EXHIBIT 10.14
GUARANTY AND PLEDGE AGREEMENT
THIS GUARANTY AND PLEDGE AGREEMENT, dated as of May 13, 2002, (this
"Guaranty"), is made by and among New Century Financial Corporation ("NCFC") and
New Century Mortgage Corporation ("NCMC"; and jointly and severally with NCFC,
the "Guarantors") and Bank of America, N.A. (the "Buyer", which term shall
include any buyer for whom Buyer acts as Agent as defined and provided for in
the Master Repurchase Agreement referred to below).
RECITALS
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A. Pursuant to the Master Repurchase Agreement, dated as of May 13,
2002 (as amended, supplemented or otherwise modified from time to time, the
"Master Repurchase Agreement"), between New Century Funding A (the "Seller") and
the Buyer, the Buyer has agreed to purchase certain loans (the "Loans") from the
Seller and the Seller has agreed to repurchase such Loans upon the terms and
subject to the conditions set forth therein.
B. As of the date hereof, NCMC holds all of the outstanding
equity of the Seller and will therefore derive a benefit from the Buyer's
purchase and sale of Loans from and to the Seller pursuant to the Master
Repurchase Agreement. As of the date hereof, NCFC holds all of the outstanding
shares of NCMC and will therefore derive a benefit from the Buyer's purchase and
sale of Loans from and to the Seller pursuant to the Master Repurchase
Agreement. To induce the Buyer to enter into the Master Repurchase Agreement and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Guarantors have agreed to guaranty the Seller's
obligations with respect to the Master Repurchase Agreement and the documents
referenced therein, and NCMC has agreed to pledge and grant a security interest
in the Pledged Collateral (as defined herein) as security for such guaranty.
C. It is a condition precedent to the Buyer entering into the
Master Repurchase Agreement and to the obligation of the Buyer to purchase the
Loans from the Seller under the Master Repurchase Agreement that the Guarantors
shall have executed and delivered this Guaranty to the Buyer.
NOW, THEREFORE, for good and valuable consideration, receipt of which
by the parties hereto is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms
defined in the Master Repurchase Agreement and used herein shall have the
meanings given to them in the Master Repurchase Agreement.
(b) "Expiration Date" shall have the meaning set forth in Section
2(d) herein.
(c) "Obligations" shall mean the obligations and liabilities of the
Seller and
the Guarantors to the Buyer, including, without limitation, the obligations
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 Master Repurchase Agreement, this Guaranty, any other
Program Documents and any other document made, delivered or given in connection
therewith or herewith, whether on account of covenants, Repurchase Prices,
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 the Seller pursuant to the terms of the Master Repurchase
Agreement) or otherwise.
(d) "Pledged Collateral" shall have the meaning assigned thereto in
Section 3 hereof.
(e) "Pledged Equity" shall mean all of the beneficial ownership
interest of the Seller acquired by NCMC from time to time.
(f) "UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York at any time; provided, that if, by reason of mandatory
provisions of law, the validity or perfection of the Buyer's security interest
in any item of Pledged Collateral is governed by the UCC as in effect in a
jurisdiction other than New York, "UCC" shall mean the UCC as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
validity or perfection.
(g) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Guaranty shall refer to this Guaranty as a
whole and not to any particular provision of this Guaranty, and section and
paragraph references are to this Guaranty unless otherwise specified.
(h) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Guaranty. (a) The Guarantors hereby, unconditionally and
irrevocably, guarantee to the Buyer and its successors, indorsees, transferees
and assigns the prompt and complete payment and performance by the Seller when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(b) The Guarantors further agree to pay any and all expenses
(including, without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Buyer in enforcing 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 Guarantors under this
Guaranty. This Guaranty shall remain in full force and effect until the
Obligations are paid in full, notwithstanding that from time to time prior
thereto the Seller may be free from any Obligations.
(c) Each Guarantor agrees that the Obligations may at any time and
from time
to time exceed the amount of the liability of such Guarantor hereunder without
impairing this Guaranty or affecting the rights and remedies of the Buyer
hereunder.
