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EXHIBIT 10.2
GUARANTY
GUARANTY, dated as of November 30, 2006 (as amended from
time to time, the " Guaranty "), made by New Century
Financial Corporation (the " Guarantor ") in favor of
Goldman Sachs Mortgage Company (the " Buyer "), party to the
Master Repurchase Agreement dated November 30, 2006 by and
among the Buyer, New Century Mortgage Corporation, Home123
Corporation, New Century Credit Corporation and NC Capital
Corporation (each a " Seller " and, collectively, the "
Sellers ") (as amended from time to time, the "
Repurchase Agreement ").
RECITALS
Reference is made to the Repurchase Agreement, pursuant to which
the Buyer agreed to enter into transactions with the Sellers upon
the terms and subject to the conditions set forth therein. It is a
condition precedent to the obligation of the Buyer to enter into
Transactions with the Sellers under the Repurchase Agreement, that
the Guarantor execute and deliver this Affiliate Guaranty to the
Buyer.
Now, therefore, in consideration of the premises and to induce
the Buyer to enter into the Repurchase Agreement and engage in
Transactions with the Sellers, and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees to guarantee in
accordance with the terms hereof each Seller’s obligations
under the Repurchase Agreement, as may be amended from time to
time.
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) " Obligations " shall mean all obligations and
liabilities of each Seller to the Buyer, whether direct or
indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, or whether for payment or for
performance (including, without limitation, any Price Differential
accruing after the Repurchase Date for the Transactions and any
Price Differential accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization
or like proceeding, relating to any Seller, whether or not a claim
for post filing or post petition interest is allowed in such
proceeding), which may arise under, or out of or in connection with
the Repurchase Agreement, this Guaranty 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 reasonable fees and disbursements of counsel to the
Buyer that are required to be paid by the Sellers pursuant to the
terms of such documents) or otherwise.
(c) 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.
(d) 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 Guarantor hereby,
unconditionally and irrevocably, guarantees to the Buyer and its
successors, indorsees, transferees and assigns, 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 reasonable 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.
(c) No payment or payments made by any Seller, the
Guarantor, any other guarantor or any other Person or received or
collected by the Buyer 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 up to the maximum liability of the
Guarantor hereunder until the Obligations are paid in full and the
Repurchase Agreement is terminated.
(d) The 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.
3. Right of Set-off . Upon the occurrence of any
Event of Default, the Guarantor hereby irrevocably authorizes the
Buyer 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 the Buyer to or
for the credit or the account of the Guarantor, or any part thereof
in such amounts as the Buyer may elect, against and on account of
the obligations and liabilities of the Guarantor to the Buyer
hereunder and claims of every nature and description of the Buyer
against the Guarantor, in any currency, whether arising hereunder,
under the Repurchase Agreement, any promissory note, or otherwise,
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
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 Section are in addition to other
rights and remedies (including, without limitation, other rights of
set-off) which the Buyer may 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 the Buyer, the Guarantor
shall not be entitled to be subrogated to any of the rights of the
Buyer against the Sellers 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. The Guarantor hereby subordinates all of
its subrogation rights against the Sellers to the full payment of
Obligations due the Buyer under the Repurchase Agreement for a
period of 91 days following the final payment of the last of
all of the Obligations under the Facility Documents. 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 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;
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 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 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 the Guarantor, the Buyer may, but shall be
under no obligation to, make a similar demand on any Seller or any
other guarantor, and any failure by the Buyer to make any such
demand or to collect any payments from a Seller or any such other
guarantor or any release of any Seller or such other guarantor
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