EXHIBIT 10.2
AMENDED AND RESTATED
GUARANTEE
AMENDED AND RESTATED GUARANTEE,
dated as of November 10, 2006, made by New Century Financial
Corporation (the “ Guarantor ”), on behalf of
New Century Mortgage Corporation, (“NCMC”), NC Capital
Corporation (“NCCC”), NC Asset Holding, L.P.
(“NCAH”), New Century Credit Corporation (“New
Century”), Home123 Corporation (“Home123” and,
together with NCMC, NCCC, NCAH and New Century, the
“Sellers”), in favor of IXIS Real Estate Capital Inc.
(“ IXIS ”), a party to the Repurchase Agreement
and the Custodial Agreement, each referred to below.
RECITALS
The Guarantor made a Guarantee on
behalf of NCMC, NCCC, NCAH and New Century in favor of IXIS, dated
as of September 29, 2004 (as amended from time to time, the
“Existing Guarantee” and, as amended by this Amended
and Restated Guarantee, the “Guarantee”).
Pursuant to that certain Fifth
Amended and Restated Master Repurchase Agreement, dated as of
November 10, 2006 (as amended, supplemented or otherwise
modified from time to time, the “ Repurchase Agreement
”), between IXIS and the Sellers, the Sellers have agreed to
sell, from time to time, to IXIS certain mortgage loans (the
“ Mortgage Loans ”) as whole loans upon the
terms and subject to the conditions set forth therein. The
Guarantor owns directly and indirectly all interests in the
Sellers. Pursuant to the terms of that certain Amended and Restated
Custodial and Disbursement Agreement, dated as of November 10,
2006 (the “ Custodial Agreement ”, and
collectively with the Repurchase Agreement, the “
Agreements ”), Deutsche Bank National Trust Company
(the “ Custodian ”) is required to take
possession of the Mortgages and the Mortgage Notes, along with
certain other documents specified in the Agreements, as the
Custodian of IXIS and any future purchaser, on several delivery
dates, in accordance with the terms and conditions of the Custodial
Agreement. It is a condition precedent to the obligation of IXIS to
purchase the Mortgage Loans under the Repurchase Agreement that the
Guarantor shall have executed and delivered this Guarantee with
respect to any and all prior and future representations,
warranties, covenants and other obligations (collectively, the
“ Obligations ”) of the Sellers with respect to
IXIS under each of the Repurchase Agreement and the Custodial
Agreement.
NOW, THEREFORE, in consideration of
the premises and to induce IXIS to enter into the Repurchase
Agreement and the Custodial Agreement, the Guarantor hereby agrees,
for the benefit of IXIS, as follows:
1. Defined Terms .
(a) Unless otherwise defined
herein, terms defined in the Repurchase Agreement and used herein
shall have the meanings given to them in the Repurchase
Agreement.
(b) The words
“hereof,” “herein” and
“hereunder” and words of similar import when used in
this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and section and
paragraph references are to this Guarantee unless otherwise
specified.
(c) The meanings given to terms
defined herein shall be equally applicable to both the singular and
plural forms of such terms.
2. Guarantee .
(a) The Guarantor hereby,
unconditionally and irrevocably, guarantees, for the benefit of
IXIS and its successors, indorsees, transferees and assigns, the
prompt and complete payment and performance by the Sellers when
such payment is due or performance required in accordance with the
Obligations.
(b) Anything herein to the
contrary notwithstanding, the maximum liability of the Guarantor
hereunder shall in no event exceed the amount which can be
guaranteed by the Guarantor under applicable federal and state laws
relating to the insolvency of the debtors.
(c) The Guarantor further agrees
to pay any and all expenses (including, without limitation, all
fees and disbursements of counsel) which may be paid or incurred by
IXIS in enforcing, or obtaining advice of counsel in respect of,
any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the
Obligations are performed and/or paid in full and the Agreements
are terminated, notwithstanding that from time to time prior
thereto the Sellers may be free from any Obligations.