(d) No payment or payments made by the Seller, the Guarantors, any
other guarantor or any other Person or received or collected by the Buyer from
the Seller, the Guarantors, 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
Guarantors hereunder which shall, notwithstanding any such payment or payments
other than payments made by the Guarantors in respect of the Obligations or
payments received or collected from the Guarantors in respect of the
Obligations, remain liable for the Obligations up to the maximum liability of
the Guarantors hereunder until the Obligations are paid in full and the Master
Repurchase Agreement is terminated (such date, the "Expiration Date").
(e) Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Buyer on account of its liability
hereunder, it will notify the Buyer in writing that such payment is made under
this Guaranty for such purpose.
(f) Each Guarantor shall be jointly and severally liable to the
Buyer for all obligations of the Guarantors hereunder.
3. Pledge of Equity.
3.01 Pledged Collateral. As collateral security for the prompt
payment in full when due of the Obligations and solely to secure such debt, NCMC
hereby pledges, collaterally assigns and hypothecates to the Buyer, and hereby
grants to the Buyer, for the benefit of both the Buyer's own account and the
account of affiliates of the Buyer for which the Buyer is acting as agent
pursuant to the Master Netting Agreement, a lien on and first priority security
interest in, all of NCMC's right, title and interest in, to and under the
following, whether now owned by NCMC or hereafter acquired and whether now
existing or hereafter coming into existence and wherever located (all being
collectively referred to herein as the "Pledged Collateral"):
(a) the Pledged Equity, including, without limitation, (i) all
rights of NCMC to receive moneys due but unpaid or to become due thereunder and
all property received in substitution or exchange therefore, (ii) all of NCMC's
rights and privileges with respect to the Pledged Equity, (iii) all rights of
NCMC to property of the Seller, (iv) all rights of NCMC to receive proceeds of
any insurance, bond, indemnity, warranty or guaranty with respect to the Seller,
and (v) all proceeds, payments, income and profits of the foregoing;
(b) the official records and ledgers of the Seller; and
(c) to the extent not included in the foregoing, all proceeds,
products, offspring, rents, revenues, issues, profits, royalties, income,
benefits, accessions, additions,
substitutions and replacements of and to any and all of the foregoing.
3.02 Later Acquired Equity, Ownership Dividends, Options or
Adjustments. Until the Expiration Date, NCMC shall deliver to the Buyer any and
all additional equity or any other property of any kind distributable on or by
reason of the Pledged Collateral, whether in the form of or by way of ownership
dividends, warrants, total or partial liquidation, conversion, prepayments,
redemptions or otherwise, including, but not limited to, cash dividends or cash
interest payments, as the case may be; provided, however, that prior to an Event
of Default under the Master Repurchase Agreement, NCMC may receive any cash
dividends from Seller which are permitted to be retained by Seller pursuant to
the terms of the Master Repurchase Agreement. If any additional equity,
instruments, or other property, a security interest in which can only be
perfected by possession by the Buyer, which are distributable on or by reason of
the Pledged Collateral, shall come into the possession or control of NCMC, NCMC
shall forthwith transfer and deliver such property to the Buyer as Pledged
Collateral hereunder.
3.03 Delivery of Ownership Certificates and Conveyance Powers.
Simultaneously with the delivery of this Guaranty, NCMC is delivering to the
Buyer all certificated instruments and ownership certificates representing the
Pledged Equity, together with conveyance powers duly executed in blank by NCMC
and the registration book maintained by the Seller with respect to the Pledged
Equity. NCMC shall promptly deliver to the Buyer, or cause the Seller or any
other entity issuing the Pledged Collateral to deliver directly to the Buyer,
(i) ownership certificates or other instruments representing any Pledged Equity
acquired or received by NCMC after the date of this Guaranty and (ii) a
conveyance power or bond power duly executed in blank by NCMC. If at any time
the Buyer notifies NCMC that it requires additional conveyance powers endorsed
in blank, NCMC shall promptly execute in blank and deliver the requested power
to the requesting party.
