an Amended
and Restated Subordinated Promissory Note dated as of February 17, 2000 (the
"Existing Note"), evidencing and setting forth the terms of a $30,000,000
subordinated loan made by the Lender to the Borrower.
B. The Borrower has requested that the Lender make up to an
additional $10,000,000 in subordinated loans to the Borrower.
C. The Lender and the Borrower desire to amend and restate the terms
of the Existing Note and set forth the terms for such additional subordinated
loans.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the Borrower and the Lender agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms.Section 1.1 Defined Terms. As used in this
Agreement the following terms shall have the following respective meanings:
"Additional Subordinated Loan": As defined in Section 2.1.
"Agent": The Lender, in its capacity as agent pursuant to the
Warehousing Agreement and as collateral agent pursuant to the Security
Documents.
"Appraisal Review Policy": The Borrower's appraisal review policy
attached hereto as Exhibit A, as hereafter modified in accordance with Section
5.2(b) or otherwise, in each case with the consent of the Lender.
"Automated Underwriting System": The software package and related
material known as "JET," or another product selected by Borrower and acceptable
to Lender, that is capable of analyzing the loan quality of, and assigning a
credit grade to, Mortgage Loans, and which in any case must evaluate the credit
grade of each Mortgage Loan based on all relevant factors required pursuant to
the Borrower's underwriting guidelines (including, without
limitation, the mortgagor's FICO score except in connection with the Borrower's
"Mortgage Only" program).
"Business Day": Any day (other than a Saturday, Sunday or legal
holiday in the State of Minnesota) on which national banks are permitted to be
open at the principal location of the Lender.
"Change of Control": The occurrence, after the Closing Date, of any
of the following circumstances: (a) NCFC not owning, directly or indirectly, all
of the issued and outstanding capital stock of the Borrower; or (b) any Person,
or two or more Persons acting in concert, other than the Management
Shareholders, acquiring beneficial ownership (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended), directly or indirectly, of securities of NCFC (or other
securities convertible into such securities) representing 25% or more of the
combined voting power of all securities of NCFC entitled to vote in the election
of directors; (c) any Person, or two or more Persons acting in concert, other
than the Management Shareholders, acquiring by contract or otherwise, or
entering into a contract or arrangement which upon consummation will result in
its or their acquisition of, control over securities of NCFC (or other
securities convertible into such securities) representing 25% or more of the
combined voting power of all securities of NCFC entitled to vote in the election
of directors; or (d) Xxxxxx Xxxx ceasing to be Chairman and Chief Executive
Officer of NCFC.
"Closing Date": Any Business Day on or after the date of this
Agreement on which all the conditions precedent to the obligation of the Lender
to make the initial Additional Subordinated Loan, as set forth in Section 3.1,
have been satisfied.
"Commitment": The obligation of the Lender to make Additional
Subordinated Loans to the Borrower upon the terms and subject to the conditions
and limitations of this Agreement.
"Company Securitization Transaction": As defined in the Warehousing
Agreement on the date hereof.
"Default": Any event which, with the giving of notice, lapse of
time, or both, would constitute an Event of Default.
"Equity Documents": An Amended and Restated Certificate of
Designation for Series 1999A Convertible Preferred Stock, an Amended and
Restated Registration Rights Agreement, a Warrant Issuance Agreement and the
Warrants to be issued pursuant thereto, giving effect to the terms set forth in
the letter agreement dated as of March 28, 2000 between the Borrower and the
Lender with respect to NCFC's common and preferred stock and containing terms
and conditions in all respects satisfactory to the Lender.
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"Event of Default": As defined in the Note.
"GAAP": Generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, which are applicable to the circumstances as of any date of
determination.
"Lien": With respect to any Person, any security interest, mortgage,
pledge, lien, charge, encumbrance, title retention agreement or analogous
instrument or device (including the interest of each lessor under any
capitalized lease), in, of or on any assets or properties of such Person, now
owned or hereafter acquired, whether arising by agreement or operation of law.
"Loan Documents": This Agreement, the Note, and the Security
Documents.
"Management Shareholders": Xxxxxx X. Xxxx, Xxxx X. Xxxxxxx, Xxxxxx
X. Xxxxxxxxx and Xxxxxx Xxxxxx.
"Mortgage-backed Security": As defined in the Warehousing Agreement
on the date hereof.
