MASTER REPURCHASE AGREEMENT (2007 NON-INVESTMENT GRADE SECURITIES) Dated as of May 31, 2007 AMONG: Wachovia Investment Holdings, LLC, as buyer (the "Buyer", which term shall include any "Principal" as defined and provided for in Annex I) 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 jointly and severally, collectively the "Sellers"); and NovaStar Financial, Inc. ("NFI"), as a guarantor and NFI Holding Corporation ("NFI Holding"), as a guarantor (NFI and NFI Holding, each a Guarantor and together, jointly and severally, together the "Guarantors"). 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 1
(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 Non-Investment Grade Securities), as it may be amended, supplemented or otherwise modified from time to time. "Asset-Backed Security" shall mean either (i) a certificate issued under a Trust Agreement representing 100% ownership of a Delaware business trust that has issued bonds secured by a pool of Mortgage Assets originated in accordance with the Underwriting Standards of the applicable Affiliate of the related Seller; (ii) a subordinated bond issued by a Delaware business trust that has issued bonds under an Indenture secured by a pool of Mortgage Assets originated in accordance with the Underwriting Standards of the applicable affiliate of the related Seller; or (iii) a certificate issued under a pooling and servicing agreement secured by a pool of Mortgage Assets. "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. 2
"Change of Control" shall mean any person or group of persons (other than (i) any subsidiary of NFI or (ii) any employee or director benefit plan or stock plan of NFI or any subsidiary of 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 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 of Control Fee" shall have the meaning assigned thereto in the Side Letter. "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). "Commitment Letter" means the commitment letter, dated as of April 28, 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 Fee" shall have the meaning assigned thereto in the Side Letter. "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 Eligible Asset, 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 Eligible Asset. 3
"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 Buyer. "Early Repayment Fee" shall have the meaning assigned thereto in the Side Letter. "Effective Date" shall mean the date set forth on the top of the first page of this Agreement. "Eligible Asset" shall mean, in Buyer's sole discretion, an Asset-Backed Security that is either an Eligible NIM Residual, Eligible Residual or Eligible Subordinate Certificate 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 Seller) 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. "Eligible NIM Residuals" shall mean a non-rated mortgage-backed security that does not have first priority over cash flows consisting of excess interest, prepayment penalties, release of over-collateralization or reserve funds, or any other type of cash flow other than scheduled principal and interest payments (collectively, "Excess Cash Flow"), whether such Excess Cash Flow is from the same securitization or from an underlying interest or interests in another securitization or securitizations. "Eligible Residual" means residual certificates issued from existing securitizations which include either Seller's originated first-lien and second-lien home loans to sub-prime borrowers, which residual certificates may have previously been pledged and included in a net interest margin security and are deemed to be eligible by the Buyer in their sole and absolute discretion. "Eligible Subordinate Certificates" means certificates issued from existing securitizations which include either Seller's originated first lien and second lien home loans to sub prime borrowers, which certificates are rated "Ba1" or "BB+" or below (including non-rated) by a Rating Agency (if the Eligible Subordinate Certificates are rated by more than one Rating Agency, the lowest rating shall be used for purposes of determining eligibility) and which certificates are deemed to be eligible by Buyer in its sole discretion; provided, however, that all rated securities registered for public sale shall not be deemed an Eligible Subordinate Certificate until the expiration of any applicable SEC-mandated "cooling off" period. "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. 4
"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 and NFI Holding. "Guaranty" means the Guaranty of the Guarantors, jointly and severally, in favor of the Buyer, dated as of May 31, 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. "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. 5
"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. "Liquidity" means cash, cash equivalents and the aggregate unused borrowing capacity under the Existing Agreements and Other Facilities that could be drawn against (taking into account required haircuts). "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 Investment Grade Securities)" shall mean that certain Master Repurchase Agreement, to be negotiated, among Variable Funding Corp., as buyer, Wachovia Capital Markets, LLC, as agent, NMI, as a seller, NCFLLC, as a seller and NCFC, as a Seller. "Master Repurchase Agreement (2007 Servicing Advance)" shall mean the master repurchase agreement, to be negotiated, among Wachovia Bank, N.A. as buyer, Wachovia Capital Markets, LLC, as agent and [NovaStar Mortgage Inc.], as seller. "Master Repurchase Agreement (2007 Servicing Rights)" means that certain master repurchase agreement (MSR), dated as of April 25, 2007, among Wachovia Bank, National Association and NovaStar Mortgage, Inc., as amended from time to time. "Master Repurchase Agreement (2007 Whole Loan)" shall mean the master repurchase agreement, to be negotiated, among Wachovia Bank, N.A. as buyer, NFI Repurchase Corporation, as a seller, NMI Repurchase Corporation, as a seller, Acceleron Lending Inc., as a seller, NMI Property Financing, Inc., as a seller and Homeview Lending, Inc., as a seller. "Master Repurchase Agreement (2007 Whole Loan New York)" shall mean the master repurchase agreement, to be negotiated, between Wachovia Bank, N.A., as buyer and NMI, as seller. "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 6