3.04 Power of Attorney, Irrevocable Proxy. (a) NCMC hereby
constitutes and irrevocably appoints the Buyer, with full power of substitution
and revocation, as NCMC's true and lawful attorney-in-fact, with the power, to
the full extent permitted by law, to affix to any notes and documents
representing the Pledged Collateral the conveyance or bond powers delivered with
respect thereto, and to transfer or cause the transfer of the Pledged
Collateral, or any part thereof, on the books of the Seller or other entity
issuing such Pledged Collateral, to the name of the Buyer or any nominee, and
thereafter to exercise with respect to such Pledged Collateral, all the rights,
powers and remedies of an owner. The power of attorney granted pursuant to this
Guaranty and all authority hereby conferred are granted and conferred solely to
protect the Buyer's interest in the Pledged Collateral and shall not impose any
duty upon the Buyer to exercise any power. This power of attorney shall be
irrevocable as one coupled with an interest until the Expiration Date.
(b) As of the date hereof, NCMC hereby constitutes and irrevocably
appoints the Buyer, with full power of substitution and revocation, as NCMC's
true and lawful attorney-in-fact, with the power, to the full extent permitted
by law, to vote as proxy the Pledged Collateral at a meeting, or to express
consent or dissent to corporate action in writing without a
meeting, with respect to those actions described in Article VII of the Trust
Agreement of the Seller or Section 18 of the Administration Agreement of the
Seller. This proxy shall be irrevocable as one coupled with an interest and
shall be valid until the Expiration Date.
3.05 Dividends. NCMC agrees that it shall not cause the Seller to
declare or make payment of (i) any dividend or other distribution on any
ownership interest; provided, however, that prior to an Event of Default under
the Master Repurchase Agreement, NCMC may receive any cash dividends from Seller
which are permitted to be retained by Seller pursuant to the terms of the Master
Repurchase Agreement or (ii) any payment on account of the purchase, redemption,
retirement or acquisition of any option, warrant or other right to acquire an
interest in its own equity.
4. Representations and Warranties of the Guarantors.
4.01 Each Guarantor hereby represents and warrants that:
(a) It is duly organized and validly existing in good standing under
the laws of the jurisdiction under which it is organized and is duly qualified
to do business and is in good standing in every other jurisdiction as to which
the nature of the business conducted by it makes such qualification necessary.
(b) It has the full power, authority and legal right to execute,
deliver and perform its obligations under this Guaranty. This Guaranty has been
duly executed and delivered by it, has not been amended or otherwise modified,
is in full force and effect and is the legal, valid and binding obligation of
each Guarantor, enforceable against it in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights of creditors generally and to
the application of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
(c) Neither the execution and delivery of this Guaranty nor the
consummation of the transactions contemplated herein will conflict with or
result in a breach of, or require any consent under, any applicable law or
regulation, or any order, writ, injunction or decree of any court or
governmental authority or agency, or any material agreement or instrument to
which the Guarantors are a party or by which the Guarantors or their property is
bound or to which the Guarantors are subject, or constitute a default under any
such material agreement or instrument, or (except for the liens created pursuant
hereto) result in the creation or imposition of any lien or encumbrance upon the
Guarantors' revenues or assets pursuant to the terms of any such material
agreement or instrument.
(d) The Guarantors have received and reviewed copies of the Program
Documents.
(e) There is no action, suit or proceeding at law or in equity by or
before any
governmental authority, arbitral tribunal or other body now pending, or to the
best of the Guarantors' knowledge, threatened against or affecting the
Guarantors or any of their property or, with respect to NCMC, the Pledged
Collateral that has a reasonable likelihood of having a material adverse effect
on the Guarantors' condition, financial or otherwise.
(f) No authorizations, approvals or consents of, and no filings
or registrations with, any governmental authority are necessary for the
execution, delivery or performance by the Guarantors of this Guaranty, except
for the filings of the UCC-1s.
4.02 NCMC hereby represents and warrants that:
(a) The chief place of business and chief executive office of
the Seller is Delaware. NCMC has heretofore delivered to the Buyer a certified
copy of the Trust Agreement and Administration Agreement of the Seller
(collectively, the "Operating Documents") as in effect on the date hereof.
(b) Upon the filing of UCC-1 financing statements ("UCC-1s") in
the State of Delaware and, to the extent that the Pledged Collateral or any part
thereof constitutes "securities" for purposes of Article 8 of the UCC,
registration of such pledge on the registration book maintained by the Seller,
the pledge and security interest hereunder in favor of the Buyer constitutes a
first priority pledge and security interest in and to all of the Pledged
Collateral pledged by the Guarantors hereunder.
