WARRANT ISSUANCE AGREEMENT
This Warrant Issuance Agreement dated as of April 28, 2000 is made
by and among New Century Financial Corporation, a Delaware corporation (the
"Company"), U.S. Bancorp, a Delaware corporation ("USB"), and U.S. Bank National
Association, a national banking association and a wholly owned subsidiary of USB
("US Bank").
WHEREAS, the Company proposes to issue warrants as hereinafter
described (the "Warrants") to purchase up to 725,000 shares (the "Warrant
Shares") of the Company's Common Stock, $.01 par value per share (the "Common
Stock"), in connection with the Subordinated Loan Agreement dated as of April
28, 2000 (the "Subordinated Loan Agreement") by and between US Bank and New
Century Mortgage Corporation ("NCMC");
WHEREAS, the Company has taken all necessary action to permit the
issuance of the Warrants and the issuance of the Warrant Shares issuable upon
exercise or conversion of the Warrants; and
WHEREAS, the parties hereto desire to provide for the issuance of
the Warrants to US Bank as herein provided and to set forth certain agreements
of the Company in connection with the issuance of the warrants and other matters
relating to its Common Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to the definitions set forth
elsewhere herein, as used herein:
"Agreement" shall mean this Warrant Issuance Agreement.
"Expiration Date" shall mean 5:00 p.m., Minneapolis time, on April
28, 2005.
"First Funding Date" shall mean such date, if any, during the second
calendar quarter of 2000 that US Bank advances funds to NCMC pursuant to the
Subordinated Loan Agreement.
"Preferred Stock" shall mean the Company's Series 1998A Convertible
Preferred Stock and/or the Company's Series 1999A Convertible Preferred Stock.
"Registered Holder" or "Holder" shall mean the person in whose name
any Warrant Certificate shall be registered on the books maintained by the
Company.
"Second Funding Date" shall mean such date, if any, during the third
calendar quarter of 2000 that US Bank advances funds to NCMC pursuant to the
Subordinated Loan Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Third Funding Date" shall mean such date, if any, during the fourth
calendar quarter of 2000 that US Bank advances funds to NCMC pursuant to the
Subordinated Loan Agreement.
"Warrant Certificate" shall mean the certificates representing the
Warrants issued as herein provided.
"Warrants" shall mean the Warrants issued pursuant to this
Agreement.
ARTICLE II
ISSUANCE OF WARRANTS; WARRANT CERTIFICATES
Section 2.1 Issuance of Warrants. Subject to the conditions and on
the terms specified herein, the Company shall issue Warrants as follows:
(a) On the date hereof, the Company shall issue to US Bank Warrants
to purchase 650,000 Warrant Shares at an exercise price of $9.5625 per Common
Share with vesting to be in accordance with the following schedule:
Number of Warrant Shares Vesting Date
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518,750 shares On the date hereof
43,750 shares July 1, 2000
43,750 shares October 1, 2000
43,750 shares January 1, 2001
Notwithstanding the foregoing, with respect to Warrants vesting after the
date hereof, such Warrants will not vest nor be exercisable if as of the
relevant vesting date NCMC has repaid all amounts owed to US Bank pursuant to
the Subordinated Loan Agreement and the Second Amended and Restated Subordinated
Promissory Note dated as of April 28, 2000 made by NCMC to US Bank. Warrants
that fail to vest on the applicable vesting date in accordance with the
immediately preceding sentence shall terminate as of such date and shall be of
no further force and effect.
(b) On the First Funding Date, the Company shall issue to US Bank
Warrants to purchase that number of Warrant Shares equal to the product of (i)
75,000 times (ii) a fraction
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equal to the amount funded by US Bank under the Subordinated Loan Agreement on
such date divided by $10 million.
(c) On the Second Funding Date, the Company shall issue to US Bank
Warrants to purchase that number of Warrant Shares equal to the product of (i)
75,000 times (ii) a fraction equal to the amount funded by US Bank under the
Subordinated Loan Agreement on such date divided by $10 million.
(d) On the Third Funding Date, the Company shall issue to US Bank
Warrants to purchase that number of Warrant Shares equal to the product of (i)
75,000 times (ii) a fraction equal to the amount funded by US Bank under the
Subordinated Loan Agreement on such date divided by $10 million.
Section 2.2 Warrant Certificates. The Company shall execute and
deliver the Warrant Certificates in accordance with the terms of, and subject to
the conditions contained in, Section 2.1. The Warrant Certificates for Warrants
issued pursuant to Section 2.1(a) shall be substantially as set forth in Exhibit
A hereto and Warrants issued pursuant to Sections 2.1(b), (c) and (d) shall be
substantially as set forth in Exhibit B hereto. Such Warrant Certificates may
have such legends, summaries or endorsements printed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Agreement. The Warrant Certificates shall be dated as of the date of their
issuance.
