MASTER REPURCHASE AGREEMENT (2007 RESIDUAL SECURITIES)
Dated as of April 18, 2007
AMONG:
Wachovia Investment Holdings, LLC ("Buyer", which term shall include any
"Principal" as defined and provided for in Annex I), as buyer, and Wachovia
Capital Markets, LLC, as agent pursuant hereto ("Agent");
NovaStar Mortgage, Inc. ("NMI"), as a seller, NovaStar Certificates Financing
LLC ("NCFLLC"), as a seller and NovaStar Certificates Financing Corporation
("NCFC"), as a seller (NMI, NCFLLC and NCFC, each a Seller and collectively,
jointly and severally, the "Sellers").
1. APPLICABILITY
Buyer shall, from time to time, upon the terms and conditions set forth
herein, agree to enter into transactions in which the related Seller
transfers to Buyer Eligible Assets against the transfer of funds by Buyer,
with a simultaneous agreement by Buyer to transfer to the related Seller
such Purchased Assets at a date certain, against the transfer of funds by
the related Seller. Each such transaction shall be referred to herein as a
"Transaction", and, unless otherwise agreed in writing, shall be governed
by this Agreement.
2. DEFINITIONS AND INTERPRETATION
a. Defined Terms.
"2006 Dividend" shall mean the dividend distribution to be made by NFI to
comply with U.S. federal income tax law requirements for REITs to distribute at
least 90% of their REIT taxable income.
"Adjusted Tangible Net Worth" shall mean at any date:
(a) Book Net Worth plus the notional amount of any Trust Preferred
Securities, minus
(b) The sum of (1) all assets which would be classified as intangible
assets of NFI and its consolidated Subsidiaries under GAAP (except purchased and
capitalized value of servicing rights), including, without limitation, goodwill
(whether representing the excess cost over book value of assets acquired or
otherwise), patents, trademarks, trade names, copyrights, franchises and
deferred charges (including, without limitation, unamortized debt discount and
expense, organization costs and research and product development costs) plus (2)
all receivables from directors, officers and shareholders of NFI and its
consolidated Subsidiaries, minus
(c) The amount of unrealized gains on debt securities (as defined in
FASB 115) of NFI and any Subsidiaries of NFI Holding, plus
(d) The amount of unrealized losses on debt securities (as defined in
FASB 115) of NFI and any Subsidiaries of NFI Holding.
Provided that in all cases such amounts shall be determined by combining the
relevant figures for NFI and its consolidated Subsidiaries and its Affiliates,
as accounted for under the equity method.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting equity, by contract or otherwise.
"Agent" means Wachovia Capital Markets, LLC or any successor.
"Agreement" means this Master Repurchase Agreement (2007 Residual
Securities), as it may be amended, supplemented or otherwise modified from time
to time.
"Book Net Worth" shall mean the excess of total assets of NFI and its
consolidated Subsidiaries over Total Liabilities of NFI and its consolidated
Subsidiaries determined in accordance with GAAP (or such non-GAAP principles as
may be disclosed to and approved by Buyer from time to time).
"Breakage Costs" shall have the meaning assigned thereto in Section 3(c)
herein.
"Business Day" means any day other than (i) a Saturday or Sunday or (ii) a
day upon which the New York Stock Exchange or the Federal Reserve Bank of New
York is obligated by law or executive order to be closed.
"Buyer's Margin Amount" means, with respect to any Transaction as of any
date of determination, the amount obtained by application of Buyer's Margin
Percentage to the Repurchase Price for such Transaction as of such date.
"Buyer's Margin Percentage" shall have the meaning assigned thereto in the
Side Letter.
"Change of Control" shall mean any person or group of persons (other than
(i) any subsidiary of the NFI or (ii) any employee or director benefit plan or
stock plan of the NFI or any subsidiary of the NFI or any trustee or fiduciary
with respect to any such plan when acting in that capacity or any trust related
to any such plan) shall have acquired beneficial ownership of shares
representing more than 50% of the combined voting power represented by the
outstanding common stock of the NFI (within the meaning of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended, and the applicable
rules and regulations thereunder).
"Change in Law" means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by Buyer
(or any Affiliate of Buyer) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after
the date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral" shall have the meaning assigned thereto in Section 8 hereof.
"Collateral Security, Setoff and Netting Agreement" means the Collateral
Security, Setoff and Netting Agreement dated as of April 18, 2007 among Buyer
and certain Affiliates and NFI, NMI and certain Affiliates as it may be further
amended from time to time.
"Combined Market Value" means the aggregate Market Value of the Purchased
Assets and the market value of the servicing rights that are purchased pursuant
to the Master Repurchase Agreement (2007 Servicing Rights).
"Combined Maximum Aggregate Purchase Price" shall have the meaning assigned
thereto in the Side Letter.
"Combined Purchase Price" means the aggregate Purchase Price of the
Purchased Assets and the purchase price of the servicing rights that are
purchased pursuant to the Master Repurchase Agreement (2007 Servicing Rights).
"Commitment Letter" means the commitment letter, dated as of April 11,
2007, among the Buyer, the Agent, Wachovia Bank, N.A., NFI and NMI.
"Confirmation" shall have the meaning assigned thereto in Section 4 hereof.
"Default" means any event, that, with the giving of notice or the passage
of time or both, would constitute an Event of Default.
"Default Rate" means, as of any date of determination, the lesser of (i)
the Prime Rate plus 4% and (ii) the maximum rate permitted by applicable law.
"Delinquency and Loss Trigger" shall mean with respect to any Residual
Security, the threshold set forth in the related securitization transaction that
is included in the related Transaction Notice, if any, for allowable
delinquencies and losses with respect to such Residual Security.
"Dividend Securities" shall mean notes, bonds, debentures or common or
preferred stock of NFI or its subsidiaries that qualify as property and will be
treated as a deductible dividend to NFI shareholders under the Code, and are
reasonably acceptable to the Buyer.
"Effective Date" shall mean the date set forth on the top of the first page
of this Agreement.
"Eligible Asset" shall mean each Residual Security issued from existing
securitizations which include either Seller's originated first-lien and
second-lien home loans to sub-prime borrowers (except securities issued pursuant
to the NovaStar Mortgage Funding Trust, Series 2006-MTA1),
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which residual certificates may have previously been pledged and included in a
net interest margin security and are deemed to be eligible by the Buyers in
their sole and absolute discretion and with respect to which (i) each of the
representations and warranties set forth on Exhibit C hereto (notwithstanding
that any such representations are made to the best knowledge of the Sellers) is
accurate and complete as of the date of the related Confirmation (and the
related Seller by including any security in any such Transaction shall be deemed
to make such representations and warranties to Buyer at and as of the date of
such Transaction) and (ii) any related Delinquency and Loss Trigger has not been
met.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" shall mean any corporation or trade or business that is a
member of any group of organizations (i) described in Section 414(b) or (c) of
the Code of which Seller is a member and (ii) solely for purposes of potential
liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of the Code
and the lien created under Section 302(f) of ERISA and Section 412(n) of the
Code, described in Section 414(m) or (o) of the Code of which Seller is a
member.
"Event of Default" shall have the meaning assigned thereto in Section 18
hereof.
"Existing Agreements" shall include the agreements and facilities set forth
on Schedule 1 attached hereto.
"GAAP" shall mean generally accepted accounting principles in the United
States of America in effect from time to time.
"Governing Agreement" shall mean with respect to any Purchased Asset, the
pooling and servicing agreement, indenture or similar agreement.
"Governmental Authority" shall mean any nation or government, any state or
other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions over any Seller.
"Guarantee" means, as to any Person, any obligation of such Person directly
or indirectly guaranteeing any Indebtedness of any other Person or in any manner
providing for the payment of any Indebtedness of any other Person.
"Guarantors" means NFI, NFI Holding, NovaStar Mortgage Inc. and Homeview
Lending, Inc.
"Guaranty" means the Guaranty of the Guarantors, jointly and severally, in
favor of the Buyer, dated as of April 18, 2007.
"Income" means, with respect to any Purchased Asset at any time, any
principal distributions thereon and all interest, dividends and other
collections and distributions thereon, but not including any commitment nor
origination fees.
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"Indebtedness" shall mean, for any Person: (a) all obligations for borrowed
money; (b) obligations of such Person to pay the deferred purchase or
acquisition price of Property or services, other than trade accounts payable
(other than for borrowed money) arising, and accrued expenses incurred, in the
ordinary course of business so long as such trade accounts payable are payable
and paid within ninety (90) days of the date the respective goods are delivered
or the respective services are rendered; (c) indebtedness of others secured by a
lien on the Property of such Person, whether or not the respective indebtedness
so secured has been assumed by such Person; (d) obligations (contingent or
otherwise) of such Person in respect of letters of credit or similar instruments
issued for account of such Person; (e) capital lease obligations of such Person;
(f) obligations of such Person under repurchase agreements or like arrangements
financially equivalent to obligations for borrowed money; (g) indebtedness of
others guaranteed on a recourse basis by such Person; (h) all obligations of
such Person incurred in connection with the acquisition or carrying of fixed
assets by such Person; (i) indebtedness of general partnerships of which such
Person is a general partner; and (j) any other contingent liabilities of such
Person for the liabilities or obligations of any other Person.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, including all rules and regulations promulgated thereunder.
"LIBOR" shall mean, for each day of a Transaction, a rate based on the
offered rates of the Reference Banks for one-month U.S. dollar deposits, as
determined by Buyer for the related Purchase Date.
"Lien" shall mean, any mortgage, lien, pledge, charge, security interest,
option or claim or similar encumbrance.
"Margin Call" shall have the meaning assigned thereto in Section 6(a)
hereof.
"Margin Deficit" shall have the meaning assigned thereto in Section 6(a)
hereof.
"Market Value" means (i) with respect to any Purchased Asset that is an
Eligible Asset, as of any date of determination, the value ascribed to such
asset by Buyer in its sole discretion, and (ii) with respect to a Purchased
Asset that is not an Eligible Asset, zero.
"Master Repurchase Agreement (2007 Servicing Rights)" means that certain
master repurchase agreement (MSR), dated as of April 18, 2007, among Wachovia
Bank, National Association and NovaStar Mortgage, Inc., as amended from time to
time.
"Material Adverse Change" means any material adverse change in the
business, financial performance, assets, operations or condition (financial or
otherwise) of NFI and its consolidated subsidiaries, taken as a whole.
"Material Adverse Effect" means (a) a Material Adverse Change with respect
to a Guarantor or a Guarantor and its Affiliates that are party to any Program
Document taken as a whole; (b) a material impairment of the ability of a
Guarantor or any Affiliate that is a party to any Program Document to perform
under any Program Document and to avoid any Event of Default; or (c) a
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material adverse effect upon the legality, validity, binding effect or
enforceability of any Program Document against a Guarantor or any Affiliate that
is a party to any Program Document.
"Maximum Aggregate Purchase Price" shall have the meaning assigned thereto
in the Side Letter.
"Mortgage Assets" shall mean home equity loans or mortgage loans originated
by an affiliate of a Seller.
"Non-Seller Affiliate" means an Affiliate of any Seller or Guarantor that
is not, itself, a Seller or Guarantor.
"Notice Date" shall have the meaning assigned thereto in Section 4 hereof.
"NFI" means NovaStar Financial, Inc. and its permitted successors and
assigns.
"NFI Holding" means NFI Holding Corporation and its permitted successors
and assigns.
"NMI" means NovaStar Mortgage, Inc. and its permitted successors and
assigns.
"Obligations" means (a) all of Sellers' and Guarantors' obligation to pay
the Repurchase Price on the Repurchase Date, and other obligations and
liabilities of Sellers and Guarantors, to Buyer or its Affiliates arising under,
or in connection with, the Program Documents or otherwise, whether now existing
or hereafter arising; (b) any and all sums paid by Buyer or on behalf of Buyer
pursuant to the Program Documents in order to preserve any Purchased Asset or
its interest therein; (c) in the event of any proceeding for the collection or
enforcement of any of Seller's or Guarantors' indebtedness, obligations or
liabilities referred to in clause (a), the reasonable expenses of retaking,
holding, collecting, preparing for sale, selling or otherwise disposing of or
realizing on any Purchased Asset, or of any exercise by Buyer or such Affiliate
of its rights under the related agreements, including without limitation,
reasonable attorneys' fees and disbursements and court costs; and (d) all of
Sellers' and Guarantors' obligations to Buyer or any other Person pursuant to
the Program Documents.
"Person" shall mean any legal person, including any individual,
corporation, partnership, association, joint-stock company, trust, limited
liability company, unincorporated organization, governmental entity or other
entity of similar nature.
"Plan" shall mean an employee benefit or other plan established or
maintained by Seller or any ERISA Affiliate and covered by Title IV of ERISA,
other than a Multiemployer Plan.
"Price Differential" means, with respect to each Transaction as of any
date, the aggregate amount obtained by daily application of the Pricing Rate for
such Transaction to the Purchase Price on a 360-day-per-year basis for the
actual number of days during the period commencing on (and including) the
Purchase Date and ending on (but excluding) the date of determination (reduced
by any amount of such Price Differential in respect of such period previously
paid by the related Seller to Buyer) with respect to such Transaction.