(c) It is the sole beneficial owner of the Pledged Collateral
pledged under Section 3 hereof free and clear of all claims, mortgages, pledges,
liens, security interests and other encumbrances of any nature whatsoever (and
no right or option to acquire the same exists in favor of any other person or
entity), except for the assignment, pledge and security interest in favor of the
Buyer created or provided for herein, and the Guarantor agrees that it will not
encumber or grant any security interest in or with respect to the Pledged
Collateral or permit any of the foregoing.
(d) NCMC and the Seller do not, in connection with selling,
transferring and assigning any Loan and pledging the Pledged Collateral, have
any actual intent to hinder, delay or defraud any entity to which NCMC or the
Seller are or are to become indebted.
(e) In exchange for the pledge and guaranty hereunder, NCMC, as
holder of the Pledged Equity, will derive a benefit from the sale, transfer and
assignment of the Loans to the Buyer.
(f) It is solvent on the date hereof and will not become
insolvent as a result of the pledge.
(g) It does not intend to incur, or believe in respect of the
pledge of the Pledged Collateral, that it will incur, debts that would be beyond
its ability to pay such debts as
such debts mature.
(h) The Pledged Equity are validly issued, fully paid for and
nonassessable. No options, warrants or other agreements with respect to the
Pledged Equity are outstanding. The Pledged Equity represent all of the
ownership interest in the Seller.
5. Covenants of Guarantors.
5.01 Each Guarantor covenants and agrees that:
(a) It shall pay and discharge all taxes now or hereafter
imposed on it, on its income or profits, on any of its property or upon the
liens provided herein prior to the date on which penalties attach thereto; it
shall promptly pay any valid, final judgment enforcing any such tax and cause
the same to be satisfied of record and shall also pay, or cause to be paid, when
due all claims for labor, material, supplies or services that, if unpaid, could
by law result in a mechanics' lien.
(b) It shall notify the Buyer promptly upon obtaining knowledge
of any material action, suit or proceeding at law or in equity by or before any
government authority, arbitral tribunal or other body pending or threatened
against it or the Seller.
5.02 NCMC covenants and agrees that:
(a) It shall not (i) create, incur, assume or permit to exist
any lien upon any of the Pledged Collateral, or (ii) directly or indirectly
create, incur or suffer to exist any indebtedness payable by the Seller except
any indebtedness incurred under the Program Documents.
(b) Without the prior written consent of the Buyer, it will not
(i) vote to enable, or take any other action to permit, the Seller to issue any
ownership or other equity securities of any nature or to issue any other
securities convertible into or granting the right to purchase or exchange for
any ownership interest or other equity securities of the Seller or (ii) sell,
assign, transfer, exchange or otherwise dispose of, or grant any option with
respect to, the Pledged Collateral.
(c) It shall not file or cause or suffer to be filed with respect to
the Seller a voluntary petition in bankruptcy to seek relief for the Seller
under any provision of any bankruptcy, reorganization, moratorium, delinquency,
arrangement, insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction whether now or subsequently in effect, or consent to the filing
of any petition against the Seller under any such law, or consent to the
appointment of or taking possession by a custodian, receiver, conservator,
trustee, liquidator, sequestrator or similar official for the Seller, or of all
or any part of the Seller's property, or make an assignment for the benefit of
the Seller.