Section 2.3 Warrant Terms and Conditions. The Warrants shall have
the terms and shall be subject to the conditions set forth herein and in the
form of Warrant Certificate attached hereto as Exhibit A or Exhibit B, as
applicable. The exercise price per Warrant Share for any Warrant issued pursuant
to Section 2.1(b), (c) or (d) hereof shall be equal to the closing price per
share of Common Stock as reported on the Nasdaq Stock Market on the trading date
immediately preceding the First Funding Date, the Second Funding Date or the
Third Funding Date, respectively.
Section 2.4 Execution of Warrant Certificates. The Warrants shall be
executed on behalf of the Company by a duly authorized officer of the Company.
ARTICLE III
EXERCISE OR CONVERSION OF WARRANTS
Section 3.1 Exercise or Conversion. Any or all of the Warrants
represented by each Warrant Certificate which have vested pursuant to Section
2.1 may be exercised or converted, upon the terms and subject to the conditions
set forth herein and in such Warrant Certificate, at any time on or after the
date of such Warrant and before the Expiration Date. Each Warrant not exercised
or converted on or before the Expiration Date shall thereupon become void and
all rights of the Holder thereunder and under this Agreement shall cease. In the
event that less than all of the Warrants evidenced by a Warrant Certificate
surrendered upon the exercise of Warrants are exercised at any time prior to the
Expiration Date, a new Warrant
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Certificate or Certificates will be issued for the remaining number of Warrants
evidenced by the Warrant Certificate so surrendered.
Section 3.2 Time of Exercise or Conversion. Each exercise or
conversion of Warrants shall be deemed to have been effective immediately prior
to the close of business on the business day on which the Warrant Certificate
relating to such Warrant shall have been surrendered as provided in Section 3.1
and in such Warrant Certificate. Thereafter, the Holder shall have, with respect
to the Warrant Shares purchased or otherwise acquired upon exercise or
conversion, all the rights and obligations of any other stockholder of the
Company holding Common Stock.
ARTICLE IV
CERTAIN OBLIGATIONS OF THE COMPANY
Section 4.1 Performance by the Company.
(a) The Company has reserved and shall at times keep reserved, out
of the authorized and unissued capital stock of the Company, such number of
Warrant Shares sufficient to provide for the exercise of the rights of purchase
represented by all Warrants issued pursuant to this Agreement. The Company shall
authorize and direct the transfer agent for the Common Stock (and any successor
thereto, the "Transfer Agent") at all times to reserve such number of Warrant
Shares as may be issuable upon exercise of outstanding Warrants under this
Agreement. The Company shall provide a copy of this Agreement and each Warrant
Certificate issued hereunder to the Transfer Agent. The Company shall, at its
expense, use its best efforts to cause the Warrant Shares to be listed (subject
to official notice of issuance) on the Nasdaq Stock Market and such other stock
exchanges, if any, or markets on which the Common Stock may become listed from
and after the date of issuance of such Warrants through the Expiration Date.
(b) The Company will not, by any voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Agreement or the
Warrant Certificate, but will at all times in good faith assist in the carrying
out of all such terms. Without limiting the generality of the foregoing, the
Company (i) shall take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue the Warrant Shares upon the
exercise of all Warrants from time to time outstanding, and (ii) will not (A)
transfer all or substantially all of its properties and assets to any other
person or entity, (B) consolidate with or merge into any other entity where the
Company is not the surviving entity, or (C) permit any other entity to
consolidate with or merge into the Company, where the Company is not the
surviving entity, where in connection with such transfer, consolidation or
merger, the Warrant Shares then issuable upon the exercise of the Warrant shall
be changed into or exchanged for shares or other securities or property of any
other entity unless, in any such case, the other entity acquiring such
properties and assets, continuing or surviving after such consolidation or
merger or issuing or distributing such shares or other securities or property,
as the case may be, shall expressly assume in writing and be bound by all the
terms of this Agreement and the Warrant Certificates.
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Section 4.2 Repurchase or Redemption of Common Stock. The Company
will not repurchase or otherwise redeem outstanding shares of its Common Stock
if such repurchase or redemption would cause USB's ownership of Common Stock
(assuming conversion of all shares of Preferred Stock) to exceed 24.99% of the
outstanding shares of Common Stock, without the consent of USB, unless or until
the Company has made provision to redeem or otherwise repurchase a sufficient
number of shares of the Preferred Stock or Common Stock then held by USB such
that USB's ownership of Common Stock (assuming conversion of all shares of
Preferred Stock) does not exceed 24.99% of the outstanding shares of Common
Stock.
Section 4.3 No Predatory Lending. For so long as USB owns any of the
Preferred Stock or Common Stock of the Company, (i) the Company will not, and
will not allow NCMC or any other subsidiary, to engage in any "predatory
behaviors" (as defined in that certain letter dated April 4, 2000 from USB to
the Company), and (ii) the Company will provide USB with a quarterly report, on
or as soon as reasonably practicable after the last business day of each fiscal
quarter, regarding the Company's and its subsidiaries' adherence to
non-predatory lending practices during that fiscal quarter.