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"Pricing Rate" shall have the meaning assigned thereto in the Side Letter.
"Prime Rate" means the daily prime loan rate as reported in The Wall Street
Journal or if more than one rate is published, the highest of such rates.
"Principal" shall have the meaning given to it in Annex I.
"Program Documents" means this Agreement, the Collateral Security, Setoff
and Netting Agreement, the Guaranty, the Side Letter, the Commitment Letter and
any other agreement entered into by any of the Sellers and/or a Guarantor, on
the one hand, and Buyer or one of its Affiliates on the other, in connection
herewith or therewith.
"Property" means any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
"Purchase Date" means the date on which Purchased Assets are to be
transferred by the related Seller to Buyer.
"Purchase Price" means the price at which Purchased Assets are transferred
by Sellers to Buyer in a Transaction, which shall (unless otherwise agreed) be
equal to the Purchase Price Percentage times the Market Value of the related
Purchased Assets.
"Purchase Price Percentage" shall have the meaning assigned thereto in the
Side Letter.
"Purchased Assets" means, with respect to a Transaction, the Residual
Securities which are the subject of such Transaction, together with the related
Records and other Collateral, and all instruments, chattel paper, and general
intangibles comprising or relating to all of the foregoing.
"Rating Agency" means each of ▇▇▇▇▇'▇ Investors Service, Inc., Standard &
Poor's, a division of The McGraw Hill Companies, Inc. or Fitch Ratings.
"Records" means all instruments, agreements and other books, records, and
reports and data generated by other media for the storage of information
maintained by the related Seller or any other person or entity with respect to a
Purchased Asset. Records shall include the certificates with respect to any
Purchased Asset and any other instruments necessary to document or service a
Purchased Asset.
"Reference Banks" mean any leading banks selected by the Agent which are
engaged in transactions in Eurodollar deposits in the international Eurocurrency
market with an established place of business in London.
"Relevant System" shall mean, (i) The Depository Trust Company in New York,
New York, or (ii) such other clearing organization or book-entry system as is
designated in writing by Buyer.
"REIT" shall mean a real estate investment trust, as defined in Section 856
of the Code.
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"REMIC" means a "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"Repurchase Date" shall have the meaning assigned thereto in Section 3(b)
and shall also include the date determined by application of Section 19.
"Repurchase Price" means the price at which Purchased Assets are to be
transferred from Buyer to the related Seller upon the Repurchase Date for a
Transaction, which will be determined in each case (including Transactions
terminable upon demand) as the sum of the Purchase Price and the Price
Differential as of the date of such determination.
"Required Equity" shall mean, with respect to NFI (and its consolidated
Subsidiaries) (together, the "Companies"), the sum of the dollar amounts
calculated after multiplying the amount determined by combining the relevant
figures for NFI and its consolidated Subsidiaries for each asset class set forth
in the table below (or if such asset class is owned by NFI or a consolidated
Subsidiary but cannot be determined by combining the relevant figures for NFI
and its consolidated Subsidiaries, the fair market value thereof as calculated
by the Companies subject, however, to the approval of Buyer which will not be
unreasonably withheld) by the Percentage Multipliers set forth opposite such
asset class in the table below:
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Percentage
Asset Class Multiplier
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Cash 0%
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Mortgage Loans held-for-sale including accrued interest 5%
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Mortgage loans held-in-portfolio including accrued interest 5%
(securitized in an owners trust)
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Mortgage loans held-in-portfolio including accrued interest 1.75%
(securitized in a REMIC trust)
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AAA-Rated I/O and Prepay (P) Certificates booked on-B/S 25%
----------------------------------------------------------------------------
BBB NIM Certificates 25%
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Residuals from whole loan securitizations 35%
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Residuals from NIM/CAPS 100%
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Non-rated subordinate bonds (excluding residuals) 100%
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A-Rated Mortgage-Backed Securities not in CDO 20%
----------------------------------------------------------------------------
BBB-Rated Mortgage-Backed Securities not in CDO 25%
----------------------------------------------------------------------------
BB-Rate Mortgage-Backed Securities not in CDO 50%
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Mortgage-Backed Securities in CDO 5%
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----------------------------------------------------------------------------
Percentage
Asset Class Multiplier
----------------------------------------------------------------------------
CDO Equity Sub Notes 100%
----------------------------------------------------------------------------
CDO BBB Bonds 5%
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Agency Securities 3%
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Servicing Agreements (Mortgage Servicing Rights) 35%
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Servicing Advances 15%
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REO + Non-performing (90+ & foreclosures from bond 35%
collateral calls)
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Other assets
- Hedging Agreements (Value of reserves that are not reflected 100%
in Marks to Market that impact equity)
- All Other Assets (all else remaining - including Other 35%
Receivables & PP&E
----------------------------------------------------------------------------
Intangible Assets 100%
----------------------------------------------------------------------------
provided that the Required Equity shall be reduced by any Dividend
Securities with a maturity date of more than one year issued in connection with
the 2006 Dividend.
"Residual Security" shall mean a non-rated mortgage-backed security that
receives cash flows consisting of excess interest, and/or release of
over-collateralization or reserve funds, or any other type of cash flow
including mortgage principal and interest payments, prepayment charges and
liquidiation proceeds.
"SEC" shall mean the Securities and Exchange Commission.
"Servicer" shall mean the designated servicer under each Servicing
Agreement.
"Servicing Agreement" shall mean any servicing agreement pursuant to which
any Mortgage Assets are serviced.
"Side Letter" means the Pricing Side Letter, dated as of April 18, 2007,
among the Sellers, Guarantors and Buyer.
"Structuring Fee" shall have the meaning assigned thereto in the Side
Letter.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the securities or
other ownership interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions of such corporation, partnership or other entity (irrespective of
whether or not at the
9
time securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person;
provided, however, that for purposes of Section 18 hereof, "Subsidiary" shall
not include any of the entities listed on Exhibit D hereto, which may be revised
by Sellers from time to time upon consent of Buyer.
"Substitute Assets" has the meaning assigned thereto in Section 16(a).
"Termination Date" has the meaning assigned thereto in Section 27.
"TMP REIT Securities" means the Residual Securities for the NovaStar
Mortgage Funding Trust, Series 2006-1 and NovaStar Mortgage Funding Trust,
Series 2006-MTA1.
"Total Liabilities" shall mean total liabilities of NFI and its
consolidated Subsidiaries determined in accordance with GAAP (or with such
non-GAAP principles as may be disclosed to and approved by Buyer from time to
time); provided; for purposes of this Agreement, such term shall not include any
Trust Preferred Securities.
"Transaction" has the meaning assigned thereto in Section 1.
"Transaction Notice" means a written request of the related Seller to enter
into a Transaction, in the form attached hereto as Exhibit B which is delivered
to Buyer.
"Trust Agreement" shall mean each of the trust agreements pursuant to which
a Residual Security has been issued.
"Trust Preferred Securities" shall mean (i) the $50,000,000 of unsecured
floating rate securities issued by NovaStar Capital Trust I, a statutory trust
100 percent owned by NMI, pursuant to the indenture dated March 15, 2005,
between NMI and ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, NA, as trustee and (ii) the $35,000,000 of
unsecured floating rate securities issued by NovaStar Capital Trust II, a
statutory trust 100 percent owned by NMI, pursuant to the indenture dated April
18, 2006, between NMI and ▇▇ ▇▇▇▇▇▇ Chase Bank, NA, as trustee.
"Trustee" shall mean, as applicable, the entity designated as such pursuant
to each Trust Agreement.
"Trustee Instruction Letter" shall mean a letter substantially in the form
of Exhibit E.
"Uniform Commercial Code" means the Uniform Commercial Code as in effect on
the date hereof in the State of New York or the Uniform Commercial Code as in
effect in the applicable jurisdiction.
"Usage Fee" shall have the meaning assigned thereto in the Side Letter.
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b. Interpretation.
Headings are for convenience only and do not affect interpretation. The
following rules of this subsection (b) apply unless the context requires
otherwise. The singular includes the plural and conversely. A gender includes
all genders. Where a word or phrase is defined, its other grammatical forms have
a corresponding meaning. A reference to a subsection, Section, Annex or Exhibit
is, unless otherwise specified, a reference to a Section of, or annex or exhibit
to, this Agreement. A reference to a party to this Agreement or another
agreement or document includes the party's successors and permitted substitutes
or assigns. A reference to an agreement or document is to the agreement or
document as amended, modified, novated, supplemented or replaced, except to the
extent prohibited by any Program Document. A reference to legislation or to a
provision of legislation includes a modification or re-enactment of it, a
legislative provision substituted for it and a regulation or statutory
instrument issued under it. A reference to writing includes a facsimile
transmission and any means of reproducing words in a tangible and permanently
visible form. A reference to conduct includes, without limitation, an omission,
statement or undertaking, whether or not in writing. An Event of Default
subsists until it has been waived in writing by the Buyer or has been timely
cured. The words "hereof", "herein", "hereunder" and similar words refer to this
Agreement as a whole and not to any particular provision of this Agreement. The
term "including" is not limiting and means "including without limitation." In
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including", the words "to" and "until"
each mean "to but excluding", and the word "through" means "to and including."
This Agreement may use several different limitations, tests or measurements to
regulate the same or similar matters. All such limitations, tests and
measurements are cumulative and shall each be performed in accordance with their
terms. Unless the context otherwise clearly requires, all accounting terms not
expressly defined herein shall be construed, and all financial computations
required under this Agreement shall be made, in accordance with GAAP,
consistently applied. References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the related Seller. Except where otherwise
provided in this Agreement any determination, statement or certificate by the
Buyer or an authorized officer of the Buyer provided for in this Agreement is
conclusive and binds the parties in the absence of manifest error. A reference
to an agreement includes a security interest, guarantee, agreement or legally
enforceable arrangement whether or not in writing. A reference to a document
includes an agreement (as so defined) in writing or a certificate, notice,
instrument or document, or any information recorded in computer disk form. Where
the related Seller or a Guarantor is required to provide any document to the
Buyer under the terms of this Agreement, the relevant document shall be provided
in writing or printed form unless the Buyer requests otherwise. At the request
of the Buyer, the document shall be provided in computer disk form or both
printed and computer disk form. This Agreement is the result of negotiations
among and has been reviewed by counsel to the Buyer, Guarantors and the Sellers,
and is the product of all parties. In the interpretation of this Agreement, no
rule of construction shall apply to disadvantage one party on the ground that
such party proposed or was involved in the preparation of any particular
provision of this Agreement or this Agreement itself. Except where otherwise
expressly stated, the Buyer may give or withhold, or give conditionally,
approvals and consents, and may form opinions and make determinations at their
absolute discretion. Any requirement of good faith, discretion or judgment by
the Buyer shall not be construed to require Buyer to request or await receipt of
information or documentation not immediately available from or with respect to
the related Seller, a Guarantor, a servicer of the Purchased Assets, any other
Person or
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the Purchased Assets themselves. With respect to any information set forth on
Schedules 1, 2 and 3 attached hereto, Buyer has reviewed and consented to such
information on such schedules as of the Effective Date; provided, however, that
to the extent any facts or circumstances relating to the matters disclosed on
such schedules change after the Effective Date, Buyer shall not be deemed to
have consented to any such change and such change may result in an Event of
Default.
3. THE TRANSACTIONS
a. The related Seller shall repurchase Purchased Assets from Buyer on each
related Repurchase Date. Each obligation to repurchase subsists without regard
to any prior or intervening liquidation or foreclosure with respect to each
Purchased Asset. The related Seller is obligated to obtain the Purchased Assets
from Buyer or its designee at the related Seller's expense on (or after) the
related Repurchase Date.
b. Provided that the applicable conditions in Sections 9(a) and (b) have
been satisfied, each Purchased Asset that is repurchased by the related Seller
on the 26th day of each month (or, if such 26th day is not a Business Day, the
immediately following Business Day) following the related initial Purchase Date
(the day of the month so determined for each month, or any other date designated
by the related Seller to Buyer for such a repurchase on at least one Business
Day's prior notice to Buyer, a "Repurchase Date", which term shall also include
the date determined by application of Section 19) shall automatically become
subject to a new Transaction unless Buyer is notified by the related Seller at
least one (1) Business Day prior to any Repurchase Date, provided that if the
Repurchase Date so determined is later than the Termination Date, the Repurchase
Date for such Transaction shall automatically reset to the Termination Date, and
the provisions of this sentence as it might relate to a new Transaction shall
expire on such date for each new Transaction, unless otherwise agreed, (y) the
accrued and unpaid Price Differential shall be settled in cash on each related
Repurchase Date, and (z) the Pricing Rate shall be as set forth in the Side
Letter.
c. If the related Seller repurchases Purchased Assets on any day which is
not a Repurchase Date for such Purchased Assets, the related Seller shall
indemnify Buyer and hold Buyer harmless from any losses, costs and/or expenses
which Buyer may sustain or incur arising from the reemployment of funds obtained
by Buyer hereunder or from fees payable to terminate the deposits from which
such funds were obtained ("Breakage Costs"), in each case for the remainder of
the applicable 30 day period. Buyer shall deliver to the related Seller a
statement setting forth the amount and basis of determination of any Breakage
Costs in such detail as determined in good faith by Buyer to be adequate, it
being agreed that such statement and the method of its calculation shall be
adequate and shall be conclusive and binding upon the related Seller, absent
manifest error. This Section shall survive termination of this Agreement and the
repurchase of all Purchased Assets subject to Transactions hereunder.