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. "Maximum Combined 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. "Other Facilities" means the repurchase or financing facilities identified on Schedule 4 attached hereto. "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. 7
"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. "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 Eligible Assets 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 Moody's 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. 8
"REIT" shall mean a real estate investment trust, as defined in Section 856 of the Code. "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. "REMIC" means a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code. "Repayment Fee" shall have the meaning assigned thereto in the Side Letter. "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: ---------------------------------------------------------------------------- Percentage Asset Class Multiplier ---------------------------------------------------------------------------- Cash 0% ---------------------------------------------------------------------------- Mortgage Loans held-for-sale including accrued interest 5% ---------------------------------------------------------------------------- Mortgage loans held-in-portfolio including accrued interest 5% (securitized in an owners trust) ---------------------------------------------------------------------------- Mortgage loans held-in-portfolio including accrued interest 1.75% (securitized in a REMIC trust) ---------------------------------------------------------------------------- AAA-Rated I/O and Prepay (P) Certificates booked on-B/S 25% ---------------------------------------------------------------------------- BBB NIM Certificates 25% ---------------------------------------------------------------------------- Residuals from whole loan securitizations 35% ---------------------------------------------------------------------------- Residuals from NIM/CAPS 100% ---------------------------------------------------------------------------- Non-rated subordinate bonds (excluding residuals) 100% ---------------------------------------------------------------------------- 9
---------------------------------------------------------------------------- Percentage Asset Class Multiplier ---------------------------------------------------------------------------- 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% ---------------------------------------------------------------------------- Mortgage-Backed Securities in CDO 5% ---------------------------------------------------------------------------- CDO Equity Sub Notes 100% ---------------------------------------------------------------------------- CDO BBB Bonds 5% ---------------------------------------------------------------------------- Agency Securities 3% ---------------------------------------------------------------------------- Servicing Agreements (Mortgage Servicing Rights) 35% ---------------------------------------------------------------------------- Servicing Advances 15% ---------------------------------------------------------------------------- REO + Non-performing (90+ & foreclosures from bond collateral 35% calls) ---------------------------------------------------------------------------- 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 May 31, 2007, among the Sellers, Guarantors and Buyer. "Structuring Fee" shall have the meaning assigned thereto in the Side Letter. 10
"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 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. "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 that 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 an Asset-Backed 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 JP Morgan Chase 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 JP Morgan 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. b. Interpretation. 11
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 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 12
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 all 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; provided, however, that in no event shall Buyer be obligated to enter into more than four (4) Transactions per month or more than one (1) 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 City time on the second (2nd) Business Day preceding 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 13
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, 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 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 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 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. Sellers hereby agree 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 14
name of Buyer and any ultimate re-registration in the name of Sellers, 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 a 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"). If a Seller fails to satisfy a Margin Deficit in accordance with this Section 6(a), then Buyer may, in its sole discretion, immediately satisfy a Margin Deficit, by netting the purchase price under any Existing Agreement by the amount of such Margin Deficit. Upon such netting, the purchase price under such Existing Agreement shall be increased on a dollar for dollar basis by the amount of such Margin Deficit regardless of whether the maximum aggregate purchase price had already been reached under any such Existing Agreement. 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 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. c. If the Sellers fail to satisfy a Margin Deficit in accordance with Section 6(a) and Section 6(b) hereof, then Buyer may, in its sole discretion, satisfy a Margin Deficit, by netting the purchase price under any Existing Agreement by the amount of such Margin Deficit. Upon such netting, the purchase price under such Existing Agreement shall be increased on a dollar for dollar basis by the amount of such Margin Deficit regardless of whether the maximum aggregate purchase price had already been reached under any such Existing Agreement. 15