"Mortgage Loan": As defined in the Warehousing Agreement on the date
hereof.
"NCCC": NC Capital Corporation, a California corporation.
"NCFC": New Century Financial Corporation, a Delaware corporation.
"NCRC": NC Residual II Corporation, a Delaware corporation.
"Note": The Second Amended and Restated Subordinated Promissory Note
of even date herewith, made by the Borrower and payable to the Lender, as the
same may be amended, supplemented, restated or otherwise modified.
"Origination Cost Percentage": For any period of determination, the
ratio (expressed as a percentage) of 1) costs to originate or acquire mortgage
loans in accordance with the definition below to 2) the aggregate principal
balance of all Mortgage Loans originated or acquired in accordance with the
definition below. Costs to originate or acquire mortgage loans shall be defined
as (a) points and fees paid to brokers (excluding points and fees paid to
brokers by Worth Funding, Inc.), plus (b) total expenses incurred by New Century
for the period except for servicing expenses, loan loss provision, incentive
compensation payments to the Management Shareholders, and expenses incurred by
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xxxxxxx.xxx and Worth Funding, Inc., minus (c) points and fees received from
retail borrowers and brokers (excluding points and fees received by xxxxxxx.xxx,
Worth Funding, Inc., and the Loan Servicing Division). The aggregate principal
balance of all Mortgage Loans originated or acquired shall be defined as the
aggregate principal balance of all Mortgage Loans so originated or acquired,
excluding loans originated or acquired by xxxxxxx.xxx, Worth Funding, Inc. and
the Loan Servicing Division.
"Person": Any natural person, corporation, partnership, limited
partnership, joint venture, firm, association, trust, unincorporated
organization, government or governmental agency or political subdivision or any
other entity, whether acting in an individual, fiduciary or other capacity.
"Residual Security Agreement": The Amended and Restated Security
Agreement of even date herewith between NCCC and NCRC, as Grantors, and the
Agent.
"Security Documents": The Amended and Restated Pledge and Security
Agreement from the Borrower to the Agent, the Amended and Restated Servicing
Security Agreement from the Borrower to the Agent, and the Residual Security
Agreement, each of even date herewith, as the same may be amended, supplemented,
restated or otherwise modified from time to time.
"Securitization Percentage": For any period of determination, the
ratio (expressed as a percentage) of (a) the aggregate principal amount of
Mortgage Loans sold or pledged by the Company in Securitization Transactions, to
(b) the sum of the aggregate principal amount of Mortgage Loans sold or pledged
by the Company in Securitization Transactions and all Mortgage Loans sold by the
Company in Whole Loan Transactions.
"Securitization Transaction" means (i) a sale or pledge of Mortgage
Loans to back a Company Securitization Transaction or (ii) another sale of
Mortgage Loans in connection with the issuance of Mortgage-backed Securities, to
the extent there is recourse to the Company for defaults under such Mortgage
Loans (other than a default resulting from the mortgagor's failure to make the
first payment on a Mortgage Loan, if applicable), or the purchase price is
contingent upon the performance of such Mortgage Loans or not payable entirety
at the time of sale.
"Subsidiary": Any corporation or other entity of which securities or
other ownership interests having ordinary voting power for the election of a
majority of the board of directors or other Persons performing similar functions
are owned by the Borrower either directly or through one or more Subsidiaries.
"Warehouse Debt": Obligations incurred to finance, and secured by,
Mortgage Loans, Mortgage-backed Securities and related assets.
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"Warehousing Agreement": The Fourth Amended and Restated Credit
Agreement dated as of May 26, 1999 by and among the Borrower, the Lenders party
thereto and the Agent, as the same has been and may hereafter be amended,
supplemented, restated or otherwise modified and in effect from time to time.
"Whole Loan Transaction" means a sale of Mortgage Loans that does
not involve any recourse to the Company for defaults under such Mortgage Loans
(other than a default resulting from the mortgagor's failure to make the first
payment on a Mortgage Loan, if applicable) for a purchase price that is not
contingent upon the performance of such Mortgage Loans and that is payable
entirely at the time of sale.
Section 1.2 Accounting Terms and Calculations.Section 1.2 Accounting
Terms and Calculations. Except as may be expressly provided to the contrary
herein, all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP.