4. ENTERING INTO TRANSACTIONS, TRANSACTION NOTICE CONFIRMATIONS
Under the terms and conditions of the Program Documents, Buyer hereby
agrees to enter into Transactions with a Purchase Price up to the Maximum
Aggregate Purchase Price. In no event shall Buyer be required to enter into more
than one Transaction in any day. Unless otherwise agreed, the related Seller
shall give Buyer notice of any proposed Purchase Date prior to 2:00 p.m. New
York
12
City time on the second (2nd) preceding Business Day (the date on which such
notice is so given, the "Notice Date"), provided that the initial Transaction
shall only require one (1) Business Day prior notice. On the Notice Date, the
related Seller or a Guarantor shall request that Buyer enter into a Transaction
by furnishing to Buyer a Transaction Notice. On such Notice Date, the related
Seller shall (I) with respect to Eligible Assets that shall be delivered or held
in definitive, certificated form, deliver to Buyer the original of the relevant
certificate with respect to the related Eligible Assets either (i) registered in
the name of Buyer or (ii) if Buyer consents thereto in its sole discretion
(including for TMP REIT Securities), in form suitable for transfer, with
accompanying, duly executed (with a medallion guarantee with respect to the
signatures thereon) instruments of transfer or appropriate instruments of
assignment (including all Transfer Documents) executed in blank, transfer tax
stamps, and any other documents or instruments necessary in the opinion of Buyer
to effect and perfect a legally valid delivery of such security or other item of
investment property to Buyer, (II) with respect to Eligible Assets that shall be
delivered or held in uncertificated form and the ownership of which is
registered on books maintained by the issuer thereof or its transfer agent, the
Seller shall cause the registration of such security or other item of investment
property in the name of Buyer and at the request of the Buyer, shall take such
other and further steps, and shall execute and deliver such documents or
instruments necessary in the opinion of the Buyer, to effect and perfect a
legally valid delivery of the relevant interest granted therein to Buyer
hereunder and (III) with respect to Eligible Assets that shall be delivered
through a Relevant System in book entry form and credited to or otherwise held
in an account, (i) the Seller shall cause the giving of written instructions to
the relevant financial institution or other entity, and shall provide a copy
thereof to the Buyer, sufficient if complied with to effect and perfect a
legally valid delivery of the relevant interest granted therein to Buyer
hereunder, (ii) in connection with any account to which the Eligible Assets are
credited or otherwise held, the Seller shall execute and deliver such other and
further documents or instruments necessary, to effect and perfect a legally
valid delivery of the relevant interest granted therein to Buyer hereunder and
(iii) any account to which the Eligible Assets are credited or otherwise shall
be designated as the Buyer may direct. Unless otherwise instructed by Buyer, any
delivery of a security or other item of investment property in definitive,
certificated form shall be made to the Buyer in accordance with its
instructions. Any delivery of a security in accordance with this subsection, or
any other method acceptable to Buyer in its sole discretion, shall be sufficient
to cause Buyer to have a perfected, first priority security interest in, and to
be the "entitlement holder" (as defined in Section 8-102(a)(7) of the Uniform
Commercial Code of the State of New York) with respect to the security. No
Purchased Assets shall, whether certificated or uncertificated, (i) remain in
the possession of the Seller, or (ii) remain in the name of the Seller or any of
its agents, or in any account in the name of the Seller or any of its agents. In
the event Buyer consents to delivery of any certificate representing one or more
of Eligible Assets not registered in the name of Buyer, concurrently with the
delivery thereof, (A) the Seller shall have (1) notified the Trustee in
connection with the related securitization transaction of the pledge of the
related Eligible Assets hereunder, and (2) instructed the Trustee to pay all
amounts payable to the holders of the Eligible Assets to an account specified by
the Buyer, in the form of the instruction letter attached hereto as Exhibit E
(the "Trustee Instruction Letter") and (B) the Trustee shall have acknowledged
in writing the instructions set forth in clause (A) above, and a copy of the
fully executed Trustee Instruction Letter shall be delivered to the Buyer. Buyer
shall exercise all voting and corporate rights relating to such Purchased Assets
in accordance with Seller's direction for so long as no Default or Event of
Default shall have occurred and be continuing; provided, however, that no vote
shall be cast or corporate right exercised or other action taken which would
impair, reduce the value of or otherwise adversely
13
affect the Purchased Assets or which would be inconsistent with or result in any
violation of any provision of this Agreement, any other Program Document or the
Guaranty. Seller hereby agrees to pay all costs and expenses incurred by any
party (including reasonable attorney's fees and expenses) in connection with any
such registration in the name of Buyer and any ultimate re-registration in the
name of Seller, if applicable. Without the prior written consent of Buyer, no
Seller will (i) sell, assign, transfer, exchange or otherwise dispose of, or
grant any option with respect to, the Purchased Assets, or (ii) create, incur or
permit to exist any Lien or option in favor of, or any claim of any Person with
respect to, any of the Purchased Assets, or any interest therein, except for the
lien provided for by this Agreement, or (iii) enter into any agreement or
undertaking (other than pursuant to this Agreement) restricting the right or
ability of the Seller or Buyer to sell, assign or transfer any of the Purchased
Assets.
5. PAYMENT AND TRANSFER
Unless otherwise agreed, all transfers of funds hereunder shall be in
immediately available funds and all Purchased Assets transferred shall be
transferred to Buyer. Any Repurchase Price or Price Differential received by
Buyer after 12:00 noon New York City time shall be applied on the next
succeeding Business Day.
6. MARGIN MAINTENANCE
a. If at any time the aggregate Market Value of all Purchased Assets
subject to all Transactions is less than the aggregate Buyer's Margin Amount for
all such Transactions (a "Margin Deficit"), then Buyer may by notice to the
related Seller require the related Seller in such Transactions to transfer to
Buyer cash so that the cash and aggregate Market Value of the Purchased Assets
will thereupon equal or exceed such aggregate Buyer's Margin Amount (such
requirement, a "Margin Call").
b. Notice required pursuant to Section 6(a) may be given by any means
provided in Section 35 hereof. Any notice received before 11:00 a.m. New York
time on a Business Day shall be met, and the related Margin Call satisfied, no
later than 5:00 p.m. New York time on such Business Day; notice received after
11:00 a.m. New York time on a Business Day shall be met, and the related Margin
Call satisfied, no later than 5:00 p.m. New York time on the following Business
Day. The failure of Buyer, on any one or more occasions, to exercise its rights
hereunder, shall not change or alter the terms and conditions to which this
Agreement is subject or limit the right of Buyer to do so at a later date. The
related Seller, each Guarantor and the Buyer each agree that a failure or delay
by Buyer to exercise its rights hereunder shall not limit or waive Buyer's
rights under this Agreement or otherwise existing by law or in any way create
additional rights for the related Seller or any Guarantor.
7. INCOME PAYMENTS
Where a particular term of a Transaction extends over the date on which
Income is paid in respect of any Purchased Assets subject to that Transaction,
such Income shall be paid directly to Buyer and be the property of Buyer;
provided, however, that all such Income shall be applied by Buyer to reduce the
Obligations of Sellers hereunder.
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8. SECURITY INTEREST
The related Seller and Buyer intend that the Transactions hereunder be
sales to Buyer of the Purchased Assets and not loans from Buyer to the related
Seller secured by the Purchased Assets. However, in order to preserve Buyer's
rights under this Agreement in the event that a court or other forum
recharacterizes the Transactions hereunder as other than sales, and as security
for the related Seller's performance of all of its Obligations, the related
Seller hereby grants Buyer a fully perfected first priority security interest in
the following property, whether now existing or hereafter acquired: the
Purchased Assets, the related Records, the contractual right to receive
payments, including the right to payments of principal and interest and the
right to enforce such payments arising from or under any of the Purchased
Assets, the contractual right to service or arrange for the servicing of each
Mortgage Asset to the extent, if any, the related Seller has such rights, any
servicing agreements with respect to each Mortgage Asset, including the rights
of the related Seller, if any, under any Servicing Agreements to the extent such
rights under the Servicing Agreements are assignable by the related Seller, and
any proceeds and distributions with respect to any of the foregoing
(collectively the "Collateral").
9. CONDITIONS PRECEDENT
a. As conditions precedent to the initial Transaction, Buyer shall have
received on or before the day of such initial Transaction the following, in form
and substance satisfactory to Buyer and duly executed by each party thereto:
(i) Agent shall have received the Program Documents, including
collateral documents, required legal opinions and certificates, each duly
executed and in form and substance reasonably satisfactory to the Agent;
(ii) Agent shall be satisfied that all material Liens granted to Buyer
hereunder with respect to the Collateral are valid and perfected liens and
have the priorities indicated herein;
(iii) Except as disclosed on Schedule 2 attached hereto, there are no
actions, suits, arbitrations, investigations (including, without
limitation, any of the foregoing which are pending or threatened) or other
legal or arbitrable proceedings affecting Sellers or any of their
Subsidiaries or affecting any of the Property of any of them before any
Governmental Authority which (i) questions or challenges the validity or
enforceability of the Program Documents or otherwise materially impairs the
transactions contemplated hereby or (ii) individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect;
(iv) The Program Documents shall be duly executed and delivered by the
parties thereto and being in full force and effect, free of any
modification, breach or waiver;
(v) Except as disclosed on Schedule 3 attached hereto, there shall
have been no Material Adverse Change in the business, financial
performance, assets, operations or
15
condition (financial or otherwise) of Sellers and their subsidiaries, taken
as a whole since December 31, 2006;
(vi) The Sellers shall have delivered to the Agent and the Buyer (i)
an unaudited consolidated balance sheet of NFI dated not earlier than
February 28, 2007 prior to the date hereof showing Adjusted Tangible Net
Worth of not less than $400,000,000 (which may or may not have been
prepared in accordance with GAAP), (ii) an unaudited summary schedule of
estimated consolidated financial results of NFI and its subsidiaries for
the three months ended March 31, 2007 (which may or may not have been
prepared in accordance with GAAP) and (iii) a certificate of the Chief
Financial Officer of NFI certifying to the best of his knowledge as to such
balance sheet after reasonable inquiry and further stating that he is not
aware of any information or other matter that would make the financial
information set forth therein materially inaccurate or incomplete;
(vii) There shall not exist any violation of applicable laws and
regulations (including, without limitation, ERISA, margin regulations and
environmental laws) which could reasonably be expected to result in a
Material Adverse Change, except as disclosed on Schedule 3 attached hereto;
(viii) The representations and warranties contained herein shall be
true and correct in all material respects as of the date hereof;
(ix) No event shall have occurred and be continuing or would result
from the Facility that would constitute an Event of Default or a Default;
(x) Agent shall have received a certified copy of each Seller's and
each Guarantor's consents or corporate resolutions, as applicable,
approving the Program Documents and Transactions thereunder (either
specifically or by general resolution), and all documents evidencing other
necessary corporate action or governmental approvals as may be required in
connection with the Program Documents;
(xi) Agent shall have received an incumbency certificate of the
secretaries of each Seller and each Guarantor certifying the names, true
signatures and titles of each Seller's and each Guarantor's representatives
duly authorized to request Transactions hereunder and to execute the
Program Documents and the other documents to be delivered thereunder;
(xii) Agent shall have received an opinion of each Seller's and each
Guarantor's counsel as to such matters (including, without limitation, a
corporate opinion, a New York law enforceability opinion, a security
interest opinion, an investment company act opinion and a "securities
contract" under federal bankruptcy law opinion) as Buyer may reasonably
request and in form and substance acceptable to Buyer;
(xiii) All of the conditions precedent in the Guaranty shall have been
satisfied; and
(xiv) Any other documents reasonably requested by Buyer.
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b. The obligation of Buyer to enter into each Transaction (including the
initial Transaction) pursuant to this Agreement is subject to the following
conditions precedent:
(i) Buyer or its designee shall have received on or before the day of
a Transaction with respect to such Purchased Assets (unless otherwise
specified in this Agreement) the following, in form and substance
satisfactory to Buyer and (if applicable) duly executed:
(A) Transaction Notice delivered pursuant to Section 4(a);
(B) the definitive certificate representing ownership of such
Residual Securities which are subject to such Transaction in the
name of Buyer or, if such Residual Securities which are subject
to such Transaction are registered on DTC or similar depository,
evidence satisfactory to Buyer that the records of DTC or such
depository show Buyer as the beneficial ownership of such
Residual Securities which are subject to such Transaction;
(C) each Governing Agreement with respect to each Purchased Asset;
and
(D) such certificates, customary opinions of counsel or other
documents as Buyer may reasonably request, provided that such
opinions of counsel shall not be required in connection with each
Transaction but shall only be required from time to time as
deemed necessary by Buyer in its good faith.