6. Further Assurances; Remedies. In furtherance of the grant of the
pledge and security interest pursuant to Section 3 hereof, NCMC hereby agrees
with the Buyer as follows:
6.01 Delivery and Other Perfection. NCMC shall:
(a) if any Pledged Collateral required to be pledged by NCMC
under Section 3 hereof is received by NCMC, forthwith either (x) transfer and
deliver to the Buyer such certificates or securities so received by NCMC
(together with the ownership certificates and securities duly endorsed in blank
or accompanied by undated conveyance powers duly executed in blank), all of
which thereafter shall be held by the Buyer, pursuant to the terms of this
Guaranty, as part of the Pledged Collateral or (y) take such other action as the
Buyer shall deem necessary or appropriate to record duly the lien created
hereunder in such ownership interests, equity, securities, moneys, property or
other interests in said clauses; and
(b) give, execute, deliver, file and/or record any financing
statements, continuation statement, notice, instrument, document, agreement or
other papers that may be necessary or desirable (in the judgment of the Buyer)
to create, preserve, perfect or validate the security interest granted pursuant
hereto or to enable the Buyer to exercise and enforce its rights hereunder with
respect to such pledge and security interest (including, without limitation,
causing any or all of the Pledged Collateral to be transferred of record into
the name of the Buyer or its nominee (and the Buyer agrees that if any Pledged
Collateral is transferred into its name or the name of its nominee, it will
thereafter promptly give to NCMC copies of any notices and communications
received by it with respect to the applicable Pledged Collateral)); without
limiting the generality of the foregoing, if any Pledged Collateral shall be
evidenced by a promissory note or other instrument, NCMC shall deliver and
pledge to the Buyer such note or instrument duly endorsed or accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Buyer.
6.02 Other Financing Statements and Liens. Without the prior consent
of the Buyer, NCMC shall not file or suffer to be on file or filed, or authorize
or permit to be filed or to be on file, in any jurisdiction, any financing
statement or like instrument with respect to the Pledged Collateral in which the
Buyer is not named as the sole secured party.
6.03 Preservation of Rights. The Buyer shall not be required to take
any steps necessary to preserve any rights against prior parties to any of the
Pledged Collateral.
6.04 Pledged Collateral.
(a) Except as provided in Section 3.04(b) above and notwithstanding
anything to the contrary herein or in the Master Repurchase Agreement or any
documents referenced therein, so long as no Event of Default shall have occurred
and be continuing, NCMC shall have the right to exercise all voting and
corporate rights pertaining to the Pledged Collateral for all purposes not
inconsistent with the terms of this Agreement, the Master Repurchase Agreement
or any documents referenced therein; provided that
(i) NCMC agrees that it will not vote the Pledged Collateral in any
manner that is inconsistent with the terms of this Guaranty, the Master
Repurchase Agreement or any documents referenced therein and (ii) the Buyer
shall execute and deliver to NCMC or cause to be executed and delivered to NCMC
all such proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as NCMC may reasonably request for the purpose of
enabling NCMC to exercise the rights and powers which it is entitled to exercise
pursuant to this Section 6.04.
(b) Any provisions of the Operating Documents of the Seller
restricting the transferability of the ownership interests in the Seller shall
not apply to the exercise by the Buyer of any of its rights and remedies under
the Master Repurchase Agreement or any document referenced therein or to any
sale, assignment, transfer or other disposition by the Buyer of all or any part
of any ownership interest in the Seller.
(c) NCMC recognizes and agrees that the Buyer has an absolute and
unconditional right to liquidate the Pledged Collateral upon an Event of
Default. NCMC agrees not to seek any equitable or other relief to delay or
prevent the Buyer from exercising its right to liquidate the Pledged Collateral
upon an Event of Default. Further, NCMC recognizes and agrees that (i) the
Pledged Collateral is not unique, (ii) NCMC will not be irreparably harmed if
the Pledged Collateral is liquidated by the Buyer upon an Event of Default, and
(iii) in the event NCMC has a claim or cause of action against the Buyer for
liquidation of the Pledged Collateral or other actions of the Buyer, money
damages will be sufficient to satisfy such claim or cause of action.
