Exhibit 10.1
EXECUTION COPY
March 11, 2008
NovaStar Mortgage, Inc.
NovaStar Certificates Financing LLC
NovaStar Certificates Financing Corporation
NFI Repurchase Corporation
NMI Repurchase Corporation
NMI Property Financing, Inc.
HomeView Lending, Inc.
NovaStar Financial, Inc.
NFI Holding Corporation
0000 Xxxx Xxxxxxx,
Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Re: Master Repurchase Agreements Waiver
Reference is made to those certain Master Repurchase Agreements listed on
Schedule I attached hereto (the "Agreements"). Capitalized terms used in this
letter agreement without definition have the meanings ascribed to them in the
Agreements.
Effective as of the date hereof and until April 11, 2008 (the "Waiver
Period") and subject to the limitations set forth herein, each Buyer hereby:
A. 1. Agrees not to enforce the requirements for NovaStar Financial,
Inc. ("NFI") to maintain a required Adjusted Tangible Net Worth
under the Agreements;
2. Waives any breach and/or any event of default that would
otherwise arise under the Agreements solely as a result of the
failure of NFI to have the required Adjusted Tangible Net Worth
specified in the Agreements; or
3. Agrees that in the Monthly Certificates delivered by NFI, NFI may
carve-out the certification solely relating to the Adjusted
Tangible Net Worth for the previous month and each Buyer hereby
waives any breach and/or event of default that would otherwise
arise under the Agreements as a result of such carve-out from the
Monthly Certifications.
B. 1. Agrees, during the Waiver Period, not to enforce the requirement
that NovaStar Financial, Inc. ("NFI") maintain Liquidity in an
amount not less than $30,000,000 as specified under the
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Agreements; provided that NFI agrees to maintain Liquidity
(taking into account required haircuts) in an amount not less
than $15,000,000;
2. Waives any breach and/or any event of default that would
otherwise arise under the Agreements solely as a result of the
failure of NFI to maintain Liquidity in an amount not less than
$30,000,000 during the Waiver Period; provided that NFI maintains
Liquidity in an amount not less than $15,000,000 during the
Waiver Period;
3. Agrees that in the Monthly Certificates delivered by NFI during
the Waiver Period, NFI may carve-out from the certification the
requirement to maintain Liquidity in an amount not less than
$30,000,000 for the previous month; provided that NFI shall
maintain Liquidity in an amount not less than $15,000,000 for
such month and shall certify that it has maintained such amount
in the Monthly Certification.
Notwithstanding anything to the contrary herein, all parties bound herein
acknowledge and agree that the Buyers, shall retain all rights and remedies in
order to enforce any Event of Default or other breach contemplated by the
Agreements.
Notwithstanding the occurrence and continuance of NFI's failure to maintain
the required Adjusted Tangible Net Worth or maintenance of Liquidity under the
Agreements described above, each Buyer is willing to waive certain of its
rights; provided that each Buyer reserves the right to unilaterally terminate
this letter agreement on or prior to April 11, 2008, without notice to any
party, based upon the occurrence of any Event of Default or breach that occurs
under the Agreements on or after the date hereof other than the Event of Default
expressly waived by the Buyers herein. Either Buyer's exercise of the right to
terminate this letter agreement shall be effective as to both Buyers.
Each Buyer hereby expressly reserves all other rights and remedies
available to it under the Agreements, and all rights, remedies, obligations, and
liabilities created or evinced thereby with respect to future breaches of, or
Defaults or Events of Default under, the Agreements. Except as stated herein,
the Buyers shall not be deemed to have waived or modified any of its rights
hereunder or under any other agreement, instrument or paper signed by NovaStar
Mortgage, Inc., NovaStar Certificates Financing LLC, NovaStar Certificates
Financing Corporation, NFI Repurchase Corporation, NMI Repurchase Corporation,
NMI Property Financing, Inc., HomeView Lending, Inc., NFI and NFI Holding
Corporation (collectively, the "NovaStar Parties") unless such waiver or
modification is in writing and signed by the Buyers. Except as expressly
provided herein, no failure or delay on the part of the Buyers in exercising any
right, power or remedy hereunder or any of the Agreements shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. This letter
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agreement shall be construed in accordance with the laws of the State of New
York, and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with the laws of the State of New York except to the
extent preempted by federal law. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
The Sellers shall promptly reimburse the Buyers for all out-of-pocket costs
and expenses of the Buyers in connection with the preparation, execution and
delivery of this letter agreement (including, without limitation, the fees and
expenses of counsel for the Buyers).
This letter agreement may be executed in any number of counterparts, each
of which (including any copy hereof delivered by facsimile) shall constitute one
and the same original instrument, and either party hereto may execute this
letter agreement by signing any such counterpart.
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Very truly yours,
Wachovia Bank, N.A., as Buyer
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
Wachovia Investment Holdings, LLC, as Buyer
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Acknowledged and Agreed:
NovaStar Mortgage, Inc., as Seller and Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
NovaStar Certificates Financing LLC, as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
NovaStar Certificates Financing Corporation, as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
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NFI Repurchase Corporation, as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
NMI Repurchase Corporation, as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
NMI Property Financing, Inc., as Seller
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
HomeView Lending, Inc., as Seller and Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
NovaStar Financial, Inc., as Seller and Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
NFI Holding Corporation, as Seller and Guarantor
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: SVP, Chief Financial Officer and Secretary
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SCHEDULE I
1. Master Repurchase Agreement (2007 Whole Loan) dated as of May 9, 2007 (the
"Whole Loan Agreement"), among Wachovia Bank, National Association, NFI
Repurchase Corporation, NMI Repurchase Corporation, NMI Property Financing,
Inc., HomeView Lending, Inc, NovaStar Financial Inc., NFI Holding Corporation
and NovaStar Mortgage Inc.
2. Master Repurchase Agreement (2007 Non-investment Grade) dated as of May 31,
2007 (the "Non-Investment Grade Securities Agreement"), among Wachovia
Investment Holdings, LLC, Wachovia Capital Markets LLC, NovaStar Mortgage, Inc.,
NovaStar Certificates Financing LLC, and NovaStar Certificates Financing Corp.
3. Master Repurchase Agreement (2007 Investment Grade) dated as of May 31, 2007
(the "Investment Grade Securities Agreement"), among Wachovia Bank, National
Association, Wachovia Capital Markets LLC, NovaStar Mortgage, Inc., NovaStar
Certificates Financing LLC, and NovaStar Certificates Financing Corp.
4. Master Repurchase Agreement (New York) dated as of July 6, 2007 (the "NY
Agreement") between Wachovia Bank, National Association and NovaStar Mortgage,
Inc.
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