(ii) No Default or Event of Default shall have occurred and be
continuing.
(iii) Buyer shall not have reasonably determined that a change in any
requirement of law or in the interpretation or administration of any
requirement of law applicable to Buyer has made it unlawful, and no
Governmental Authority shall have asserted that it is unlawful, for Buyer
to enter into Transactions with a Pricing Rate based on LIBOR, unless
Seller shall have elected pursuant to Section 15(a) hereof that the Pricing
Rate for all Transactions be based upon the Prime Rate.
(iv) All representations and warranties in the Program Documents shall
be true and correct in all material respects on the date of such
Transaction and Sellers and Guarantors are in compliance with the terms and
conditions of the Program Documents.
(v) The then aggregate outstanding Purchase Price for all Purchased
Assets, when added to the Purchase Price for the requested Transaction,
shall not exceed the Maximum Aggregate Purchase Price.
(vi) No event or events shall have been reasonably determined by Buyer
to have occurred and be continuing resulting in the effective absence of a
whole loan or asset-backed securities market.
17
(vii) If requested, Buyer shall have received satisfactory information
regarding the hedging strategy, arrangements and general policy of the
Guarantors with respect to hedge instruments.
(viii) Satisfaction of any conditions precedent to the initial
Transaction as set forth in clause (a) of this Section 9 that were not
satisfied prior to such initial Purchase Date.
(ix) The Purchase Price for the requested Transaction shall not be
less than $1,000,000, or an integral multiple of $500,000 thereafter.
(x) Agent shall have determined that all actions necessary or, in the
opinion of Buyer, desirable to maintain Buyer's perfected interest in the
Purchased Assets and other Collateral have been taken, including, without
limitation, duly executed and filed Uniform Commercial Code financing
statements on Form UCC-1.
(xi) Buyer shall not be obligated to enter into more than one
Transaction per week (excluding any automatic Transaction pursuant to
Section 3(b)).
(xii) Any other documents reasonably requested by Buyer.
(xiii) Buyer shall have received from the Seller payment of the
applicable Usage Fee as set forth in the Side Letter.
10. RELEASE OF PURCHASED ASSETS
Upon timely payment in full of the Repurchase Price and all other
Obligations owing with respect to a Purchased Asset, if no Default or Event of
Default has occurred and is continuing, Buyer shall release such Purchased Asset
unless such release would give rise to or perpetuate a Margin Deficit. Except as
set forth in Sections 6(a) and 16, the related Seller shall give at least three
(3) Business Days' prior written notice to Buyer if such repurchase shall occur
on other than a Repurchase Date.
If such a Margin Deficit is applicable, Buyer shall notify the related
Seller of the amount thereof and the related Seller may thereupon satisfy the
Margin Call in the manner specified in Section 6.
11. RELIANCE
With respect to any Transaction, Buyer may conclusively rely upon, and
shall incur no liability to the related Seller or the Guarantor in acting upon,
any request or other communication that Buyer reasonably believes to have been
given or made by a person authorized to enter into a Transaction on the related
Seller's or the Guarantor's behalf.
12. REPRESENTATIONS AND WARRANTIES
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Each Seller and each Guarantor hereby represents and warrants, and shall on
and as of the Purchase Date for any Transaction and on and as of each date
thereafter through and including the related Repurchase Date be deemed to
represent and warrant, that:
a. Due Organization and Qualification. Each Seller and each Guarantor
is duly organized, validly existing and in good standing under the laws of
the jurisdiction under whose laws it is organized. Each Seller and each
Guarantor is duly qualified to do business, is in good standing and has
obtained all necessary licenses, permits, charters, registrations and
approvals necessary for the conduct of its business as currently conducted
and the performance of its obligations under the Program Documents, except
to the extent any failure to be so qualified and in good standing or to
obtain such a license, permit, charter, registration or approval will not
cause a Material Adverse Effect or impair the enforceability of any
Purchased Asset.
b. Power and Authority. Each Seller and each Guarantor has all
necessary power and authority to conduct its business as currently
conducted, to execute, deliver and perform its obligations under the
Program Documents and to consummate the Transactions.
c. Due Authorization. The execution, delivery and performance of the
Program Documents by each Seller and each Guarantor have been duly
authorized by all necessary action and do not require any additional
approvals or consents or other action by or any notice to or filing with
any Person other than any that have heretofore been obtained, given or
made.
d. Noncontravention. None of the execution and delivery of the Program
Documents by the related Seller or the related Guarantor or the
consummation of the Transactions and transactions thereunder:
i) conflicts with, breaches or violates any provision of any
Seller's charter documents, bylaws, operating agreement or any similar
agreement, any material agreement of any Seller or the Guarantor or
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award currently in effect having applicability to the
related Seller or the related Guarantor or its properties, except as
would not have a Material Adverse Effect;
ii) constitutes a default by the related Seller or the Guarantor
under any loan or repurchase agreement, mortgage, indenture or other
material agreement or instrument to which the related Seller or the
related Guarantor is a party or by which it or any of its properties
is or may be bound or affected; or
iii) results in or requires the creation of any lien upon or in
respect of any of the assets of the related Seller or the related
Guarantor except the Lien relating to the Program Documents.
e. Legal Proceeding. Except as disclosed on Schedule 2 attached
hereto, there is no action, proceeding or investigation by or before any
court, governmental or administrative
19
agency or arbitrator affecting any of the Purchased Assets, any Seller, any
Guarantor or any of their Affiliates, pending or threatened, which is
reasonably likely to be adversely determined and which, if decided
adversely, would have a Material Adverse Effect.
f. Valid and Binding Obligations. Each of the Program Documents to
which Sellers or any Guarantor is a party, when executed and delivered by
Sellers or such Guarantor, as applicable, will constitute the legal, valid
and binding obligations of the related Seller or such Guarantor, as
applicable, enforceable against the related Seller or such Guarantor, as
applicable, in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
general equitable principles.
g. Financial Statements. The financial statements and pro forma
balance sheet of NFI, copies of which have been furnished to Buyer, (i)
are, as of the dates and for the periods referred to therein, complete and
correct in all material respects, (ii) present fairly the financial
condition and results of operations of NFI as of the dates and for the
periods indicated and (iii) have been prepared in accordance with GAAP
consistently applied, except as noted therein (subject as to interim
statements to normal year-end adjustments). Since the date of the most
recent financial statements, there has been no Material Adverse Change with
respect to NFI except as disclosed on Schedule 3 attached hereto. Except as
disclosed in such financial statements, no Guarantor is subject to any
contingent liabilities or commitments that, individually or in the
aggregate, have a material possibility of causing a Material Adverse Change
with respect to such Guarantor. Buyer hereby acknowledges that only the
annual and quarterly financial statements are prepared in accordance with
GAAP.
h. Accuracy of Information. None of the documents or information
prepared by or on behalf of Sellers or any Guarantor and provided by
Sellers or any Guarantor to Buyer relating to Sellers' or the Guarantor's
financial condition contain any statement of a material fact with respect
to Sellers or any Guarantor or the Transactions that was untrue or
misleading in any material respect when made. Since the most recent
furnishing of such documents or information, there has been no change, nor
any development or event involving a prospective change known to Sellers or
any Guarantor, that would render any of such documents or information
untrue or misleading in any material respect.
i. No Consents. No consent, license, approval or authorization from,
or registration, filing or declaration with, any regulatory body,
administrative agency, or other governmental, instrumentality, nor any
consent, approval, waiver or notification of any creditor, lessor or other
non-governmental person, is required in connection with the execution,
delivery and performance by Sellers or any Guarantor of this Agreement or
the consummation by Sellers or any Guarantor of any other Program Document,
other than any that have heretofore been obtained, given or made.
j. Compliance With Law, Etc. No practice, procedure or policy employed
or proposed to be employed by Sellers or any Guarantor in the conduct of
its businesses violates any law, regulation, judgment, agreement, order or
decree applicable to it which, if enforced,
20
would result in either a Material Adverse Change with respect to Sellers or
any Guarantor or a Material Adverse Effect.
k. Solvency: Fraudulent Conveyance. Each Seller and each Guarantor is
solvent and will not be rendered insolvent by the Transaction and, after
giving effect to such Transaction, neither Sellers nor any Guarantor will
be left with an unreasonably small amount of capital with which to engage
in its business. Neither Sellers nor any Guarantor intends to incur, nor
believes that it has incurred, debts beyond its ability to pay such debts
as they mature. Neither Sellers nor any Guarantor is contemplating the
commencement of insolvency, bankruptcy, liquidation or consolidation
proceedings or the appointment of a receiver, liquidator, conservator,
trustee or similar official in respect of Sellers or any Guarantor or any
of their assets. The amount of consideration being received by Sellers upon
the sale of the Purchased Assets to Buyer constitutes reasonably equivalent
value and fair consideration for such Purchased Assets. Sellers are not
transferring any Purchased Assets with any intent to hinder, delay or
defraud any of its creditors.
l. Investment Company Act Compliance. No Seller is required to be
registered as an "investment company" as defined under the Investment
Company Act nor as an entity under the control of an "investment company"
as defined under the Investment Company Act.
m. Taxes. Each Seller and each Guarantor has filed all federal and
state tax returns which are required to be filed and paid all taxes,
including any assessments received by it, to the extent that such taxes
have become due (other than for taxes that are being contested in good
faith or for which it has established adequate reserves). Any taxes, fees
and other governmental charges payable by the Sellers or any Guarantor in
connection with a Transaction and the execution and delivery of the Program
Documents have been paid.
n. Additional Representation. With respect to each Purchased Asset,
the related Seller hereby makes all of the applicable representations and
warranties set forth in each Confirmation to which such Purchased Asset is
or has been subject, in each case as of the related Purchase Date, and the
related Seller understands that if the substance of any such representation
or warranty ceases to be true because of events occurring after such date,
the Market Value could be adversely affected.
o. No Broker. Neither any Seller nor any Guarantor has dealt with any
broker, investment banker, agent, or other person, except for Buyer, who
may be entitled to any commission or compensation in connection with the
sale of Purchased Assets pursuant to this Agreement; provided, that if
Sellers or any Guarantor has dealt with any broker, investment banker,
agent, or other person, except for Buyer, who may be entitled to any
commission or compensation in connection with the sale of Purchased Assets
pursuant to this Agreement, such commission or compensation shall have been
paid in full by the related Seller or such Guarantor, as applicable.
p. Adequate Capital. The capital of Sellers and each Guarantor is
adequate for the respective business and undertakings of Sellers and each
Guarantor.
21
q. [Reserved].
r. Governing Agreements. Each Governing Agreement is in full force and
effect and has not been modified, amended or supplemented except for any
modifications, amendments and supplements approved by Buyer.
s. Purchased Assets. With respect to each Purchased Asset, (i) the
related Seller has sold to Buyer a one hundred percent (100%) interest in
each class of such Purchased Asset; (ii) the related Seller shall be at the
time it delivers any Purchased Assets for any Transaction, and shall
continue to be, through the Purchase Date relating to each such
Transaction, the legal and beneficial owner of such Purchased Assets free
and clear of any Lien; (iii) the Seller has the unqualified right to sell
(and to the extent applicable, pledge and grant a first priority security
interest in) the Purchased Assets as provided herein without the consent of
any other person or entity, except for such consents which shall have been
obtained prior to the Purchase Date; and (iv) upon the consummation of each
Transaction, Buyer shall be the legal and beneficial owner of such
Purchased Assets free and clear of any lien (except with respect to TMP
REIT Securities).
t. ERISA. Each Plan to which Sellers or any of their Subsidiaries make
direct contributions, and, to the knowledge of the related Seller, each
other Plan is in compliance in all material respects with, and has been
administered in all material respects in compliance with, the applicable
provisions of ERISA, the Code and any other applicable Federal or State
law. As of the date hereof and on any date prior to the Termination Date,
no Plan is a "multiemployer plan" (within the meaning of Section 4001(a)(3)
of ERISA) or a "defined benefit plan" (within the meaning of Section 3(35)
of ERISA).
u. Compliance with Anti-Money Laundering Laws. Within thirty (30) days
following the issuance of regulations pursuant to the USA Patriot Act of
2001, or any similar federal, state or local anti-money laundering laws and
regulations (collectively, the "Anti-Money Laundering Laws"), each Seller
shall have implemented and shall thereafter maintain to the extent required
by law a compliance program that meets the requirements of such Anti-Money
Laundering Laws.
The representations and warranties set forth in this Agreement shall
survive transfer of the Purchased Assets to Buyer and shall continue for so long
as the Purchased Assets are subject to this Agreement.
13. COVENANTS OF SELLERS AND GUARANTOR
Each Seller and each Guarantor, as applicable, hereby covenants with Buyer
as follows:
a. Defense of Title. Each Seller and each Guarantor warrants and will
defend the right, title and interest of Buyer in and to all Collateral
against all adverse claims and demands.