(d) No actions or payments made
by the Sellers, the Guarantor, any other guarantor or any other
Person or received or collected by IXIS from the Sellers, the
Guarantor, any other guarantor or any other Person by virtue of any
action or proceeding or any set-off or appropriation or application
at any time or from time to time in reduction of or in payment of
the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder which
shall, notwithstanding any such payment or payments other than
payments made by the Guarantor in respect of the Obligations or
payments received or collected from the Guarantor in respect of the
Obligations, remain liable for the Obligations hereunder until the
Obligations are paid in full and the Agreements are terminated.
(e) The Guarantor agrees that
whenever, at any time, or from time to time, it shall make any
payment to IXIS on account of its liability hereunder, it will
notify IXIS in writing that such payment or performance is made
under this Guarantee for such purpose.
3. Right of Set-off .
The Guarantor hereby irrevocably authorizes IXIS at any time and
from time to time without notice to the Guarantor, any such notice
being expressly waived by the Guarantor, to set-off and appropriate
and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured,
at any time held or owing by IXIS to or for the credit or the
account of the Guarantor, or any part thereof in such amounts as
IXIS may elect, against and on account of the obligations and
liabilities of the Guarantor to IXIS hereunder and claims of every
nature and description of IXIS against the Guarantor, in any
currency, whether arising hereunder, or otherwise, as IXIS may
elect, whether or not IXIS has made any demand for payment and
although such obligations, liabilities and claims may be contingent
or unmatured. IXIS shall notify the Guarantor promptly of any such
set-off and the application made by IXIS, provided that the
failure to give such notice shall not affect the validity of such
set-off and application. The rights of IXIS under this Section are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) which IXIS may otherwise
have.
4. No Subrogation .
Notwithstanding any payment or payments made by the Guarantor
hereunder or any set off or application of funds of the Guarantor
by IXIS, the Guarantor shall not be entitled to be subrogated to
any of the rights of IXIS against the Sellers or any other
guarantor or any collateral security or guarantee or right of
offset held by IXIS for the payment of the Obligations, nor shall
the Guarantor seek or be entitled to seek any contribution or
reimbursement from the Sellers or any other guarantor in respect of
any payments made by the Guarantor hereunder, until all amounts
owing to IXIS are paid in full and the Agreements are terminated.
If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time when all of the Obligations shall
not have been paid in full, such amount shall be held by the
Guarantor in trust for IXIS segregated from other funds of the
Guarantor, and shall, forthwith upon receipt by the Guarantor, be
turned over to IXIS, in the exact form received by the Guarantor
(duly indorsed by the Guarantor to IXIS, if required), to be
applied against the Obligations, whether matured or unmatured, in
such order as IXIS may determine.
5. Amendments, etc. with
respect to the Obligations; Waiver of Rights . The Guarantor
shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantor and without notice to
or further assent by the Guarantor, any demand for repurchase or
other performance or payment under any of the Obligations made by
IXIS may be rescinded by such party and any of the Obligations
continued, and the Obligations, or the liability of any other party
upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or
released by IXIS, and the Agreements and any other documents
executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as IXIS
may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by IXIS for the
payment of the Obligations may be sold, exchanged, waived,
surrendered or released. IXIS shall have no obligation to protect,
secure, perfect or insure any lien at any time held by it as
security for the Obligations or for this Guarantee or any property
subject thereto. When making any demand hereunder against the
Guarantor, IXIS may, but shall be under no obligation to, make a
similar demand on the Sellers or any other guarantor, and any
failure by IXIS to make any such demand or to collect any payments
from the Sellers or any such other guarantor or any release of the
Sellers or such other guarantor shall not relieve the Guarantor of
its obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a matter
of law, of IXIS against the Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance
of any legal proceedings.
6. Guarantee Absolute and
Unconditional . The Guarantor waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations
and notice of or proof of reliance by IXIS upon this Guarantee or
acceptance of this Guarantee, and any creation, renewal extension
or accrual of any of the Obligations, shall conclusively be deemed
to have been c