Section 1.3 Other Definitional Terms, Terms of Construction.Section
1.3 Other Definitional Terms, Terms of Construction. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. References to Sections, Exhibits, Schedules and the like
references are to Sections, Exhibits, Schedules and the like of this Agreement
unless otherwise expressly provided. The words "include," "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
Unless the context in which used herein otherwise clearly requires, "or" has the
inclusive meaning represented by the phrase "and/or." All incorporations by
reference of covenants, terms, definitions or other provisions from other
agreements are incorporated into this Agreement as if such provisions were fully
set forth herein, and include all necessary definitions and related provisions
from such other agreements. All such covenants, terms, definitions and other
provisions from other agreements shall survive any termination of such other
agreements until the obligations of the Borrower under this Agreement and the
Note are irrevocably paid in full, and shall not be affected by any amendments
thereto unless such amendments are separately adopted by the Borrower and the
Lender for purposes of this Agreement.
ARTICLE II
TERMS OF LENDING ARTICLE II TERMS OF LENDING
Section 2.1 Additional Subordinated Loans. Section 2.1 Additional
Subordinated Loans. Upon the terms and subject to the conditions hereof, the
Lender agrees to make the following loans (each, an "Additional Subordinated
Loan") to the Borrower upon the terms and subject to the conditions set forth
herein: (a) on the Closing Date, a single loan in the amount of $5,000,000, (b)
between July 1, 2000 and September 30, 2000, a single loan in the
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amount of $2,500,000, and (c) between October 1, 2000 and December 31, 2000, a
single loan in the amount of $2,500,000.
Section 2.2 Loan Requests. The Borrower's request for each
Additional Subordinated Loan shall be in writing or by telephone and must be
given so as to be received by the Lender not later than 3:30 p.m. (Minneapolis
time) three Business Days prior to the date of the requested Additional
Subordinated Loan.
Section 2.3 The Note.Section 2.2 Loan Requests. The Borrower's
request for each Additional Subordinated Loan shall be in writing or by
telephone and must be given so as to be received by the Lender not later than
330 p.m. (Minneapolis time) three Business Days prior to the date of the
requested Additional Subordinated Loan. Section 2.3 The Note. The obligations of
the Borrower to the Lender evidenced by the Existing Note and the Additional
Subordinated Loans shall be evidenced by a promissory note (the " Note"),
substantially in the form of Exhibit C hereto, in the amount of $40,000,000. 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.
Section 2.4 Interest.Section 2.4 Interest. Interest shall accrue and
be payable on the unpaid balance of the Note as provided therein.
Section 2.5 Principal Payments. The principal amount of the Note
shall be payable as provided therein.Section 2.5 Principal Payments. The
principal amount of the Note shall be payable as provided therein.
Section 2.6 Use of Proceeds. Section 2.6 Use of Proceeds. The
proceeds of the Additional Subordinated Loans shall be used for the Borrower's
working capital needs in a manner not inconsistent with the terms of the Loan
Documents.
Section 2.7 Subordination. Payment of the obligations of the
Borrower to the Lender evidenced by the Note or otherwise for principal and
interest under this Agreement is subordinated to payment of all obligations of
the Borrower to the Lender and certain other lenders who are parties to the
Warehousing Agreement pursuant to that certain Subordination Agreement dated as
of October 14, 1999 made by the Lender in favor of such lenders.
ARTICLE III
CONDITIONS PRECEDENT
ARTICLE III CONDITIONS PRECEDENT
Section 3.1 Conditions of the Initial Additional Subordinated
Loan.Section 3.1 Conditions of the Initial Additional Subordinated Loan. The
obligation of the Lender to make
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the initial Additional Subordinated Loan hereunder shall be subject to the prior
or simultaneous fulfillment of each of the following conditions:
3.1 (a) Documents.3.1 (a) Documents. The Lender shall have
received the following:
(i) The Note executed by a duly authorized officer (or
officers) of the Borrower and dated the Closing Date.
(ii) The Security Documents executed by duly authorized
officers of the Borrower, NCCC or NCRC, as applicable, and the
Agent.
(iii) The Equity Documents adopted by the Board of Directors
or executed by duly authorized officers of NCFC.