22
b. No Amendment or Compromise. Without Buyer's prior written consent,
neither any Seller, any Guarantor nor those acting on any Seller's or any
Guarantor's behalf shall amend or modify, or waive any term or condition
of, or settle or compromise any claim in respect of, any item of the
Purchased Assets, any related rights or any of the Program Documents.
c. No Assignment. Except as permitted herein, neither any Seller nor
any Guarantor shall sell, assign, transfer or otherwise dispose of, or
grant any option with respect to, or pledge, hypothecate or grant a
security interest in or lien on or otherwise encumber (except pursuant to
the Program Documents), any of the Purchased Assets or any interest
therein, provided that this Section shall not prevent any transfer of
Purchased Assets in accordance with the Program Documents.
d. Reserved.
e. Preservation of Collateral; Collateral Value. Each Seller and each
Guarantor shall do all things necessary to preserve the Collateral so that
it remains subject to a first priority perfected security interest
hereunder. Without limiting the foregoing, each Seller and each Guarantor
will comply with all rules, regulations and other laws of any Governmental
Authority necessary to preserve the Collateral so that it remains subject
to a first priority perfected security interest hereunder. Neither any
Seller nor any Guarantor will allow any default for which any Seller or any
Guarantor is responsible to occur under any Collateral or any Program
Documents and each Seller and each Guarantor shall fully perform or cause
to be performed when due all of its obligations under any Collateral or the
Program Documents.
f. Maintenance of Papers, Records and Files. Each Seller and each
Guarantor shall require, and each Seller or the Guarantors of the Purchased
Assets shall build, maintain and have available, a complete file in
accordance with lending industry custom and practice for each Purchased
Asset. Each Seller or the Guarantors of the Purchased Assets will maintain
all such Records not in the possession of Buyer in good and complete
condition in accordance with industry practices and preserve them against
loss.
i) Each Seller and each Guarantor shall collect and maintain or
cause to be collected and maintained all Records relating to the
Purchased Assets in accordance with industry custom and practice,
including those maintained pursuant to the preceding subsection, and
all such Records shall be in Buyer's possession unless Buyer otherwise
approves.
ii) For so long as Buyer has an interest in or lien on any
Purchased Asset, each Seller and each Guarantor will hold or cause to
be held all related Records in trust for Buyer. Each Seller or each
Guarantor shall notify, or cause to be notified, every other party
holding any such Records of the interests and liens granted hereby.
iii) Upon reasonable advance notice from Buyer, each Seller and
each Guarantor shall (x) make any and all such Records available to
Buyer to examine any such Records, either by its own officers or
employees, or by agents or contractors, or both, and make copies
23
of all or any portion thereof, (y) permit Buyer or its authorized
agents to discuss the affairs, finances and accounts of each Seller or
such Guarantor with its respective chief operating officer and chief
financial officer and to discuss the affairs, finances and accounts of
each Seller or such Guarantor with its independent certified public
accountants.
g. Financial Statements: Accountants' Reports: Other Information. Each
Seller and each Guarantor shall keep or cause to be kept in reasonable
detail books and records of account of its assets and business and shall
clearly reflect therein the transfer of Purchased Assets to Buyer. Each
Seller and NFI shall furnish or cause to be furnished to Buyer the
following:
i) Financial Statements. (w) As soon as available and in any
event within 90 days after the end of each fiscal year, the
consolidated and consolidating, audited balance sheets of NFI as of
the end of each fiscal year of NFI, and the audited financial
statements of income and changes in equity of NFI, and the audited
statement of cash flows of NFI, for such fiscal year, (x) as soon as
available and in any event within 45 days after the end of each
quarter, the consolidated and consolidating, unaudited balance sheets
of NFI as of the end of each quarter, and the unaudited financial
statements of income and changes in equity of NFI and the unaudited
statement of cash flows of NFI for the portion of the fiscal year then
ended, (y) within 30 days after the end of each month, monthly
consolidated and consolidating and unaudited statements (excluding
cash flow statements) and balance sheets as provided in clause (x),
and (z) within 10 days after the end of each month, NFI's monthly cash
activity report, the items in clauses (w) and (x) having been prepared
in accordance with GAAP (subject, in the case of interim statements,
to normal year-end adjustments) and certified by NFI's treasurer.
ii) Monthly Certification. Each Seller shall execute and deliver
a monthly certification substantially in the form of Exhibit A-1
attached hereto and NFI shall execute and deliver a monthly
certification substantially in the form of Exhibit A-2 attached hereto
within thirty (30) days following the end of each month.
h. Notice of Material Events. Each Seller and each Guarantor shall
promptly inform Buyer in writing of any of the following:
i) any Default, Event of Default or default or breach by any
Seller or any Guarantor of any other material obligation under any
Program Document, or the occurrence or existence of any event or
circumstance that any Seller or such Guarantor reasonably expects will
with the passage of time become a Default, Event of Default or such a
default or breach by any Seller or any Guarantor;
ii) any material change in the insurance coverage required of any
Seller or any Guarantor or any other Person pursuant to any Program
Document, with copy of evidence of same attached;
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iii) any material dispute, litigation, investigation, proceeding
or suspension between any Seller or any Guarantor, on the one hand,
and any Governmental Authority or any other Person;
iv) any material change in accounting policies or financial
reporting practices of any Seller or any Guarantor;
v) the occurrence of any material employment dispute and a
description of the strategy for resolving it; and
vi) any event, circumstance or condition that has resulted, or
has a reasonable possibility of resulting, in either a Material
Adverse Change with respect to any Seller or any Guarantor or a
Material Adverse Effect.
i. Maintenance of Licenses. Except as would not be reasonably likely
to have a Material Adverse Effect, (i) each Seller and each Guarantor shall
maintain, all material licenses, permits or other approvals necessary for
each Seller and each Guarantor to conduct its business and to perform its
obligations under the Program Documents, and (ii) each Seller and each
Guarantor shall conduct its business in accordance with applicable law.
j. No Withholdings for Taxes. Any payments made by the related Seller
to Buyer shall be free and clear of, and without deduction or withholding
for, any taxes; provided, however, that if the related Seller shall be
required by law to deduct or withhold any taxes from any sums payable to
Buyer, then the related Seller shall (A) make such deductions or
withholdings and pay such amounts to the relevant authority in accordance
with applicable law, (B) pay to Buyer the sum that would have been payable
had such deduction or withholding not been made, and (C) at the time the
Price Differential is paid, pay to Buyer all additional amounts as
specified by Buyer to preserve the after-tax yield Buyer would have
received if such tax had not been imposed. This provision does not apply to
income taxes payable by Buyer on its taxable income.
k. Change in Nature of Business. Neither any Seller nor any Guarantor
shall enter into any new material lines of business except those currently
engaged in as of the date hereof.
l. Limitation on Distributions. If an Event of Default has occurred
and is occurring, neither any Seller nor any Guarantor shall pay any
dividends or distributions with respect to any capital stock or other
equity interests in any Seller or any Guarantor (except any dividends or
distributions required by law in order for such party to maintain its
status as a real estate investment trust), whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
any Seller or any Guarantor.
m. Merger of Guarantor. No Guarantor shall at any time, directly or
indirectly, without Buyer's prior consent (i) liquidate or dissolve or (ii)
form or enter into any
25
partnership, joint venture, syndicate or other combination which would have
a Material Adverse Effect.
n. Insurance. Each Seller will obtain and maintain insurance with
responsible companies in such amounts and against such risks as are
customarily carried by business entities engaged in similar businesses
similarly situated, and will furnish Buyer on request full information as
to all such insurance, and provide within (15) days after receipt of such
request the certificates or other documents evidencing renewal of each such
policy.
o. Affiliate Transactions. Neither any Seller nor any Guarantor will
at any time, directly or indirectly, sell, lease or otherwise transfer any
material property or assets to, or otherwise acquire any material property
or assets from, or otherwise engage in any material transactions with, any
of their Non-Seller Affiliates unless the terms thereof are no less
favorable to the related Seller or such Guarantor, as applicable, than
those that could be obtained at the time of such transaction in an arm's
length transaction with a Person who is not an Affiliate.
p. Change of Fiscal Year. Neither any Seller nor any Guarantor will at
any time, directly or indirectly, except upon thirty (30) days' prior
written notice to Buyer, change the date on which the related Seller's or
such Guarantor's fiscal year begins from the related Seller's or such
Guarantor's current fiscal year beginning date.
q. Excluded Subsidiaries. No material change in the nature of the
business including without limitation, capitalization or change in
significant investors shall occur for any Subsidiaries listed on Exhibit D,
without thirty (30) days prior written notice to the Buyer.
r. Maintenance of Liquidity. At all times NFI shall have, on a
consolidated basis, cash, Cash Equivalents and unused borrowing capacity
under committed warehouse or repurchase facilities ("Liquidity") that could
be drawn against (taking into account required haircuts) in an amount of
not less than $30,000,000. In the event that NFI's Liquidity falls below
$40,000,000 at any time or NFI's management believes such event is
reasonably likely, Sellers shall provide notice of such event or likelihood
of event to the Agent.
s. Maintenance of Adjusted Tangible Net Worth. The Adjusted Tangible
Net Worth of NFI at any time shall be greater than $400,000,000, provided
however that such amount shall be reduced by the amount of the 2006
Dividend.
t. Payment of Dividends. No Guarantor, Seller or Subsidiary of any of
the foregoing shall pay dividends (other than dividends paid in stock)
without the prior consent of Buyer, exclusive of (i) dividends paid,
directly or indirectly through one or more other Subsidiaries, to a Seller
or to a Guarantor and (ii) subject to the further provisions of this clause
(t), NFI's 2006 Dividend to its shareholders. No dividend other than the
2006 Dividend, to the extent permitted by this clause (t), shall be paid in
cash without the prior consent of Buyer.
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As of the date hereof, NFI's best estimate of the maximum amount of
the 2006 Dividend is $175,000,000.
Buyer acknowledges that the 2006 Dividend must be paid in order for
NFI to continue to maintain its status as a REIT, and that such dividend
may be paid in cash or Dividend Securities. Buyer further acknowledges that
U.S. income tax laws require that any Dividend Securities be valued at
their fair market value at the time of issuance (which, in the case of
debt-like securities, may be less than the face amount thereof) for
purposes of determining compliance with the REIT distribution test.
Unless Buyer otherwise consents, the 2006 Dividend shall be paid in
the form of Dividend Securities, provided that if, in the joint
determination of NFI and Buyer, either excess cash is available or it is
financially impractical for NFI to satisfy the requirement to pay the 2006
Dividend entirely by means of Dividend Securites, then all or a portion of
the 2006 Dividend may be paid in cash, provided further that (i) Buyer will
permit all or a portion of the 2006 Dividend to be paid in cash if,
following payment in cash of such 2006 Dividend, NFI's Liquidity shall be
greater than $125,000,000 and (ii) NFI will neither pay nor declare the
2006 Dividend earlier than fifteen (15) days before payment or declaration
of such dividend is required by applicable law.
Buyer hereby waives, and will cause its Affiliates likewise to waive,
any covenant herein, in the Master Repurchase Agreement (2007 Servicing
Rights), in the Existing Agreements and in any replacement facility which
covenant would prevent or restrict the issuance of any Dividend Securities,
or which would result in the occurrence of an Event of Default hereunder or
thereunder as a result of the issuance of such Dividend Securities.
u. Backup Servicing. If the Agent reasonably believes that an event
may occur which would cause a Trustee to be permitted to require a backup
servicer under a Governing Agreement, the Agent may request that the
applicable Seller enter into backup servicing arrangements reasonably
acceptable to the Agent within thirty (30) days. If an event occurs that
would permit the Trustee to require the servicer to be replaced, the Agent
may request that the applicable Seller replace the servicer with a servicer
acceptable to the Agent, subject to the requirements, if any, of the
underlying Governing Agreements.
v. Margin Calls. If at any time after the date hereof Sellers or any
of their Affiliates receive margin calls under any repurchase or financing
facilities in excess of $5,000,000 in the aggregate, Seller shall provide
notice to Buyer and Buyer shall cause the related Seller to repurchase the
assets subject to such margin calls and include such assets under the
Existing Agreements (provided there is additional capacity) on mutually
acceptable terms to Buyer and Sellers.
14. REPURCHASE DATE PAYMENTS/COLLECTIONS
On each Repurchase Date, the related Seller shall remit or shall cause to
be remitted to Buyer the Repurchase Price.