6.05 Events of Default, Etc. During the period during which an Event
of Default has occurred and be continuing:
(a) the Buyer shall have all of the rights and remedies with respect
to the Pledged Collateral of a secured party under the UCC and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted (including, without limitation, the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers of
ownership pertaining to the Pledged Collateral as if the Buyer were the sole and
absolute owner thereof (and NCMC agrees to take all such action as may be
appropriate to give effect to such right));
(b) the Buyer may make any reasonable compromise or settlement
deemed desirable with respect to any of the Pledged Collateral and may extend
the time of payment, arrange for payment in installments, or otherwise modify
the terms of, any of the Pledged Collateral;
(c) the Buyer may, in its name or in the name of NCMC or otherwise,
demand, xxx for, collect or receive any money or property at any time payable or
receivable on account of, or in exchange for, any of the Pledged Collateral, but
shall be under no obligation to
do so; and
(d) the Buyer may, with respect to the Pledged Collateral or any
part thereof which shall then be or shall thereafter come into the possession,
custody or control of the Buyer or any of its agents, sell, lease, assign or
otherwise dispose of all or any part of such Pledged Collateral, at such place
or places as the Buyer deems best, and for cash or for credit or for future
delivery (without thereby assuming any credit risk), at public or private sale,
without demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is required
above or by applicable statute and cannot be waived), and any Person may be the
purchaser, lessee, assignee or recipient of any or all of the Pledged Collateral
so disposed of at any public sale (or, to the extent permitted by law, at any
private sale) and thereafter hold the same absolutely free from any claim or
right of whatsoever kind, including any right or equity of redemption (statutory
or otherwise), of NCMC, any such demand, notice and right or equity being hereby
expressly waived and released. The Buyer may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned.
NCMC recognizes that, by reason of certain prohibitions contained in
the Securities Act of 1933, as amended (the "Securities Act"), and applicable
state securities laws, the Buyer may be compelled, with respect to any sale of
all or any part of the Pledged Collateral which constitutes a "security" under
the Securities Act, to limit purchasers to those who will agree, among other
things, to acquire such Pledged Collateral for their own account, for investment
and not with a view to the distribution or resale thereof. NCMC acknowledges
that any such private sale may be at prices and on terms less favorable to the
Buyer than those obtainable through a public sale without such restrictions,
and, notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that the
Buyer shall not have any obligation to engage in public sales and no obligation
to delay the sale of any such Pledged Collateral for the period of time
necessary to permit the respective issuer thereof to register it for public
sale.
6.06 Removals, Etc. Without at least thirty (30) days' prior
notice to the Buyer, NCMC shall not change the name under which it does business
from the name shown on the signature pages hereto.
6.07 Private Sale. The Buyer shall not incur any liability as a
result of the sale of the Pledged Collateral, or any part thereof, at any
private sale pursuant to Section 6.05 hereof conducted in good faith. NCMC
hereby waives any claims against the Buyer by reason of the fact that the price
at which the Pledged Collateral may have been sold at such a private sale was
less than the price which might have been obtained at a public sale or was less
than the aggregate amount of the Obligations.
6.08 Attorney-in-Fact. Upon the occurrence and during the continuance
of any Event of Default, the Buyer is hereby appointed the attorney-in-fact of
NCMC for the purpose of
carrying out the provisions of this Section 6 and taking any action and
executing any instruments which the Buyer may deem necessary or advisable to
accomplish the purposes hereof, which appointment as attorney-in-fact is
irrevocable and coupled with an interest. Without limiting the generality of the
foregoing, so long as the Buyer shall be entitled under this Section 6 to make
collections in respect of the Pledged Collateral, the Buyer shall have the right
and power to receive, endorse and collect all checks made payable to the order
of NCMC representing any dividend, payment or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same.
6.09 Termination. When all of the Obligations shall have been paid in
full, this Agreement shall terminate and the Buyer shall forthwith cause to be
assigned, transferred and delivered, against receipt but without any recourse,
warranty or representation whatsoever, any remaining Pledged Collateral and
money received in respect thereof, to or on the order of NCMC.
6.10 Expenses. NCMC agrees to pay, and the Obligations shall include,
all out-of-pocket expenses (including reasonable expenses for legal services of
every kind) of, or incident to the enforcement of any of the provisions of this
Section 6, or performance by the Buyer of any obligations of NCMC in respect of
the Pledged Collateral which NCMC has failed or refused to perform, or any
actual or attempted sale, or any exchange, enforcement, collection, compromise
or settlement in respect of any of the Pledged Collateral, and for the care of
the Pledged Collateral and defending or asserting rights and claims of the Buyer
in respect thereof, by litigation or otherwise.
6.11 Further Assurances. NCMC agrees to, from time to time upon the
request of the Buyer, execute and deliver such further documents and do such
other acts and things as the Buyer may reasonably request in order to effectuate
the purposes of this Guaranty.
