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