(iv) A letter agreement in form and substance satisfactory to
the Lender with respect to the Agent's security interests granted
pursuant to the Residual Security Agreement in Mortgage-backed
Securities sold to Saloman Brothers International, Limited, an
English corporation ("SBI"), and the rights of NCCC and NCRC under
repurchase agreements with SBI.
(v) Consent of the "Required Lenders" (as defined in the
Warehousing Agreement) to the transactions contemplated by the Loan
Documents.
(vi) Copies of the corporate resolutions of the Borrower,
NCFC, NCCC and NCRC authorizing the execution, delivery and
performance of the Loan Documents and the Equity Documents, and
containing an incumbency certificate showing the names and titles,
and bearing the signatures of, the officers of each of the Borrower,
NCFC, NCCC and NCRC authorized to execute the Loan Documents and the
Equity Documents to which it is a party, certified as of the Closing
Date by its Secretary or an Assistant Secretary.
(vii) Copies of the Articles or Certificate of Incorporation
of the Borrower, NCFC, NCCC and NCRC with all amendments thereto,
certified by the appropriate governmental official of the
jurisdiction of its incorporation as of a date not more than 10 days
prior to the Closing Date, or a certificate of either the Secretary
or an Assistant Secretary of each of them stating that there have
been no changes to its Articles or Certificate of Incorporation
since the date of the most recent certified copy thereof delivered
to the Lender.
(viii) Certificates of good standing for the Borrower, NCFC,
NCCC and NCRC in the jurisdictions of their incorporation, certified
by the appropriate
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governmental officials as of a date not more than 10 days prior to
the Closing Date.
(ix) Copies of the bylaws of the Borrower, NCFC, NCCC and NCRC
certified as of the Closing Date by their respective Secretaries or
Assistant Secretaries.
(x) The opinion of counsel to the Borrower covering such
matters as the Lender may request.
3.1 (b) Other Matters..1 (b) Other Matters. All organizational
and legal proceedings relating to the Borrower and all instruments and
agreements in connection with the transactions contemplated by this Agreement
shall be satisfactory in scope, form and substance to the Lender and its
counsel, and the Lender shall have received all information and copies of all
documents, including records of corporate proceedings, which it may reasonably
have requested in connection therewith, such documents where appropriate to be
certified by proper Borrower or governmental authorities.
3.1 (c) Fees and Expenses.3.1 (c) Fees and Expenses. The
Lender shall have received all fees and other amounts due and payable by the
Borrower on or prior to the Closing Date, including the reasonable fees and
expenses of counsel to the Lender payable pursuant to Section 7.2.
Section 3.2 Conditions Precedent to all Additional Subordinated
Loans. The obligations of the Lender to make each Additional Subordinated Loan
hereunder (including the initial Additional Subordinated Loan) shall be subject
to the fulfillment of the following conditions:
3.2(a) The representations and warranties contained in Article
IV shall be true and correct on and as of the Closing Date and on the date of
each Additional Subordinated Loan, with the same force and effect as if made on
such date.
3.2(b) No Default or Event of Default shall have occurred and
be continuing on the Closing Date and on the date of each Additional
Subordinated Loan, or will exist after giving effect to the Additional
Subordinated Loan made on such date.
3.2(c) As an additional condition to the making of the
Additional Subordinated Loan to be made between July 1, 2000 and September 30,
2000, the Origination Cost Percentage for all Mortgage Loans originated by the
Borrower between April 1, 2000 and June 30, 2000 shall not exceed 3%.
3.2(d) As an additional condition to the making of the
Additional Subordinated Loan to be made between October 1, 2000 and December 31,
2000, the Origination
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Cost Percentage for all Mortgage Loans originated by the Borrower between July
1, 2000 and September 30, 2000 shall not exceed 2.75%.
