Exhibit 10.95
FIRST AMENDMENT TO
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FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
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AND SERVICING SECURITY AGREEMENT
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THIS FIRST AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
(the "Amendment") dated as of December ___, 2001 by and among by and among NEW
CENTURY MORTGAGE CORPORATION, a California corporation ("NCMC" or "Borrower"),
NC CAPITAL CORPORATION, a California corporation ("NCCC" or "Borrower" and
together with NCMC, the "Borrowers"), the lenders from time to time party hereto
(each a "Lender" and collectively, the "Lenders"), and U.S. BANK NATIONAL
ASSOCIATION, as agent for the Lenders (in such capacity, together with any
successor agents appointed hereunder, the "Agent").
WITNESSETH THAT:
WHEREAS, the Company, the Lenders and the Agent are parties to a Fifth
Amended and Restated Credit Agreement dated as of May 23, 2001 (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
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being defined herein that is defined in the Credit Agreement shall have the
meaning given to it therein.
2. Amendments to Credit Agreement. Section 4.13 of the Credit
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Agreement is hereby amended in its entirety to read as follows:
4.13 Restricted Payments. NCFC and NCMC will not make any
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Restricted Payments, other than (a) dividends paid by NCFC on its
Series 1998A Convertible Preferred Stock and its Series 1999A
Convertible Preferred Stock in an aggregate amount not to exceed
$3,000,000 per annum, (b) dividends paid by NCFC on its Common Stock
not to exceed $0.20 per share in any calendar year, and (c) dividends
paid by NCMC to NCFC to enable NCFC to pay dividends as provided in
clauses (a) and (b) above; provided, that in each case both before and
after giving effect to such dividends, NCFC and NCMC are in compliance
with the covenants set forth in Section 4 of this Agreement and no
Event of Default or Unmatured Event of Default has occurred and is
continuing.
3. Conditions to Effectiveness of this Amendment. This Amendment shall
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become effective when the Agent shall have received counterparts of this
Amendment, duly executed by the Company and the Required Lenders, 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, and of NCFC in Section
15 of the 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.
(c) No material adverse change in the business, assets,
financial condition or prospects of the Company or NCFC shall have
occurred since December 31, 2000.
(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) a Reaffirmation of NCFC Guaranty duly executed by NCFC;
and
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(v) such other documents, instruments, opinions and approvals
as the Agent may reasonably request.
5. Acknowledgments. The Company and each Lender acknowledge that, as
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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.
6. General.
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(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
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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 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.
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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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT
NC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: PRESIDENT
U.S. BANK NATIONAL ASSOCIATION
By:__________________________________
Name:
Title:
GUARANTY BANK
By:__________________________________
Name:
Title:
RESIDENTIAL FUNDING CORPORATION
By:__________________________________
Name:
Title:
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:__________________________________
Name:
Title:
NC CAPITAL CORPORATION
By:__________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
GUARANTY BANK
By:__________________________________
Name:
Title:
RESIDENTIAL FUNDING CORPORATION
By:__________________________________
Name:
Title:
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:__________________________________
Name:
Title:
NC CAPITAL CORPORATION
By:__________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: ________________________________
Name:
Title:
GUARANTY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SR. VICE PRESIDENT
RESIDENTIAL FUNDING CORPORATION
By:__________________________________
Name:
Title:
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:__________________________________
Name:
Title:
NC CAPITAL CORPORATION
By:__________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By: ________________________________
Name:
Title:
GUARANTY BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SR. VICE PRESIDENT
RESIDENTIAL FUNDING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
WASHINGTON MUTUAL BANK, FA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: First Vice President,
Mortgage Banker Fianance
CDC MORTGAGE CAPITAL INC.
By:_____________________________________
Name:
Title: Director
By:_____________________________________
Name:
Title: Director
WASHINGTON MUTUAL BANK, FA
By:_____________________________________
Name:
Title:
CDC MORTGAGE CAPITAL INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: MANAGIMG DIRECTOR
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
REAFFIRMATION OF NCFC GUARANTY
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: EXECUTIVE VICE PRESIDENT