Section 4.4 Cooperation; Further Assurances. The Company shall
cooperate with USB and use its commercially reasonable efforts to take such
actions, or to cause to be made such amendments to this Agreement and the
agreements and certificates referred to herein, as may be reasonably requested
by USB as necessary, proper or advisable under applicable regulations, policies
and guidelines of the Board of Governors of the Federal Reserve System, the
Office of the Comptroller of the Currency or other applicable bank regulatory
authority.
ARTICLE V
CERTAIN OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANT CERTIFICATES
Section 5.1 No Rights of Holders of Common Stock. The Warrant
Certificates shall be issued in registered form only. No Warrant Certificate
shall entitle the Holder thereof to any of the rights of a holder of Common
Stock of the Company, including, without limitation, the right to vote, to
receive other distributions, to elect directors of the Company or to receive
notice of or to attend the meetings of stockholders or any other proceeding of
the Company.
Section 5.2 Loss, Theft, Destruction or Mutilation of Warrant
Certificates. In case any of the Warrant Certificates shall be lost, stolen,
destroyed or mutilated, the Company will issue and deliver in exchange and
substitution for and upon cancellation of the mutilated Warrant Certificate, or
in lieu of and substitution for the Warrant Certificate lost, stolen or
destroyed, a new Warrant Certificate of like tenor and representing an
equivalent right or interest, but (a) in the case of such loss, theft or
destruction, only upon receipt of evidence satisfactory to the Company of such
loss, theft or destruction of such Warrant Certificate and indemnity, if
requested, also satisfactory to it or (b) in the case of any such mutilation,
only upon surrender to and cancellation by the Company of such Warrant
Certificate.
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ARTICLE VI
TRANSFER AND EXCHANGE OF WARRANT CERTIFICATES
Section 6.1 Transfer or Exchange of Warrant Certificates. The
Warrants, the rights thereunder and the Warrant Shares may be sold, transferred
or otherwise disposed of or in any manner transferred upon the books of the
Company, in whole or in part, (a) to a successor to US Bank or any affiliate of
US Bank and (b) to any other person or entity, subject to the requirements of
the Securities Act and any applicable state securities law. Any such transfer
may be made at the principal office of the Company by the Holder of such Warrant
in person or by duly authorized attorney, upon surrender of the Warrant properly
endorsed. Upon surrender for transfer or exchange of any Warrant Certificate,
properly endorsed, to the Company, the Company will issue and deliver to or upon
the order of the Holder thereof a new Warrant Certificate of like tenor, in the
name of such Holder or as such Holder (upon payment by such Holder of any
applicable transfer taxes) may direct. Any Warrant Certificate surrendered for
transfer or exchange shall be canceled by the Company.
ARTICLE VII
REGISTRATION RIGHTS
Section 7.1 Registration Rights Agreement. The Warrant Shares shall
be subject to the registration rights as set forth in that Amended and Restated
Registration Rights Agreement dated as of April 28, 2000 (the "Registration
Rights Agreement") by and between USB and the Company (subject in all cases to
any restrictions or limitations set forth in Section 9 thereof).
ARTICLE VIII
OTHER MATTERS
Section 8.1 Successors and Assigns. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the Holder shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 8.2 Notices. Any notice or demand authorized by this
Agreement to be given or made by the Holder of any Warrant Certificate to the
Company shall be sufficiently given or made if sent by first-class or registered
mail, postage prepaid, addressed as follows:
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New Century Financial Corporation
00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: 000-000-0000
Any notice pursuant to this Agreement to be given or made by the
Company to the Holder of any Warrant shall be sufficiently given or made (unless
otherwise specifically provided for herein) if sent by first-class or registered
mail, postage prepaid, addressed to said registered Holder at his or her address
appearing on the Warrant register.
Section 8.3 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of Delaware.
Section 8.4 No Benefits Conferred. Nothing in this Agreement
expressed and nothing that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon, or to give to any person or
entity other than the Company, USB and the Holders of Warrant Certificates any
legal or equitable right, remedy or claim under or by reason of this Agreement,
or of any covenant, condition, stipulation, promise or agreement herein; and all
covenants, conditions, stipulations, promises and agreements in this Agreement
shall be for the sole and exclusive benefit of the Company and its successors,
USB and its successors and the Holders of Warrant Certificates and the
Registrable Securities (as defined in the Registration Rights Agreement).
Section 8.5 Counterparts. This Agreement may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 8.6 Headings. The descriptive headings used in this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, all as of the day and year first above written.
NEW CENTURY FINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
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Its: EVP
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U.S. BANCORP
By: /s/ Xxxxx Xxxxxxx
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Its:
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxxx
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Its:
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