3.2(e) The Lender shall have received the Borrowers' request
for such Additional Subordinated Loan as required under Section 2.2, and, except
with respect to the initial Additional Subordinated Loan, the reports required
pursuant to Section 5.2(e) as of the end of the preceding fiscal quarter.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
ARTICLE IV REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender:
Section 4.1 Organization, Standing, Etc. Section 4.1 Organization,
Standing, Etc. Each of the Borrower, NCFC, NCCC and NCRC is a corporation duly
incorporated and validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to carry on its business as now conducted, to enter into the Loan
Documents and Equity Documents to which it is a party and to perform its
obligations thereunder. The Loan Documents and the Equity Documents have been
duly authorized by all necessary corporate action and when executed and
delivered will be the legal and binding obligations of the Borrower, NCFC, NCCC
or NCRC, as applicable. The execution and delivery of the Loan Documents and the
Equity Documents will not violate the Articles or Certificates of Incorporation
or bylaws of, or any law applicable to, the Borrower, NCFC, NCCC or NCRC, as
applicable. No governmental consent or exemption is required in connection with
the execution and delivery of the Loan Documents and the Equity Documents.
Section 4.2 Representations and Warranties in Warehousing Agreement.
Each of the representations and warranties set forth in Sections 3.01 through
3.16 of the Warehousing Agreement as in effect on the date hereof is true and
correct.
ARTICLE V
COVENANTS ARTICLE V COVENANTS
Until the Note and all of the Borrower's other obligations to the
Lender under this Agreement shall have been paid in full, unless the Lender
shall otherwise consent in writing:
Section 5.1 Financial Statements and Reports.Section 5.1 Financial
Statements and Reports. The Borrower will furnish to the Lender the financial
statements and reports required pursuant to Sections 4.01(a), (b), (e), (f),
(g), (h) and (i) of the Warehousing Agreement as in effect on the date hereof,
and in addition thereto:
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5.1 (a) As soon as practicable and in any event within 30 days
after the end of each March, June, September and December, a statement signed by
the chief financial officer of the Borrower stating that as at the end of such
fiscal quarter there did not exist any Default or Event of Default or, if such
Default or Event of Default existed, specifying the nature and period of
existence thereof and what action the Borrower proposes to take with respect
thereto, and, in the case of such statements for March, June and September,
2000, demonstrating compliance or non-compliance, as the case may be, with
Section 5.2 of this Agreement.
5.1 (b) Immediately upon any officer of the Borrower becoming
aware of any Default or Event of Default, a notice describing the nature thereof
and what action the Borrower proposes to take with respect thereto.
Section 5.2 Milestones.
5.2 (a) For the Borrower's fiscal quarter ended March 31,
2000, the Borrower shall have (i) reduced the number of officers and employees
of NCFC and its Subsidiaries by 10% since December 31, 1999, excluding, for this
purpose, Persons who became officers or employees of NCFC or a Subsidiary as a
result of the Borrower's acquisition of Worth Funding, Inc., and (ii) had a
Securitization Percentage of less than 50%.
5.2 (b) For the Borrower's fiscal quarter ended June 30, 2000,
the Borrower shall have (i) on or before May 1, 2000, implemented the Appraisal
Review Policy for its wholesale division, (ii) on or before June 1, 2000,
implemented the Automated Underwriting System for its wholesale division, (iii)
on or before June 30, 2000, proposed to the Lender (A) modifications to the
Appraisal Review Policy for its retail division, bringing such policies closer
to those for the wholesale division (in particular, with respect to "exclusion
criteria," "statistical screening" and "risk scoring"), and (B) quantitative
measurement criteria for the effectiveness of the Appraisal Review Policy, both
of which must be acceptable to the Lender, and (iv) had a Securitization
Percentage of less than 50%.
5.2 (c) For the Borrower's fiscal quarter ended September 30,
2000, the Borrower shall have (i) conducted its wholesale lending operations in
compliance with the Appraisal Review Policy, and satisfied the quantitative
measurement criteria described in clause (iii) of Section 5.2(b), (ii)
implemented the Automated Underwriting System and the Appraisal Review Policies
(as modified) for its retail lending operations, (iii) produced credit grades by
use of the Automated Underwriting System that, for at least 92.5% of the
Mortgage Loans originated or acquired by it through its wholesale division
during such quarter, match the credit grades required for such Mortgage Loans by
the Borrower's underwriting guidelines; (iv) with respect to all Mortgage Loans
originated or acquired by it during such quarter, included in its file for such
Mortgage Loan an explanation of any steps taken to verify the original appraisal
(such as a drive-by appraisal) and any change to appraised value as a result of
such steps; and (v) had a Securitization Percentage of less than 40%.