7. Right of Set-off. Upon the occurrence of any Event of
Default, the Guarantors hereby irrevocably authorize the Buyer or any of its
Affiliates at any time and from time to time without notice to the Guarantors,
any such notice being expressly waived by the Guarantors, 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 the Buyer or any
of its Affiliates to or for the credit or the account of the Guarantors, or any
part thereof in such amounts as the Buyer may elect, against and on account of
the obligations and liabilities of the Guarantors to the Buyer hereunder and
claims of every nature and description of the Buyer or any of its Affiliates
against the Guarantors, in any currency, whether arising hereunder, under the
Master Repurchase Agreement as the Buyer may elect, whether or not the Buyer has
made any demand for payment and although such obligations, liabilities and
claims may be contingent or unmatured. The Buyer shall notify the Guarantors
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 and its Affiliates under this
Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Buyer and its Affiliates may have.
8. No Subrogation. Notwithstanding any payment or payments
made by the Guarantors hereunder or any set-off or application of funds of the
Guarantors by the Buyer or any of its Affiliates, the Guarantors shall not be
entitled to be subrogated to any of the rights of the Buyer against the 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
Guarantors seek or be entitled to seek any contribution or reimbursement from
the Seller or any other guarantor in respect of payments made by the Guarantors
hereunder, until all amounts owing to the Buyer by the Seller on account of the
Obligations are paid in full and the Master Repurchase Agreement is terminated.
If any amount shall be paid to the Guarantors 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 Guarantors in trust for the Buyer, segregated
from other funds of each Guarantor, and shall, forthwith upon receipt by the
Guarantors, be turned over to the Buyer in the exact form received by the
Guarantors (duly indorsed by the related Guarantor to the Buyer, if required),
to be applied against the Obligations, whether matured or unmatured, in such
order as the Buyer may determine.
9. Amendments, Etc. with Respect to the Obligations. The
Guarantors shall remain obligated hereunder notwithstanding that, without any
reservation of rights against the Guarantors and without notice to or further
assent by the Guarantors, 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 Master Repurchase Agreement and any other
documents executed and delivered 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 not have any
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 any Guarantor, the Buyer may,
but shall be under no obligation to, make a similar demand on the Seller or any
other guarantor, and any failure by the Buyer to make any such demand or to
collect any payments from the Seller or any such other guarantor or any release
of the Seller or such other guarantor shall not relieve the Guarantors of their
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 Guarantors. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
10. Waiver of Rights. The Guarantors waive 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 acceptance of this Guaranty; the Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon this
Guaranty; and all dealings between the Seller and the Guarantors, on the one
hand, and the Buyer, on the other hand, likewise shall be conclusively presumed
to have been had or consummated in reliance upon this Guaranty. The Guarantors
waive diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon the Seller or the Guarantors with respect to the
Obligations.
11. Guaranty Absolute and Unconditional. The Guarantors
understand and agree that this Guaranty shall be construed as a continuing,
absolute and unconditional guarantee of the full and punctual payment and
performance by the Seller of the Obligations and not of their collectibility
only, and is in no way conditioned upon any requirement that the Buyer first
attempt to collect any of the obligations from the Seller, without regard to (a)
the validity, regularity or enforceability of the Master Repurchase Agreement,
any of the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Buyer, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Seller against the Buyer, or (c) any other circumstance whatsoever (with or
without notice to or knowledge of the Seller or the Guarantors) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of the Seller from the Obligations, or of the Guarantors from this
Guaranty, in bankruptcy or in any other instance. When pursuing its rights and
remedies hereunder against the Guarantors, the Buyer may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the Seller
or any other Person or against the Pledged Collateral or any other collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Buyer to pursue such other rights or remedies or
to collect any payments from the Seller or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Seller or any such other Person or any such
collateral security, guarantee or right of offset, shall not relieve the
Guarantors of any liability hereunder, and shall not impair or affect the rights
and remedies, whether express, implied or available as a matter of law, of the
Buyer against the Guarantors. This Guaranty shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the
Guarantors and the successors and assigns thereof, and shall inure to the
benefit of the Buyer, and its successors, indorsees, transferees and assigns,
until all the Obligations and the obligations of the Guarantors under this
Guaranty shall have been satisfied by payment in full and the Master Repurchase
Agreement shall be terminated, notwithstanding that from time to time during the
term of the Master Repurchase Agreement the Seller may be free from any
Obligations.