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15. CHANGE OF LAW
a. If Buyer determines that the introduction of, any change in, or the
interpretation or administration of any requirement of law has made it unlawful
or commercially impracticable to engage in any Transactions with a Pricing Rate
based on LIBOR, then the related Seller (i) shall, upon its receipt of notice of
such fact and demand from Buyer, repurchase the Purchased Assets subject to the
Transaction on the next succeeding Business Day and, at the related Seller's
election, concurrently enter into a new Transaction with Buyer with a Pricing
Rate based on the Prime Rate plus the margin set forth in the Side Letter as
part of the Pricing Rate and (ii) may elect, by giving notice to Buyer, that all
new Transactions shall have Pricing Rates based on the Prime Rate plus such
margin.
b. If Buyer determines in its sole discretion that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on Buyer's capital or on the capital of any Affiliate of Buyer as a
consequence of such Change in Law on this Agreement, then from time to time the
related Seller will compensate Buyer or Buyer's Affiliate, as applicable, for
such reduced rate of return suffered as a consequence of such Change in Law on
terms similar to those imposed by Buyer on its other similarly affected
customers. Buyer shall provide the related Seller with prompt notice as to any
Change in Law. Notwithstanding any other provisions in this Agreement, in the
event of any such Change in Law, the related Seller will have the right to
terminate all Transactions then outstanding without any prepayment penalty as of
a date selected by the related Seller, which date shall be prior to the then
applicable Repurchase Date and which date shall thereafter for all purposes
hereof be deemed to be the Repurchase Date. Nothing in this Section 15 shall be
deemed to limit Buyer's ability to invoke a Margin Call pursuant to Section 6.
16. SUBSTITUTION
a. The related Seller may, subject to agreement with and acceptance by
Buyer, substitute other assets which are substantially the same as the Purchased
Assets (the "Substitute Assets") for any Purchased Assets. Such substitution
shall be made by transfer to Buyer of such other Substitute Assets and transfer
to the related Seller of such Purchased Assets. After substitution, the
Substitute Assets shall be deemed to be Purchased Assets.
b. In the case of any Transaction for which the Repurchase Date is other
than the Business Day immediately following the Purchase Date and with respect
to which the related Seller does not have any existing right to Substitute
Assets for the Purchased Assets, the related Seller shall have the right,
subject to the proviso to this sentence, upon notice to Buyer, which notice
shall be given at or prior to 10 a.m. (New York City time) on the second
preceding Business Day, to Substitute Assets for any Purchased Assets; provided,
however, that Buyer may elect, by the close of business on the Business Day
following which such notice is received, or by the close of the next Business
Day if notice is given after 10 a.m. (New York City time) on such day, not to
accept such substitution. In the event such substitution is accepted by Buyer,
such substitution shall be made by the related Seller's transfer to Buyer of
such Substitute Assets and Buyer's transfer to the related Seller of such
Purchased Assets, and after such substitution, the Substitute Assets shall be
deemed to be Purchased Assets. In the event Buyer elects not to accept such
substitution, Buyer shall offer the related Seller the right to terminate the
Transaction.
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c. In the event the related Seller exercises its right to substitute or
terminate under subsection (b), the related Seller shall be obligated to pay to
Buyer, by the close of the Business Day of such substitution, as the case may
be, an amount equal to (A) Buyer's actual cost in bona fide third party
transactions (including all fees, expenses and commissions) of (i) entering into
replacement transactions; (ii) entering into or terminating hedge transactions;
and/or (iii) terminating transactions or substituting securities in like
transactions with third parties in connection with or as a result of such
substitution or termination, and (B) to the extent Buyer determines not to enter
into replacement transactions, the Breakage Costs incurred by Buyer directly
arising or resulting from such substitution or termination. Nothing in this
Section 16 shall be deemed to limit Buyer's ability to invoke a Margin Call
pursuant to Section 6.
17. REPURCHASE TRANSACTIONS
Buyer may, in its sole election, engage in repurchase transactions with the
Purchased Assets or otherwise pledge, hypothecate, assign, transfer or otherwise
convey the Purchased Assets with a counterparty of Buyer's choice, provided that
such counterparty is a REIT with respect to the TMP REIT Securities and that, in
all cases, such counterparty provides Sellers with executed tax forms claiming a
zero tax withholding rate, in all cases subject to Buyer's obligation to
reconvey the Purchased Assets (and not substitutes therefor) on the Repurchase
Date. In the event Buyer engages in a repurchase transaction with any of the
Purchased Assets or otherwise pledges or hypothecates any of the Purchased
Assets, Buyer shall have the right to assign to Buyer's counterparty any of the
applicable representations or warranties with respect to the Purchased Assets
hereunder and the remedies for breach thereof, as they relate to the Purchased
Assets that are subject to such repurchase transaction.
18. EVENTS OF DEFAULT
With respect to any Transactions covered by or related to this Agreement,
the occurrence of any of the following events shall constitute an "Event of
Default":
a. any Seller fails to transfer the Purchased Assets to Buyer on the
applicable Purchase Date (provided Buyer has tendered the related Purchase
Price);
b. any Seller either fails to repurchase the Purchased Assets on the
applicable Repurchase Date or fails to perform its obligations under Section 6;
c. either any Seller or a Guarantor shall fail to perform, observe or
comply with any other material term, covenant or agreement contained in the
Program Documents and such failure is not cured within the time period expressly
provided or, if no such cure period is provided, within two (2) Business Days of
the earlier of (i) such party's receipt of written notice from Buyer of such
breach or (ii) the date on which such party obtains notice or knowledge of the
facts giving rise to such breach;
d. any representation or warranty made by any Seller or a Guarantor (or any
of any Seller's or such Guarantor's officers) in the Program Documents or in any
other document delivered
29
in connection therewith shall have been incorrect or untrue in any material
respect when made or repeated or to have been made or repeated if such
inaccuracy would constitute Material Adverse Change with respect to any Seller
or Guarantor, except for the representations and warranties set forth in Section
12(n) and Exhibit C hereof with respect to the Residual Securities and
Collateral, which shall be considered solely for determining whether such assets
constitute Eligible Assets and the Market Value thereof;
e. any Seller, any Guarantor, or any of any Seller's or any Guarantor's
Subsidiaries shall fail to pay any of any Seller's, such Guarantor's or any
Seller's or such Guarantor's Subsidiaries' Indebtedness, or any interest or
premium thereon when due (whether by scheduled maturity, requirement prepayment,
acceleration, demand or otherwise), or shall fail to make any payment when due
under any Seller's, such Guarantor's or any Seller's or such Guarantor's
Subsidiaries' Guarantee of another person's Indebtedness for borrowed money, and
such failure shall entitle any related counterparty to declare any such
Indebtedness or Guarantee to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof provided that such Indebtedness is in excess of (i) $5,000,000
with respect to the Guarantor and (ii) $1,000,000 with respect to all other
parties referenced in this subsection (e) and such failure is not cured within
two (2) Business Days;
f. a custodian, receiver, conservator, liquidator, trustee, sequestrator or
similar official for any Seller, a Guarantor or any of any Seller's or a
Guarantor's Subsidiaries, or of any of any Seller's, a Guarantor's or their
respective Property (as a debtor or creditor protection procedure), is appointed
or takes possession of such property; or any Seller, a Guarantor or any of any
Seller's or a Guarantor's Subsidiaries generally fails to pay any Seller's, such
Guarantor's or any Seller's or such Guarantor's Subsidiaries' debts as they
become due; or any Seller, a Guarantor or any of any Seller's or a Guarantor's
Subsidiaries is adjudicated bankrupt or insolvent; or an order for relief is
entered under the Federal Bankruptcy Code, or any successor or similar
applicable statute, or any administrative insolvency scheme, against any Seller,
a Guarantor or any of any Seller's or a Guarantor's Subsidiaries; or any of any
Seller's, Guarantor's or any Seller's or a Guarantor's Subsidiaries' Property is
sequestered by court or administrative order; or a petition is filed against any
Seller, a Guarantor or any of any Seller's or a Guarantor's Subsidiaries under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, moratorium, delinquency or liquidation law of any jurisdiction,
whether now or subsequently in effect;
g. any Seller, a Guarantor or any of any Seller's or a Guarantor's
Subsidiaries files a voluntary petition in bankruptcy seeks relief 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 consents to the
filing of any petition against it under any such law; or consents to the
appointment of or taking possession by a custodian, receiver, conservator,
trustee, liquidator, sequestrator or similar official for any Seller, any
Guarantor or any of any Seller's or any Guarantor's Subsidiaries, or of all or
any part of any Seller's, any Guarantor's or any Seller's or any Guarantor's
Subsidiaries' Property; or makes an assignment for the benefit of any Seller,
any Guarantor or any Seller's or any Guarantor's Subsidiaries' creditors;
h. any final, nonappealable judgment or order for the payment of money in
excess of (i) $5,000,000 with respect to the Guarantor and (ii) $1,000,000 with
respect to all other parties
30
referenced in this subsection (h), in the aggregate (to the extent that it is,
in the reasonable determination of Buyer, uninsured and provided that any
insurance or other credit posted in connection with an appeal shall not be
deemed insurance for these purposes) shall be rendered against any Seller, the
Guarantor or any of Sellers' or Guarantor's Affiliates and Subsidiaries by one
or more courts, administrative tribunals or other bodies having jurisdiction
over them and the same shall not be discharged (or provisions shall not be made
for such discharge), satisfied, or bonded, or a stay of execution thereof shall
not be procured, within sixty (60) days from the date of entry thereof and any
Seller, the Guarantor or any of Sellers' or Guarantor's Affiliates and
Subsidiaries, as applicable, shall not, within said period of sixty (60) days,
appeal therefrom and cause the execution thereof to be stayed during such
appeal;
i. any Governmental Authority or any person, agency or entity acting or
purporting to act under governmental authority shall have taken any action to
condemn, seize or appropriate, or to assume custody or control of, all or any
substantial part of the Property of any Seller, any Guarantor or any of any
Seller's or any Guarantor's Subsidiaries, or shall have taken any action to
displace the management of any Seller, any Guarantor or any of any Seller's or
any Guarantor's Subsidiaries or to materially curtail its authority in the
conduct of the business of any Seller, any Guarantor or any of any Seller's or
any Guarantor's Subsidiaries, or takes any action in the nature of enforcement
to remove or materially limit or restrict the approval of any Seller, any
Guarantor or any of any Seller's or any Guarantor's Subsidiaries as an issuer,
buyer or a seller/servicer of the Purchased Assets or similar securities;
j. any Seller, any Guarantor or any of any Seller's or any Guarantor's
Subsidiaries shall default under, or fail to perform as requested under, or
shall otherwise breach the material terms of any instrument, agreement or
contract relating to Indebtedness, and such default, failure or breach shall
entitle any counterparty to declare an amount of such Indebtedness in excess of
(i) $5,000,000 with respect to the Guarantor and (ii) $1,000,000 with respect to
all other parties referenced in this subsection (j), to be due and payable prior
to the maturity thereof;
k. in the reasonable good faith judgment of Buyer any Material Adverse
Change shall have occurred with respect to the financial condition of NFI and
its Subsidiaries taken as a whole;
l. any Seller or any Guarantor shall admit in writing its inability to, or
intention not to, perform any of any Seller's or such Guarantor's respective
material Obligations;
m. any Seller or any Guarantor dissolves or sells, transfers, or otherwise
disposes of a material portion of any Seller's or such Guarantor's (as
applicable) business or assets (other than pursuant to a securitization or
similar transaction in the ordinary course of business) unless Buyer's written
consent is given;
n. this Agreement shall for any reason cease to create a valid, first
priority security interest or ownership interest upon transfer in any material
portion of the Purchased Assets or Collateral purported to be covered hereby;
31
o. either any Seller's or any Guarantor's audited annual financial
statements or the notes thereto or other opinions or conclusions stated therein
shall be qualified or limited by reference to the status of any Seller or such
Guarantor as a "going concern" or a reference of similar import;
p. the ratio of NFI's Adjusted Tangible Net Worth to Required Equity on a
consolidated basis at any date is less than 1.0:1.0;
q. the Adjusted Tangible Net Worth of NFI, on a consolidated basis, is less
than or equal to $400,000,000 at any time, provided that such amount shall be
reduced by the amount of the 2006 Dividend;
r. any (a) termination by any Seller of any Servicer or subservicer or the
Mortgage Assets without the prior written consent of Buyer to the extent any
Seller's consent is required for such termination or (b) amendment of any
Servicing Agreement without the prior written consent of Buyer to the extent any
Seller's consent is required for such occurrences, (c) failure by any Seller (if
it is the Servicer) or any Servicer to service the Mortgage Assets in accordance
with (i) industry standards for similar loans with third parties or (ii) the
standards set forth in the Servicing Agreement;
s. any failure of NFI, on a consolidated basis, to maintain Liquidity of at
least $30,000,000 at any time or failure of NFI to notify the Agent if NFI's
Liquidity falls below $45,000,000 at any time;
t. any failure by Sellers or Guarantors to pay any Price Differential,
Margin Deficit or other amount payable under this Agreement or the Existing
Agreements after any applicable grace periods;
u. any event of default under the Existing Agreements;
v. any Person shall engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, which
could reasonably be expected to have a Material Adverse Effect;
w. failure of the Sellers to provide same day notification to Buyer of any
margin call under any repurchase or financing facility if such margin call is
made before 1:00 p.m. (NYC time); otherwise, if such margin call is made after
1:00 p.m. (NYC time), failure to provide notification to Buyer by 1:00 pm (NYC
time) the following day;
x. failure to allow Buyer to exercise its options as set forth in Section
13(v) hereof with respect to any margin calls under any repurchase or financing
facility which exceeds $5,000,000 in the aggregate; or
y. failure to have the TMP REIT Securities be owned by a REIT (unless such
failure is due to the action of the Buyer or Agent in not registering such TMP
REIT Securities in the name of a REIT or qualified REIT subsidiary).