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5.2 (d) For each subsequent fiscal quarter of the Borrower,
the Borrower shall have (i) conducted its lending operations in compliance with
the Appraisal Review Policy, and satisfied the quantitative measurement criteria
described in clause (iii) of Section 5.2(b), (ii) produced credit grades by use
of the Automated Underwriting System that, for at least 95% of the Mortgage
Loans originated or acquired by it during such quarter, match the credit grades
required for such Mortgage Loans by the Borrower's underwriting guidelines;
(iii) with respect to all Mortgage Loans originated or acquired by it during
such quarter, included in its file for such Mortgage Loan an explanation of any
steps taken to verify the original appraisal (such as a drive-by appraisal) and
any change to appraised value as a result of such steps; and (iv) had a
Securitization Percentage of less than 50%.
5.2 (e) The Borrower shall report to the Lender in writing
regarding the Borrower's progress in implementing the Appraisal Review Policy
and the Automated Underwriting System, within 30 days after the end of each
month and at such other times as the Lender may reasonably request. The Borrower
shall certify its compliance with subsection 5.2(a), (b), (c) or (d) in writing,
delivered to the Lender no later than 30 days after the end of the relevant
fiscal quarter. Each such certification shall include a comparison of the
Borrower's actual performance with the relevant milestone. The Borrower's
compliance with subsections 5.2(a), (b), (c) and (d) may be verified by the
Lender through such visits, audits and inspections of the Borrower (by the
Lender or by third parties retained by the Lender) as the Lender may request.
All such visits, audits and inspections shall be at the Borrower's expense;
provided, that unless a Default or an Event of Default has occurred and is
continuing, the Borrower shall not be responsible for more than $50,000 of such
expenses.
Section 5.3 Warehouse Debt. The Borrower shall not, and shall not
permit any Subsidiary to, incur any Warehouse Debt, except (a) pursuant to the
Warehousing Agreement, and (b) Warehouse Debt permitted pursuant to Section
4.08(g) of the Warehousing Agreement as in effect on the date hereof.
Section 5.4 Inspections, Visitations, Etc. The Company will permit,
and will cause its Subsidiaries to permit, any Person designated by the Lender
in writing, at the Lender's expense, to visit and inspect any of the properties,
corporate books and financial records of the Company or such Subsidiaries and
discuss its affairs and finances with the principal officers of the Company or
such Subsidiaries and their independent public accountants, all at such times as
the Lender shall reasonably request.
Section 5.5 Warehousing Agreement Covenants. The Borrower shall
comply in all respects with the requirements of Sections 4.02 through 4.05 and
4.07 through 4.24 of the Warehousing Agreement.
ARTICLE VI
REMEDIES
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ARTICLE VI REMEDIES
Section 6.1 Remedies.Section 6.1 Remedies. If (a) any Event of
Default described in clause (2) of the definition thereof shall occur with
respect to the Borrower, the Commitment shall terminate and the Note and all
other obligations of the Borrower to the Lender under this Agreement shall
automatically become immediately due and payable, or (b) any other Event of
Default shall occur and be continuing, then the Lender may declare the
Commitment to be terminated and the Note and all other obligations of the
Borrower to the Lender under this Agreement to be forthwith due and payable,
whereupon the same shall immediately become due and payable, in each case
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in this Agreement or in the Note to the
contrary notwithstanding. Upon the occurrence of any of the events described in
clauses (a) or (b) of the preceding sentence the Lender may exercise all rights
and remedies under the Loan Documents
Section 6.2 Offset.Section 6.2 Offset. In addition to the remedies
set forth in Section 6.1, upon the occurrence of any Event of Default and
thereafter while the same be continuing, the Borrower hereby irrevocably
authorizes the Lender to set off all sums owing by the Borrower to the Lender
against all deposits and credits of the Borrower with, and any and all claims of
the Borrower against, the Lender.
ARTICLE VII
MISCELLANEOUS
ARTICLE VII MISCELLANEOUS
Section 7.1 Modifications.Section 7.1 Modifications. Notwithstanding
any provisions to the contrary herein, any term of this Agreement may be amended
with the written consent of the Borrower; provided that no amendment,
modification or waiver of any provision of this Agreement or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be in writing and signed by the Lender, and then such amendment,
modification, waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
Section 7.2 Costs and Expenses.Section 7.2 Costs and Expenses.