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. 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. 16
(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 condition (financial or otherwise) of Sellers and their subsidiaries, taken as a whole since March 31, 2007; (vi) The Sellers shall have delivered to the Agent and the Buyer (i) an unaudited consolidated balance sheet of NFI dated not earlier than March 31, 2007 prior to the date hereof showing Adjusted Tangible Net Worth of not less than $517,000,000 (which may or may not have been prepared in accordance with GAAP) and (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); (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 any Existing Agreement 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 17
(xiv) Any other documents reasonably requested by Buyer. 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 Purchased Assets that are subject to such Transaction in the name of Buyer or, if such Purchased Assets that 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 Purchased Assets that 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. 18
(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 four (4) Transactions per month (excluding any automatic Transaction pursuant to Section 3(b)) or one (1) Transaction per day. (xii) Any other documents reasonably requested by Buyer. 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 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: 19
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 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. 20 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, 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 21
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. 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. 22
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. 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. 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 23
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 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 24
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. iii) Monthly Servicing Reports. Each Seller shall deliver to Buyer monthly servicing reports which shall include information as to static pool analyses and Liquidity (as defined herein). 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; 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; 25
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 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, except with respect to transfers in the form of inter-company loans made in the ordinary course of business. 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 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 26
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. [Reserved]. r. 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. s. Facility Fees. Buyer shall be paid the following fees by wire transfer of immediately available funds without deduction, set-off or counterclaim pursuant to the terms and conditions set forth herein and in the Side Letter: i. Structuring Fee. Prior to the Effective Date, the Sellers shall have paid the Structuring Fee to the Buyer. ii. Repayment Fee. Upon termination of the Facility on or prior to the Termination Date in accordance with Section 27 herein, Sellers shall pay to Buyer an amount equal to (i) the Repurchase Price, plus (ii) the Repayment Fee, minus (iii) the sum of all Early Repayment Fees, if any. iii. Early Repayment Fee. For any asset repurchased by any Seller prior to such asset's related Repurchase Date, such Seller shall pay the applicable Early Repayment Fee to Buyer; provided, that the sum of all Early Repayment Fees shall not exceed the Repayment Fee and payments of any Early Repayment Fees shall reduce the Repayment Fee owed. iv. Default Fee. Upon the occurrence of either an Event of Default or a Default has occurred or is continuing the Sellers shall pay the Default Fee to Buyer. v. Change in Control Fee. Upon the occurrence of a Change in Control, Buyer shall have the right, at its option within ninety (90) days of such Change in Control, to 27
terminate the Facility and require the Sellers to pay Buyer an amount equal to (i) the Repurchase Price, plus (ii) the Change in Control Fee. t. Maintenance of Liquidity. At all times NFI, on a consolidated basis, shall maintain Liquidity in an amount of not less than $30,000,000. In the event that NFI's Liquidity falls below $45,000,000 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. u. Maintenance of Adjusted Tangible Net Worth. The Adjusted Tangible Net Worth of NFI at any time shall be greater than $517,000,000, provided however that such amount shall be reduced by the amount of the 2006 Dividend. v. 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, (ii) subject to the further provisions of this clause (v), NFI's 2006 Dividend to its shareholders and (iii) dividends paid on NFI's 8.90% Series C Cumulative Redeemable Preferred Stock and dividends paid on the Trust Preferred Securities; provided that after giving effect to the payment of the dividends described in this clause (iii), NFI will have at least $30,000,000 of Liquidity; provided that, notwithstanding the generality of the foregoing, after payment of the above, NFI shall be in compliance with all representations, warranties and covenants set forth in the Existing Agreements. No dividend other than the 2006 Dividend, to the extent permitted by this clause (v), shall be paid in cash without the prior consent of Buyer. 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 Securities, 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. 28
NFI may issue Dividend Securities, provided that, after giving effect to such issuance, NFI shall be in compliance with all representations, warranties and covenants set forth in the Existing Agreements. w. 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. 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 29
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. 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, 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": 30