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19. REMEDIES
Upon the occurrence of an Event of Default, Buyer, at its option, shall
have any or all of the following rights and remedies, which may be exercised by
Buyer in good faith:
a. The Repurchase Date for each Transaction hereunder shall be deemed
immediately to occur.
b. The related Seller's obligations hereunder to repurchase all Purchased
Assets at the Repurchase Price therefor on the Repurchase Date in such
Transactions shall thereupon become immediately due and payable; all Income paid
after such exercise or deemed exercise shall be retained by Buyer and applied to
the aggregate Repurchase Prices and any other amounts owing by the related
Seller hereunder; the related Seller and each Guarantor shall immediately
deliver to Buyer or its designee any and all original papers, records and files
relating to the Purchased Assets subject to such Transaction then in any
Seller's and any Guarantor's possession and/or control; and all right, title and
interest in and entitlement to such Purchased Assets thereon shall be deemed
transferred to Buyer.
c. Buyer may (A) sell, on or following the Business Day following the date
on which the Repurchase Price became due and payable pursuant to Section 19(b)
without notice or demand of any kind, at a public or private sale and at such
price or prices as Buyer may reasonably deem satisfactory any or all Purchased
Assets or (B) in its sole discretion elect, in lieu of selling all or a portion
of such Purchased Assets, to give the related Seller credit for such Purchased
Assets in an amount equal to the Market Value of the Purchased Assets against
the aggregate unpaid Repurchase Price and any other amounts owing by the related
Seller hereunder. The related Seller shall remain liable to Buyer for any
amounts that remain owing to Buyer following a sale or credit under the
preceding sentence. The proceeds of any disposition of Purchased Assets shall be
applied first to the reasonable costs and expenses incurred by the Buyer in
connection with or as a result of an Event of Default; second to Breakage Costs,
costs of cover and/or related hedging transactions; third to the aggregate
Repurchase Prices; and fourth to all other Obligations.
d. The Buyer covenants and agrees that it shall not sell the Purchased
Assets to any entity that is not a REIT to the extent that any requirement
exists under the Code at such time that the Purchased Assets be held by a REIT
in order for the trust issuing any such Purchased Assets to remain exempt from
federal income taxes or have the TMP REIT Securities owned for tax purposes by
any entity that is not a REIT or a qualified REIT subsidiary.
e. The parties recognize that it may not be possible to purchase or sell
all of the Purchased Assets on a particular Business Day, or in a transaction
with the same purchaser, or in the same manner because the market for such
Purchased Assets may not be liquid. In view of the nature of the Purchased
Assets, the parties agree that liquidation of a Transaction or the underlying
Purchased Assets does not require a public purchase or sale and that a good
faith private purchase or sale shall be deemed to have been made in a
commercially reasonable manner. Accordingly, the Buyer may elect the time and
manner of liquidating any Purchased Asset and nothing contained herein shall
obligate Buyer to liquidate any Purchased Asset on the occurrence of an Event of
Default or to liquidate all Purchased Assets in the same manner or on the same
Business Day or constitute a
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waiver of any right or remedy of Buyer. Notwithstanding the foregoing, the
parties to this Agreement agree that the Transactions have been entered into in
consideration of and in reliance upon the fact that all Transactions hereunder
constitute a single business and contractual obligation and that each
Transaction has been entered into in consideration of the other Transactions.
f. In addition to its rights hereunder, Buyer shall have the right to
proceed against any of the related Seller's assets which may be in the
possession of Buyer, Buyer's Affiliates or its designee, including the right to
liquidate such assets and to set-off the proceeds against monies owed by the
related Seller to Buyer pursuant to this Agreement. Buyer may set off cash, the
proceeds of the liquidation of the Purchased Assets and Additional Purchased
Assets, any other Collateral or its proceeds and all other sums or obligations
owed by Buyer to the related Seller hereunder against all of the related
Seller's Obligations to Buyer, whether under this Agreement, under a
Transaction, or under any other agreement between the parties (including,
without limitation, the Existing Agreements), or otherwise, whether or not such
Obligations are then due, without prejudice to Buyer's right to recover any
deficiency.
g. Buyer may direct all Persons servicing the Purchased Assets to take such
action with respect to the Purchased Assets as Buyer determines appropriate.
h. The related Seller shall be liable to Buyer for the amount of all
expenses (plus interest thereon at a rate equal to the Default Rate), and
Breakage Costs and all costs and expenses incurred within 30 days of the Event
of Default in connection with hedging or covering transactions related to the
Purchased Assets.
i. Each Seller and each Guarantor shall cause all sums received by it with
respect to the Purchased Assets to be remitted to Buyer (or such other Person as
Buyer may direct) after receipt thereof.
j. Buyer shall without regard to the adequacy of the security for the
Obligations, be entitled to the appointment of a receiver by any court having
jurisdiction, without notice, to take possession of and protect, collect,
manage, liquidate, and sell the Purchased Assets and any other Collateral or any
portion thereof, collect the payments due with respect to the Purchased Assets
and any other Collateral or any portion thereof, and do anything that the Buyer
is authorized hereunder to do. The related Seller shall pay all costs and
expenses incurred by Buyer in connection with the appointment and activities of
such receiver.
k. Buyer may enforce its rights and remedies hereunder without prior
judicial process or hearing, and the related Seller hereby expressly waives, to
the extent permitted by law, any right the related Seller might otherwise have
to require Buyer to enforce its rights by judicial process. The related Seller
also waives, to the extent permitted by law, any defense the related Seller
might otherwise have to the Obligations, arising from use of nonjudicial
process, enforcement and sale of all or any portion of the Purchased Assets and
any other Collateral or from any other election of remedies. The related Seller
recognizes that nonjudicial remedies are consistent with the usages of the
trade, are responsive to commercial necessity and are the result of a bargain at
arm's length.
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l. In addition to all the rights and remedies specifically provided herein,
Buyer shall have all other rights and remedies provided by applicable federal,
state, foreign, and local laws, whether existing at law, in equity or by
statute.
m. Upon the occurrence of an Event of Default, Buyer shall have, except as
otherwise expressly provided in this Agreement, the right to exercise any of its
rights and/or remedies without presentment, demand, protest or further notice of
any kind other than as expressly set forth herein, all of which are hereby
expressly waived by the related Seller.
n. The related Seller hereby authorizes Buyer, at the related Seller's
expense, to file such financing statement or statements relating to the
Purchased Assets and the Collateral without the related Seller's signature
thereon as Buyer at its option may deem appropriate, and appoints Buyer as the
related Seller's attorney-in-fact to execute any such financing statement or
statements in the related Seller's name and to perform all other acts which
Buyer deems appropriate to perfect and continue the lien and security interest
granted hereby and to protect, preserve and realize upon the Purchased Assets
and the Collateral, including, but not limited to, the right to endorse notes,
complete blanks in documents and execute assignments on behalf of the related
Seller as its attorney-in-fact. This power of attorney is coupled with an
interest and is irrevocable without Buyer's consent.
o. Buyer may direct a Seller, or its Affiliate, to resign as the servicer
of the Mortgage Assets and to cooperate with any successor servicer.
20. DELAY NOT WAIVER; REMEDIES ARE CUMULATIVE
No failure on the part of Buyer to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Buyer of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All rights and remedies of Buyer provided for
herein are cumulative and in addition to any and all other rights and remedies
provided by law, the Program Documents and the other instruments and agreements
contemplated hereby and thereby, and are not conditional or contingent on any
attempt by Buyer to exercise any of its rights under any other related document.
Buyer may exercise at any time after the occurrence of an Event of Default one
or more remedies, as it so desires, and may thereafter at any time and from time
to time exercise any other remedy or remedies.
21. USE OF EMPLOYEE PLAN ASSETS
No assets of an employee benefit plan subject to any provision of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") shall be
used by either party hereto in a Transaction.
22. INDEMNITY
a. The related Seller agrees to pay on demand (i) all reasonable
out-of-pocket costs and expenses of Agent and Buyer in connection with the
preparation, execution, delivery, modification
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and amendment of this Agreement (including, without limitation, (A) all
collateral review and UCC search and filing fees and expenses and (B) the
reasonable fees and expenses of counsel for Agent and Buyer with respect to
advising Agent and Buyer as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under this
Agreement, with respect to negotiations with the related Seller or with other
creditors of the related Seller or any of its Subsidiaries arising out of
any-Default or any events or circumstances that may arise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto); and (ii) all costs and expenses
of Agent and Buyer in connection with the enforcement of this Agreement, whether
in any action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without limitation,
the reasonable fees and expenses of counsel for Agent and Buyer) whether or not
the transactions contemplated hereby are consummated.
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b. The related Seller agrees to indemnify and hold harmless Agent and each
of its respective Affiliates and Buyer and each of its respective Affiliates and
their officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against (and will reimburse each Indemnified Party as the same
is incurred) any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel and
allocated costs of internal counsel) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation or other proceeding (whether or not such
Indemnified Party is a party thereto) relating to, resulting from or arising out
of any of the Program Documents and all other documents related thereto, any
breach of a representation or warranty of any Seller or any Guarantor or any
Seller's or any Guarantor's officers in this Agreement or any other Program
Document, and all actions taken pursuant thereto) (i) the Transactions, the
actual or proposed use of the proceeds of the Transactions, this Agreement or
any of the transactions contemplated thereby, including, without limitation, any
acquisition or proposed acquisition or (ii) the actual or alleged presence of
hazardous materials on any Property or any environmental action relating in any
way to any Property, except to the extent such claim, damage, class, liability
or expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct or is the result of a claim made by any Seller or any
Guarantor against the Indemnified Party, and the related Seller or such
Guarantor is ultimately the successful party in any resulting litigation or
arbitration. The related Seller also agrees not to assert any claim against
Agent or any of its Affiliates, Buyer or any of its Affiliates, or any of their
respective officers, directors, employees, attorneys and agents, on any theory
of liability, for special, indirect, consequential or punitive damages arising
out of or otherwise relating to the Program Documents, the actual or proposed
use of the proceeds of the Transactions, this Agreement or any of the
transactions contemplated thereby. THE FOREGOING INDEMNITY AND AGREEMENT NOT TO
ASSERT CLAIMS EXPRESSLY APPLIES, WITHOUT LIMITATION, TO THE NEGLIGENCE (BUT NOT
GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT) OF THE INDEMNIFIED PARTIES.
c. Without limitation on the provisions of Section 4, if any payment of the
Repurchase Price of any Transaction is made by the related Seller other than on
the then scheduled Repurchase Date thereto as a result of an acceleration of the
Repurchase Date pursuant to Section 19 or for any other reason, the related
Seller shall, except as otherwise provided in Sections 15 and 24, upon demand by
Buyer, pay to Buyer any Breakage Costs incurred as of a result of such payment.
d. If the related Seller fails to pay when due any costs, expenses or other
amounts payable by it under this Agreement, including, without limitation,
reasonable fees and expenses of counsel and indemnities, such amount may be paid
on behalf of the related Seller by Buyer, in its sole discretion.
e. Without prejudice to the survival of any other agreement of the related
Seller hereunder, the easements and obligations of the related Seller contained
in this Section shall survive the payment in full of the Repurchase Price and
all other amounts payable hereunder and delivery of the Purchased Assets by
Buyer against full payment therefor.
23. WAIVER OF REDEMPTION AND DEFICIENCY RIGHTS
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The related Seller hereby expressly waives, to the fullest extent permitted
by law, every statute of limitation on a deficiency judgment, any reduction in
the proceeds of any Purchased Assets as a result of restrictions upon Buyer
contained in the Program Documents or any other instrument delivered in
connection therewith, and any right that it may have to direct the order in
which any of the Purchased Assets shall be disposed of in the event of any
disposition pursuant hereto.
24. REIMBURSEMENT
All sums reasonably expended by Buyer in connection with the exercise of
any right or remedy provided for herein shall be and remain the related Seller's
obligation. The related Seller agrees to pay, with interest at the Default Rate
to the extent that an Event of Default has occurred, the reasonable
out-of-pocket expenses and reasonable attorneys' fees incurred by Buyer in
connection with the preparation, enforcement or administration of the Program
Documents, the taking of any action, including legal action, required or
permitted to be taken by Buyer (without duplication to Buyer) pursuant thereto,
any "due diligence" or loan agent reviews conducted by Buyer or on their behalf
or by refinancing or restructuring in the nature of a "workout". If Buyer
determines that, due to the introduction of, any change in, or the compliance by
Buyer with (i) any eurocurrency reserve requirement or (ii) the interpretation
of any law, regulation or any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be an increase in the cost to Buyer in engaging in the present or any
future Transactions, then the related Seller agrees to pay to Buyer, from time
to time, upon demand by Buyer the actual cost of additional amounts as specified
by Buyer to compensate Buyer for such increased costs. Notwithstanding any other
provisions in this Agreement, in the event of any such change in the
eurocurrency reserve requirement or the interpretation of any law, regulation or
any guideline or request from any central bank or other Governmental Authority,
the related Seller will have the right to terminate all Transactions then
outstanding as of a date selected by the related Seller, which date shall be
prior to the applicable Repurchase Date and which date shall thereafter for all
purposes hereof, be deemed to be the Repurchase Date. In addition, Buyer shall
promptly notify Seller if any events in clause (i) or (ii) of this Section 24
occur.