12. Reinstatement. This Guaranty shall continue to be effective,
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by the Buyer upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Seller or any of the Guarantors, or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, the Seller or any of the Guarantors or any substantial part
of its
property, or otherwise, all as though such payments had not been made.
13. Payments. The Guarantors hereby guarantee that payments
hereunder will be paid to the Buyer without set-off or counterclaim in U.S.
Dollars in accordance with the wiring instructions of the Buyer.
14. Notices. All notices, requests and other communications
provided for herein (including without limitation any modifications of, or
waivers, requests or consents under, this Guaranty) shall be given or made in
writing (including without limitation by telex or telecopy) and delivered to the
intended recipient at the "Address for Notices" specified on the signature page
hereto; or, as to any party, at such other address as shall be designated by
such party in a written notice to each other party. All such communications
shall be deemed to have been duly given when transmitted by telex or telecopy or
personally delivered or, in the case of a mailed notice, upon receipt, in each
case given or addressed as aforesaid.
15. Severability. Any provision of this Guaranty 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 remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
16. Integration. This Guaranty and the Master Repurchase Agreement
represent the agreement of the Guarantors with respect to the subject matter
hereof and thereof and there are no promises or representations by the Buyer
relative to the subject matter hereof or thereof not reflected herein or
therein.
17. Amendments in Writing; No Waiver; Cumulative Remedies. (a)
None of the terms or provisions of this Guaranty may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantors and the Buyer, provided that any provision of this Guaranty may
be waived by the Buyer.
(b) The Buyer shall not by any act (except by a written
instrument pursuant to Section 17(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Buyer, any right, power or privilege hereunder
shall operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Buyer of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Buyer would otherwise have
on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
18. Section Headings. The section headings used in this Guaranty are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
19. Successors and Assigns. This Guaranty shall be binding upon the
successors and assigns of the Guarantors and shall inure to the benefit of the
Buyer and its successors and assigns. This Guaranty may not be assigned by any
of the Guarantors without the express written consent of the Buyer.
20. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY NEW YORK LAW
WITHOUT REFERENCE TO CHOICE OF LAW DOCTRINE.
21. SUBMISSION TO JURISDICTION; WAIVERS. EACH GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY AND THE MASTER REPURCHASE AGREEMENT, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY
THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT
IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH UNDER ITS SIGNATURE BELOW OR AT SUCH OTHER ADDRESS OF WHICH THE BUYER
SHALL HAVE BEEN NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO XXX IN ANY OTHER JURISDICTION.
22. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND
ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS GUARANTY, THE MASTER REPURCHASE AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
23. Security Agreement. This Guaranty shall constitute a "security
agreement" within the meaning of the UCC. NCMC, by executing and delivering this
Guaranty, has granted and hereby grants to the Buyer, as security for the
Obligations, a security interest in the Pledged Collateral that may be subject
to the UCC.
24. Other Liens. Notwithstanding anything to the contrary contained
herein, liens previously granted by the Guarantors in favor of the Buyer or
future liens that are granted by the Guarantors in favor of the Buyer will not
constitute a breach of this Guaranty.
25. Agents. The Buyer may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
26. Counterparts. This Guaranty may be executed in any number of
counterparts, all of which when taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Guaranty by signing
any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed and delivered as of the day and year first above written.
--------------------------------------------------------------------------------
NEW CENTURY MORTGAGE CORPORATION,
jointly and severally as Guarantor
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
NEW CENTURY FINANCIAL CORPORATION,
jointly and severally as Guarantor
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Executive Vice President
--------------------------------------------------------------------------------
Address for Notices with respect to each of the foregoing:
00000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. XxXxxxxx
-------------------------------
Name: Xxxxx X. XxXxxxxx
Title: Managing Director
Address for Notices: TX1-492-66-01
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx XxXxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Attention: Xxxx X. Short, Associate
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
