EXHIBIT 10.13
LIMITED GUARANTY
In order to induce (i) SALOMON BROTHERS REALTY CORP. ("SBRC") to purchase
Mortgage Loans from NC CAPITAL CORPORATION (the "Seller"), a wholly-owned
subsidiary of NEW CENTURY MORTGAGE CORPORATION (the "Guarantor"), pursuant to
the Purchase and Sale Agreement dated as of January 1, 2002 (the "Purchase and
Sale Agreement") and related letter agreement, dated as of January 1, 2002 (the
"Letter Agreement") and (ii) XXXXXXX XXXXX XXXXXX INC. ("SSB") to enter into a
Global Master Repurchase Agreement with Seller with respect to certain residual
securities issued in connection with the securitization of certain mortgage
loans (the "Global PSA," and, collectively with the Purchase and Sale Agreement
and the Letter Agreement, the "Agreements"), the Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the due and punctual payment of the
Seller's obligations under the Agreements when and as due, whether at stated
payment dates, at maturity, by acceleration or otherwise, and all other monetary
obligations of the Seller to SBRC, SSB or their affiliates pursuant to the
Agreements, including without limitation costs (the "Obligations"). The
Guarantor further agrees that the Obligations may be extended and renewed, in
whole or in part, in accordance with the provisions of the Agreements without
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Obligations by SBRC or
SSB. Capitalized terms used herein but not defined herein shall have the meaning
set forth in the Agreements.
In furtherance of the foregoing and not in limitation of any other right
which SBRC or SSB may have at law or in equity against the Guarantor by virtue
hereof, upon the occurrence of an event requiring the payment by the Seller of
any Obligations, the Guarantor hereby promises to and will, upon receipt of
written demand by SBRC or SSB, as the case may be, forthwith pay, or cause to be
paid, to SBRC or SSB in cash the amount of such unpaid Obligations, and
thereupon SBRC or SSB, as the case may be, shall, in a reasonable manner, assign
the collateral in respect of the Obligations owed to it and paid by the
Guarantor pursuant to this Limited Guaranty to the Guarantor, or make such
disposition thereof as the Guarantor shall direct (all without recourse to and
without representation or warranty by SBRC or SSB).
Upon payment by the Guarantor of any sums to SBRC or SSB as provided above,
all rights of the Guarantor against the Seller arising as a result thereof by
way of right of subrogation or otherwise shall in all respects be subordinated
and junior in right of payment to the prior indefeasible payment in full of all
the Obligations to SBRC or SSB, as the case may be.
The Guarantor waives presentment to, demand of payment from and protest to
the Seller of any of the Obligations, and also waives notice of acceptance of
its guarantee and notice of protest for nonpayment. The obligations of the
Guarantor hereunder shall not be affected by (a) the failure of SBRC or SSB to
assert any claim or demand or to enforce any right or remedy against the Seller
under the provisions of the Agreements or otherwise; (b) any rescission, waiver,
amendment or modification of any of the terms or provisions of the Agreements or
any other agreement or (c) the release of any security held by SBRC or SSB for
the Obligations or any of them.
The Guarantor further agrees that its guarantee constitutes a guarantee of
payment when due and not of collection, and waives any right to require that any
resort be had by SBRC or SSB to any security held for payment of the Obligations
or to any balance of any deposit account or credit on the books of SBRC or SSB
in favor of the Seller or any person.
The obligations of the Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of SBRC or
SSB to assert any claim or demand or to enforce any remedy under the Agreements
or any other agreement, by any waiver or modification on any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or omission which may or might in any manner or
to any extent vary the risk of the Guarantor or otherwise operate as a discharge
of the Guarantor as a matter of law or equity; provided that the Agreements
shall not be amended without the prior consent of the Guarantor.
The Guarantor further agrees that its guarantee shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of principal of or interest on any Obligation is rescinded or must
otherwise be restored by SBRC or SSB upon the bankruptcy or reorganization of
the Seller or otherwise, all as though such payment had not been made.
The Guarantor hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the federal and New York State courts located in
the City of New York for any action, suit or proceeding instituted by SBRC or
SSB to enforce this Limited Guaranty. The Guarantor further agrees that service
of any process, summons, notice or documents by U.S. registered or certified
mail to the Guarantor's address set forth below shall be effective service of
process for any such proceeding. The Guarantor hereby irrevocably and
unconditionally waives any objection the Guarantor may have at any time to the
venue or forum of any such proceeding brought in such a court.
IN WITNESS WHEREOF, the undersigned has executed this Limited Guaranty on
the day and year set forth below.
Dated: January 1, 2002
NEW CENTURY MORTGAGE CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President