25. FURTHER ASSURANCES
The Sellers and each Guarantor agree to do such further acts and things and
to execute and deliver to Buyer such additional assignments, acknowledgments,
agreements, powers and instruments as are reasonably required by Buyer to carry
into effect the intent and purposes of this Agreement, to perfect the interests
of Buyer in the Purchased Assets or to better assure and confirm unto Buyer its
rights, powers and remedies hereunder.
26. ENTIRE AGREEMENT; PRODUCT OF NEGOTIATION
This Agreement supersedes and integrates all previous negotiations,
contracts, agreements and understandings between the parties relating to a sale
and repurchase of Purchased Assets thereto, and it, together with the other
Program Documents, and the other documents delivered pursuant hereto or thereto,
contains the entire final agreement of the parties. No prior negotiation,
agreement, understanding or prior contract shall have any validity therefor.
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27. TERMINATION
This Agreement shall remain in effect until the earliest of the following
(the "Termination Date"): (i) April 16, 2008 (the "Maturity Date"), subject to
automatic renewal for another term of 364 days to the extent Buyer fails to
provide Sellers with at least 120 days notice of Buyer's intention to terminate
this Agreement on the Maturity Date (provided that such automatic renewal shall
occur no more than once), (ii) at Buyer's option upon the occurrence of an Event
of Default, (iii) Buyer, at its option, terminates the Agreement upon the
occurrence of a Change of Control at any time within ninety (90) days following
such Change of Control or (iv) at Sellers' option upon five (5) business days
notice to Buyer of Sellers' intention to terminate this Agreement. However, no
such termination shall affect the related Seller's outstanding obligations to
Buyer at the time of such termination. The related Seller's obligations to
indemnify Buyer pursuant to this Agreement shall survive the termination hereof.
Any such termination pursuant to clauses (ii), (iii) or (iv) above shall require
payment by Sellers of the Repurchase Price plus a fee equal to the amount set
forth in the Side Letter.
28. ASSIGNMENT
The Program Documents are not assignable by the related Seller. Buyer may
from time to time assign all or a portion of its rights and obligations under
this Agreement and the Program Documents without consent of the Sellers;
provided, however, that Buyer shall maintain, for review by the related Seller
upon written request, a register of assignees and a copy of an executed
assignment and acceptance by Buyer and assignee ("Assignment and Acceptance"),
specifying the percentage or portion of such rights and obligations assigned and
such assignment will be to a REIT with respect to the TMP REIT Securities and,
in all cases, that such assignee will provide tax forms to Sellers claiming a
zero rate of withholding. Upon such assignment, (a) such assignee shall be a
party hereto and to each Program Document to the extent of the percentage or
portion set forth in the Assignment and Acceptance, and shall succeed to the
applicable rights and obligations of Buyer hereunder, and (b) Buyer shall, to
the extent that such rights and obligations have been so assigned by it to
another Person approved by the related Seller (such approval not to be
unreasonably withheld) which assumes the obligations of Buyer, be released from
its obligations hereunder accruing thereafter and under the Program Documents.
Unless otherwise stated in the Assignment and Acceptance, the related Seller
shall continue to take directions solely from Buyer unless otherwise notified by
Buyer in writing. Buyer may distribute to any prospective assignee any document
or other information delivered to Buyer by the related Seller. Notwithstanding
any assignment by Buyer pursuant to this Section 28, Buyer shall remain liable
as to the Transactions. Buyer and Agent agree that, provided that no Event of
Default exists under this Agreement or the Master Repurchase Agreement
(Servicing Rights), any assignment of this Agreement will be only done in
connection with an assignment of the Master Repurchase Agreement (Servicing
Rights) in a single transaction.
29. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement nor any consent
to any failure to comply herewith or therewith shall in any event be effective
unless the same shall be in writing and signed by Sellers and Buyer, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
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30. SEVERABILITY
If any provision of any Program Document is declared invalid by any court
of competent jurisdiction, such invalidity shall not affect any other provision
of the Program Documents, and each Program Document shall be enforced to the
fullest extent permitted by law.
31. BINDING EFFECT: GOVERNING LAW
This Agreement shall be binding and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Sellers may not
assign or transfer any of its rights or obligations under this Agreement or any
other Program Document without the prior written consent of Buyer. THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAW OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF.
32. CONSENT TO JURISDICTION
SELLERS HEREBY WAIVE TRIAL BY JURY. SELLERS HEREBY IRREVOCABLY CONSENT TO
THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK, OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ARISING OUT
OF OR RELATING TO THE PROGRAM DOCUMENTS IN ANY ACTION OR PROCEEDING. SELLERS
HEREBY SUBMIT TO, AND WAIVE ANY OBJECTION SELLERS MAY HAVE TO, NON-EXCLUSIVE
PERSONAL JURISDICTION AND VENUE IN ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ AND THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, WITH RESPECT
TO ANY DISPUTES ARISING OUT OF OR RELATING TO THE PROGRAM DOCUMENTS.
33. SINGLE AGREEMENT
Each Seller, each Guarantor and Buyer acknowledge that, and have entered
hereinto and will enter into each Transaction hereunder in consideration of and
in reliance upon the fact that, all Transactions hereunder constitute a single
business and contractual relationship and have been made in consideration of
each other. Accordingly, each Seller, each Guarantor and Buyer each agree (i) to
perform all of its obligations in respect of each Transaction hereunder, and
that a default in the performance of any such obligations shall constitute a
default by it in respect of all Transactions hereunder, and (ii) that payments,
deliveries and other transfers made by any of them in respect of any Transaction
shall be deemed to have been made in consideration of payments, deliveries and
other transfer in respect of any other Transaction hereunder, and the
obligations to make any such payments, deliveries and other transfers may be
applied against each other and netted.
34. INTENT
Sellers, Guarantors and Buyer recognize that each Transaction is a
"securities contract" as that term is defined in Section 741 of Title 11 of the
United States Code, as amended ("USC").
It is understood that a Buyer's right to liquidate the Purchased Assets
delivered to it in connection with the Transactions hereunder or to exercise any
other remedies pursuant to Section 19 hereof is a contractual right to liquidate
such Transaction as described in Sections 555 and 559 of Title 11 of the USC.
35. NOTICES AND OTHER COMMUNICATIONS
Except as provided herein, any notice required or permitted by this
Agreement shall be in writing and shall be effective and deemed delivered only
when received by the party to which it is sent; provided, however, that a
facsimile transmission shall be deemed to be received when transmitted so long
as the transmitting machine has provided an electronic confirmation (without
error message) of such transmission. Notice to NMI, NFI or NFI Holding shall
constitute notice to each and all of such entities. Any such notice shall be
sent to a party at the address or facsimile transmission number set forth below:
if to NMI, NCFLLC or NCFC:
NovaStar Mortgage, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
if to NFI:
NovaStar Financial, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
if to NFI Holding:
NFI Holding Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
if to Wachovia Investment Holdings, LLC:
41
Wachovia Investment Holdings, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: RMC Asset-Backed Lending
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: RMC Asset-Backed Lending
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or, for Transaction Notices and related documents:
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
as such address or number may be changed by like notice.
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36. CONFIDENTIALITY
(a) This Agreement and its terms, provisions, supplements and amendments,
and transactions and notices hereunder, are proprietary to Buyer and Agent and
shall be held by Sellers (and Sellers shall cause each Guarantor to hold it) in
strict confidence and shall not be disclosed to any third party without the
consent of Buyer except for (i) disclosure to each Seller's direct and indirect
parent companies, attorneys, agents or accountants, provided that such attorneys
or accountants likewise agree to be bound by this covenant of confidentiality or
(ii) upon prior written notice to Buyer, which is hereby given with respect to
the Form 8-K NFI will file in connection with entry into this Agreement,
disclosure required by law, rule, regulation or order of a court or other
regulatory body or (iii) with prior written notice to Buyer, any required
Securities and Exchange Commission or state securities' law disclosures or
filings, which shall not include the Side Letter unless otherwise agreed by
Buyer in writing. Notwithstanding anything herein to the contrary, each party
(and each employee, representative, or other agent of each party) may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the transaction and all materials of any kind (including
opinions or other tax analyses) that are provided to it relating to such tax
treatment and tax structure. For this purpose, tax treatment and tax structure
shall not include (i) the identity of any existing or future party (or any
Affiliate of such party) to this Agreement or (ii) any specific pricing
information or other commercial terms, including the amount of any fees,
expenses, rates or payments arising in connection with the transactions
contemplated by this Agreement.
(b) Buyer acknowledges that certain of the information provided to it by or
on behalf of any Seller or the Guarantor in connection with this Agreement and
the transactions contemplated hereby is or may be confidential, and Buyer agrees
that, unless such Seller or the Guarantor, as applicable, shall otherwise agree
in writing (subject to subsections (c) and (d) below), Buyer will not disclose
to any other person or entity any information regarding any non-public financial
statements, reports and other information furnished by any Seller or the
Guarantor to Buyer pursuant to or in connection with any Program Document,
unless such information was known to Buyer on a non-confidential basis prior to
disclosure by any Seller or the Guarantor.
(c) Each party may disclose certain confidential information to (i) any of
such party's attorneys, consultants, accountants, financial advisors and
independent auditors, (ii) any actual or potential assignee or participant of
Buyer under this Agreement, (iii) any municipal, state, federal or other
regulatory body in order to comply with any law, order, regulation, request or
ruling or (iv) in the event such party is legally compelled by subpoena or other
similar process. After an Event of Default, Buyer may disclose any confidential
information in connection with the sale of the Purchased Assets.
(d) Notwithstanding anything contained herein to the contrary, Buyer shall
not disclose or otherwise take any action with respect to any information
furnished by any Seller, the Guarantor or any attorney or other representative
of any Seller or the Guarantor, that would cause any Seller, the Guarantor or
any affiliate thereof, to be in violation of any requirement of any law, rule or
regulation prohibiting the disclosure of information regarding mortgagors.
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37. JOINT AND SEVERAL LIABILITY
The Sellers hereby acknowledge and agree that they are jointly and
severally liable to the Buyer for all representations, warranties, covenants,
obligations and liabilities of each of the Sellers hereunder. The Sellers hereby
further acknowledge and agree that any Default, Event of Default or breach of a
representation, warranty or covenant by any Seller under this Agreement is
hereby considered a Default, Event of Default or breach by each Seller. A
Seller's subrogation claims arising from payments to Buyer shall constitute a
capital investment in another Seller (1)subordinated to any claims of Buyer, and
(2) equal to a ratable share of the equity interests in such Seller. The Sellers
hereby: (a) acknowledge and agree that the Buyer shall have no obligation to
proceed against one Seller before proceeding against the other Seller, (b) waive
any defense to their obligations under this Agreement or any other Program
Document based upon or arising out of the disability or other defense or
cessation of liability of one Seller versus the other or of any other Person,
and (c) waive any right of subrogation or ability to proceed against any Person
or to participate in any security for the Obligations until the Obligations have
been paid and performed in full.
38. CROSS COLLATERALIZATION
The Purchased Assets subject to any Transaction hereunder, purchased assets
pursuant to the Repurchase Agreement (2007 Servicing Rights) or purchased assets
pursuant to any repurchase agreement or similar financing agreement among the
Buyer, Sellers and Guarantors or any affiliates of Sellers or Guarantors
(collectively the "Wachovia Financing Facilities") shall be cross collateralized
with the Purchased Assets subject to any purchase transaction pursuant to any of
the Wachovia Financing Facilities.
[Signature Page Follows]
44
IN WITNESS WHEREOF, Sellers, Guarantors, Buyer and Agent have caused their
names to be signed to this Master Repurchase Agreement by their respective
officers thereunto duly authorized as of the date first above written.
NOVASTAR MORTGAGE, INC., as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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NOVASTAR CERTIFICATES FINANCING LLC,
as Seller
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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NOVASTAR CERTIFICATES FINANCING
CORPORATION, as Seller
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President, Treasurer & Controller
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WACHOVIA INVESTMENT HOLDINGS, LLC, as
Buyer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Director
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WACHOVIA CAPITAL MARKETS, LLC, as Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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Acknowledged and Agreed:
NFI HOLDING CORPORATION, as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President, Treasurer & Controller
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NOVASTAR FINANCIAL, INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
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NOVASTAR MORTGAGE INC., as Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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HOMEVIEW LENDING, INC., as Guarantor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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