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 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 NFI 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, 31
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 NFI and (ii) $1,000,000 with respect to all other parties 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 NFI 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; 32
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; 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 $517,000,000 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 as soon as practicable to Buyer of any margin call under any repurchase or financing facility; or 33
x. failure to allow Buyer to exercise its options as set forth in Section 6 hereof with respect to any margin calls under any repurchase or financing facility which exceeds $5,000,000 in the aggregate. 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. Reserved. 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 34
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, any of 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. Sellers shall also be required to pay to Buyer the Default Fee. 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. 35
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 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 36
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. b. The related Seller agrees to indemnify and hold harmless Agent and each of its respective Affiliates and Buyer and each of their 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. 37
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 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 38
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. 27. TERMINATION The Facility shall remain in effect until the earliest of the following (the "Termination Date"): (i) May 29, 2008, (ii) at Buyer's option upon the occurrence of an Event of Default, (iii) Buyer, at its option, terminates the Facility 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 Facility. 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 Facility shall survive the termination hereof. Any such termination as set forth above shall require Sellers to pay Buyer the Repurchase Price plus the Repayment Fee. In addition, for any such termination pursuant to clauses (ii) or (iii), Sellers shall also pay Buyer the Default Fee or the Change in Control Fee, respectively. 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, 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. 29. AMENDMENTS, ETC. 39
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. 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 THE COURTS OF THE STATE OF NEW YORK 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 40
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. 8140 Ward Parkway, Suite 300 Kansas City, Missouri 64114 Attention: Todd Phillips Telephone: (816) 237-7559 Facsimile: (816) 237-7515 E-mail: todd.phillips@novastar1.com if to NFI: NovaStar Financial, Inc. 8140 Ward Parkway, Suite 300 Kansas City, Missouri 64114 Attention: Todd Phillips Telephone: (816) 237-7559 Facsimile: (816) 237-7515 E-mail: todd.phillips@novastar1.com if to NFI Holding: NFI Holding Corporation 8140 Ward Parkway, Suite 300 Kansas City, Missouri 64114 Attention: Todd Phillips Telephone: (816) 237-7559 Facsimile: (816) 237-7515 41
E-mail: todd.phillips@novastar1.com if to Wachovia Investment Holdings, LLC: Wachovia Investment Holdings, LLC One Wachovia Center 301 South College Street Charlotte, North Carolina 28288 Attention: RMC Asset-Backed Lending Telephone: (704) 715-6133 Facsimile: (704) 383-8121 With a copy to: Wachovia Capital Markets, LLC One Wachovia Center 301 South College Street Charlotte, NC 28288 Attention: RMC Asset-Backed Lending Telephone: (704) 715-6133 Facsimile: (704) 383-8121 or, for Transaction Notices and related documents: Attention: Chad Cote Telephone: 704-715-1150 Facsimile: 704-715-1823 E-mail: chad.cote@wachovia.com as such address or number may be changed by like notice. 42
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. 37. JOINT AND SEVERAL LIABILITY 43
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 Existing Agreements or purchased assets pursuant to any repurchase agreement or similar financing agreement among Buyer, Sellers and Guarantors or any affiliates of Sellers or Guarantors shall be cross collateralized with the Purchased Assets subject to any purchase transaction pursuant to any of the existing 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/ Todd M. Phillips ------------------------------------------- Name: Todd M. Phillips ----------------------------------------- Title: Vice President, Treasurer & Controller ---------------------------------------- NOVASTAR CERTIFICATES FINANCING LLC, as Seller By: /s/ Todd M. Phillips ------------------------------------------- Name: Todd M. Phillips ----------------------------------------- Title: Vice President, Treasurer & Controller ---------------------------------------- NOVASTAR CERTIFICATES FINANCING CORPORATION, as Seller By: /s/ Todd M. Phillips ------------------------------------------- Name: Todd M. Phillips ----------------------------------------- Title: Vice President, Treasurer & Controller ----------------------------------------
WACHOVIA INVESTMENT HOLDINGS, LLC, as Buyer By: /s/ Andrew W. Riebe ------------------------------------------- Name: Andrew W. Riebe ----------------------------------------- Title: Director ---------------------------------------- WACHOVIA CAPITAL MARKETS, LLC, as Agent By: /s/ Scott Schuman ------------------------------------------- Name: Scott Schuman ----------------------------------------- Title: Vice President ----------------------------------------
Acknowledged and Agreed: NFI HOLDING CORPORATION, as Guarantor By: /s/ Todd M. Phillips ------------------------------------------ Name: Todd M. Phillips ---------------------------------------- Title: Vice President, Treasurer & Controller --------------------------------------- NOVASTAR FINANCIAL, INC., as Guarantor By: /s/ Todd M. Phillips ------------------------------------------ Name: Todd M. Phillips ---------------------------------------- Title: Vice President, Treasurer & Controller ---------------------------------------