EXHIBIT 10.2
AMENDED AND RESTATED
GUARANTY
AMENDED AND RESTATED GUARANTY, dated
as of January 31, 2007 (as amended, supplemented, or otherwise
modified from time to time, this “ Guaranty ”),
made by New Century Financial Corporation a Maryland Corporation
having offices at 18400 Von Karman Ave., Suite 1000, Irvine,
CA 92612 (the “ Guarantor ”), in favor of Credit
Suisse First Boston Mortgage Capital, LLC (the “ Buyer
”).
RECITALS
The Guarantor made that certain
Corporate Guaranty in favor of the Buyer, dated as of December 22,
2004 (as amended through the date hereof, the “ Existing
Corporate Guaranty ”).
The Guarantor has requested that the
Existing Corporate Guaranty be amended and restated on the terms
and conditions set forth herein.
Accordingly, the parties hereby
agree, in consideration of the mutual premises and mutual
obligations set forth herein, that the Existing Corporate Guaranty
is hereby amended and restated as set forth herein.
WHEREAS, pursuant to the Amended and
Restated Master Repurchase Agreement, dated as of January 31, 2007
(as amended, supplemented or otherwise modified from time to time,
the “ Repurchase Agreement ”), among New Century
Mortgage Corporation, NC Capital Corporation, NC Asset Holding,
L.P., New Century Credit Corporation, Loan Partners Mortgage, Ltd.,
Kingston Mortgage Company, Ltd., Compufund Mortgage Company, Ltd.,
Peachtree Residential Mortgage, L.P., Residential Prime Lending
Limited Partnership, Team Home Lending, Ltd., Sutter Buttes
Mortgage, L.P., Austin Mortgage, L.P., Capital Pacific Home Loans,
L.P., Home123 Corporation and New Century Mortgage Ventures, LLC
(the “ Sellers ”) and the Buyer, the Buyer has
agreed from time to time to enter into transactions in which the
Sellers agree to transfer to the Buyer Purchased Assets against the
transfer of funds by the Buyer, with a simultaneous agreement by
the Buyer to transfer to the Sellers such Purchased Assets at a
date certain or on demand, against the transfer of funds by the
Sellers. Each such transaction shall be referred to herein as a
“ Transaction ”. It is a condition precedent to
the obligation of the Buyer to enter into Transactions under the
Repurchase Agreement that the Guarantor shall have executed and
delivered this Guaranty to the Buyer; and
WHEREAS, it is in the best interest
of the Guarantor to enter into this Guaranty and the Guarantor
shall receive substantial benefit from the Transactions.
NOW, THEREFORE , in consideration
of the foregoing premises, to induce the Buyer to enter into the
Repurchase Agreement and to enter into Transactions thereunder, the
Guarantor hereby agrees with the Buyer, as follows:
1. Defined Terms .
(a) Unless otherwise defined herein, terms which are defined
in the Repurchase Agreement and used herein are so used as so
defined.
(b) For purposes of this
Guaranty, “Obligations” shall mean all obligations and
liabilities of the Sellers to the Buyer, whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, or out of or
in connection with the Repurchase Agreement and any other Program
Agreements and any other document made, delivered or given in
connection therewith or herewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs,
expenses (including, without limitation, all fees and disbursements
of counsel to the Buyer that are required to be paid by a party to
the Transaction pursuant to the terms of the Program Agreements) or
otherwise.
2. Guaranty .
(a) The Guarantor hereby unconditionally and irrevocably
guarantees to the Buyer the prompt and complete payment and
performance by the Sellers when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) 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 the Buyer 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 Guaranty. This
Guaranty shall remain in full force and effect until the later of
(i) the termination of the Repurchase Agreement or (ii) the
Obligations are paid in full, notwithstanding that from time to
time prior thereto the Sellers may be free from any
Obligations.
(c) No payment or payments made
by any Seller or any other Person or received or collected by the
Buyer from any Seller 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, remain liable for the
amount of the Obligations until the Obligations are paid in
full.
(d) The Guarantor agrees that
whenever, at any time, or from time to time, the Guarantor shall
make any payment to the Buyer on account of the Guarantor’s
liability hereunder, the Guarantor will notify the Buyer in writing
that such payment is made under this Guaranty for such purpose.
3. Right of Set-off .
The Buyer is hereby irrevocably authorized at any time and from
time to time without notice to the Guarantor, any such notice being
hereby waived by the Guarantor, to set off and appropriate and
apply any and all monies and other property of the Guarantor,
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 the Buyer of any affiliate thereof to or for the credit or
the account of the Guarantor, or any part thereof in such amounts
as the Buyer may elect, on account of the Obligations and
liabilities of the Guarantor hereunder and claims of every nature
and description of the Buyer against the Guarantor, in any
currency, whether arising hereunder, under the Repurchase Agreement
or otherwise, as the Buyer may elect, whether or not the Buyer has
made any demand for payment and although such Obligations and
liabilities and claims may be contingent or unmatured. The Buyer
shall notify the Guarantor promptly of any such set-off and the
application made by the Buyer, provided that the failure to give
such notice shall not affect the validity of such set-off and
application. The rights of the Buyer under this paragraph are in
addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Buyer may have.
4. Subrogation .
Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor
by the Buyer, the Guarantor shall not be entitled to be subrograted
to any of the rights of the Buyer against any Seller or any other
guarantor or any collateral security or guarantee or right of
offset held by the Buyer 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
payments made by the Guarantor hereunder, until all amounts owing
to the Buyer by the Sellers on account of the Obligations are paid
in full and the Repurchase Agreement is 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 amounts shall be held by the Guarantor in trust
for the Buyer, segregated from other funds of the Guarantor, and
shall, forthwith upon receipt by the Guarantor, be turned over to
the Buyer in the exact form received by the Guarantor (duly
indorsed by the Guarantor to the Buyer, if required), to be applied
against the Obligations, whether matured or unmatured, in such
order as the Buyer may determine.
5. Amendments, etc. with
Respect to the Obligations . 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 payment of any of the
Obligations made by the Buyer may be rescinded by the Buyer, 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 the Buyer, and the Repurchase
Agreement, and the other Program Agreements and any other document
in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Buyer may deem advisable
from time to time, and any collateral security, guarantee or right
of offset at any time held by the Buyer for the payment of the
Obligations may be sold, exchanged, waived, surrendered or
released. The Buyer 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 Guaranty or any property subject
thereto. When making any demand hereunder against the Guarantor,
the Buyer may, but shall be under no obligation to, make a similar
demand on any or all of the Sellers and any failure by the Buyer to
make any such demand or to collect any payments from any Seller or
any release of the Sellers 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 the Buyer against the Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance
of any legal proceedings.
6. Guaranty Absolute and
Unconditional . (a) 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 the Buyer upon
this Guaranty or