Whether or not the transactions contemplated hereby are consummated, the
Borrower agrees to reimburse the Lender upon demand for all reasonable
out-of-pocket expenses paid or incurred by the Lender (including filing and
recording costs and fees and expenses of Xxxxxx & Xxxxxxx LLP, counsel to the
Lender) in connection with the negotiation, preparation, approval, review,
execution, delivery, amendment, modification, interpretation, collection and
enforcement of the Loan Documents and the Equity Documents. The obligations of
the Borrower under this Section shall survive any termination of this Agreement.
Section 7.3 Waivers, etc.Section 7.3 Waivers, etc. No failure on the
part of the Lender or the holder of the Note to exercise and no delay in
exercising any power or right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any power or right preclude any other or
further exercise thereof or the exercise of any other power or right.
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The rights and remedies of the Lender hereunder are cumulative and not exclusive
of any right or remedy the Lender otherwise has.
Section 7.4 Notices.Section 7.4 Notices. Except when telephonic
notice is expressly authorized by this Agreement, any notice or other
communication to any party in connection with this Agreement shall be in writing
and shall be sent by manual delivery, telegram, telex, facsimile transmission,
overnight courier or United States mail (postage prepaid) addressed to such
party at the address specified on the signature page hereof, or at such other
address as such party shall have specified to the other party hereto in writing.
All periods of notice shall be measured from the date of delivery thereof if
manually delivered, from the date of sending thereof if sent by telegram, telex
or facsimile transmission, from the first Business Day after the date of sending
if sent by overnight courier, or from four days after the date of mailing if
mailed; provided, however, that any notice to the Lender under Article II hereof
shall be deemed to have been given only when received by the Lender.
Section 7.5 Successors and Assigns; Disposition of Loans.Section 7.5
Successors and Assigns; Disposition of Loans. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign its rights or
delegate its obligations hereunder without the prior written consent of the
Lender. The Lender may at any time sell, assign, transfer, grant participations
in, or otherwise dispose of any portion of the Note to banks or other financial
institutions. The Lender may disclose any information regarding the Borrower in
the Lender's possession to any prospective buyer or participant.
Section 7.6 Governing Law and Construction.Section 7.6 Governing Law
and Construction. THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY THE INTERNAL LAWS OF
THE STATE OF MINNESOTA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES
THEREOF, BUT GIVING EFFECT TO FEDERAL LAWS OF THE UNITED STATES APPLICABLE TO
NATIONAL BANKS.
Section 7.7 Consent to Jurisdiction.Section 7.7 Consent to
Jurisdiction. AT THE OPTION OF THE LENDER, THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY BE ENFORCED IN ANY FEDERAL COURT OR MINNESOTA STATE COURT SITTING
IN HENNEPIN OR XXXXXX COUNTY, MINNESOTA; AND THE BORROWER CONSENTS TO THE
JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN
SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT THE BORROWER COMMENCES ANY ACTION IN
ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY ARISING DIRECTLY
OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS AGREEMENT, THE LENDER AT ITS
OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF THE
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JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
Section 7.8 Waiver of Jury Trial. EACH OF THE BORROWER AND THE
LENDER IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTE AND ANY OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 7.9 Captions.Section 7.9 Captions. The captions or headings
herein and any table of contents hereto are for convenience only and in no way
define, limit or describe the scope or intent of any provision of this
Agreement.
Section 7.10 Entire Agreement.Section 7.10 Entire Agreement. This
Agreement and the other Loan Documents embody the entire agreement and
understanding between the Borrower and the Lender with respect to the subject
matter hereof and thereof. This Agreement supersedes all prior agreements and
understandings relating to the subject matter hereof.
Section 7.11 Counterparts.Section 7.11 Counterparts. This Agreement
may be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument, and either of the parties hereto may
execute this Agreement by signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NEW CENTURY MORTGAGE
CORPORATION
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Print Name
---------------------------
Title EVP/COO
--------------------------------
Borrower's Address:
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Chairman
Fax: 000-000-0000
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxxxx
----------------------------------
Print Name
---------------------------
Title
--------------------------------
Lender's Address:
U.S. Bank National Association
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
Vice President
Fax: 000-000-0000
[Signature Page to Subordinated Loan Agreement]
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