Exhibit 10.13


 


 


NOTE PURCHASE AGREEMENT


 


THIS  NOTE PURCHASE AGREEMENT, dated as of March 29, 2007 (as
amended, modified, restated, replaced, waived, substituted, supplemented or
extended from time to time, the “Agreement”), is entered into between NRF—REINDEER LTD., a Cayman Islands exempted limited
liability company (together with its successors and permitted assigns, the “Seller”)
and WACHOVIA BANK, N.A. (LONDON BRANCH)
(together with its successors and assigns, the “Purchaser”).  Capitalized terms used herein but not defined
herein shall have the respective meanings given to such terms in Exhibit A
attached hereto.


 


RECITALS


 


Subject
to the terms of this Agreement, the Seller intends to sell and the Purchaser
intends to purchase (such purchase, a “Transaction”) all of the Seller’s
right, title and interest in and to (but none of its obligations under or with
respect to) the note identified on Exhibit B attached hereto (the “Note”)
and the related Purchased Items, with the simultaneous agreement of the Seller
to repurchase the Note and the related Purchased Items in accordance with the
terms of this Agreement.


 


Now,
therefore, based upon the foregoing, the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:


 


Section 1.              Agreement to Purchase.


 


Subject
to the terms and conditions contained in this Agreement, the Seller agrees to
sell, and the Purchaser agrees to purchase, the Note and the related Purchased
Items.  The consideration for the
purchase of the Note and the related Purchased Items shall be an amount equal
to the Purchase Price for the Note; provided, however, in no
event shall the aggregate Purchase Price for the Note purchased hereunder
exceed €75,000,000.  The purchase and
sale of the Note and the related Purchased Items shall take place on March 29,
2007 or such later date to which the parties hereto may agree separately in
writing (the “Closing Date”). 
Subject to the terms and conditions contained in this Agreement, the
Purchase Price shall be paid to the Seller or its designee by wire transfer in
immediately available funds in Euros on the Closing Date to the Seller’s
Account.


 


Section 2.              Conveyance of Note.


 


(a)                                  Effective as of
the Closing Date, subject only to the Seller’s receipt of the Purchase Price
and to the terms of this Agreement, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Purchaser all of the right, title
and interest of the Seller (but none of its obligations, which obligations
shall remain with the Seller) in and to the Note, together with all of the
Seller’s right, title and interest in and to (but none of its obligations,
which obligations shall remain with the Seller) the other Purchased Items
related thereto.  Without limiting the
effect of any other provision contained in this Agreement, the Seller’s
obligations under this Agreement shall be full recourse against the Seller.


 

















 


(b)                                 No later than
the Closing Date, the Seller shall deliver to the Purchaser or its designee the
agreements, documents and instruments specified below (including all
amendments, modifications and waivers thereto) with respect to the Note and the
related Purchased Items (the “Asset File”):


 


(i)            the original executed Note accompanied by an original
executed allonge pursuant to which the Seller has endorsed the Note, without
recourse, in blank;


 


(ii)           a certificate from the applicable record keeper certifying
that, as of the Closing Date, the Seller is the registered holder of the Note
and that the applicable record keeper has been directed to deposit all Income
with respect to the Note to the Collection Account;


 


(iii)          the original Participation Pledge, endorsed in blank;


 


(iv)          a copy of the Participation Certificate, together with all
intervening assignments thereof;


 


(v)           a copy of the related Participation Agreement, together
with any intervening assignments;


 


(vi)          copies of all documents executed in connection with or
relating to the Loan or the Participation Agreement, including, without
limitation, the Intercreditor Agreement, the Mezzanine Finance Documents, the
Senior Finance Documents (provided that the Senior Finance Documents may be
delivered within ten (10) Business Days after the Closing Date) and
any other applicable servicing or pooling and servicing agreements to the
extent in the possession of, or reasonably available to, the Seller, in each
case, together with all intervening assignments thereof;


 


(vii)         an original or, if available, a copy, of all of the other
documents related to the Note and/or the Purchased Items and not specifically
identified above, together with any and all intervening assignments thereof;


 


(viii)        an original Assignment executed by the Seller in blank.


 


(c)                                  If the Note has
been approved by the Purchaser in its discretion for purchase on a wet—funded
basis (a “Wet—Funded Note”), the Seller shall deliver to the Purchaser
or its designee the items specified below:


 


(i)            no later than the Closing Date, facsimile copies of each
of the items listed in Subsection 2(b) which are required to
be included in the Asset File with respect to such Wet—Funded Note;


 


(ii)           no later than the Closing Date, an original bailee
agreement in the form annexed hereto as Exhibit C (a “Bailee
Agreement”), properly completed and executed by the Seller and a title
company, escrow company or attorney in accordance with local law and practice
in the appropriate jurisdiction of such Wet—Funded Note and acceptable to the
Purchaser in its reasonable discretion (a “Settlement Agent”); and


 


(iii)          no later than five (5) Business Days after the
Closing Date, the Asset File with respect to such Wet—Funded Note.


 


The
Purchaser shall not purchase the Wet—Funded Note until it has received items 2(c)(i) and
2(c)(ii) above.


 


2

















 


(d)                                 [Reserved].


 


(e)                                  The Seller (or
an Affiliate of the Seller on its behalf) shall service the Note and the
related Purchased Items, from and after the Closing Date to the related
Repurchase Date, for the benefit of the Purchaser as the owner of the Note and
the related Purchased Items.  In
connection with such servicing, the Seller (or an Affiliate of the Seller on
its behalf) as servicer shall remit or cause to be remitted to the Purchaser
any and all Income on the Note and the related Purchased Items to the
Collection Account.  The Seller shall
also give all appropriate notices under the Note and the other Asset Documents
of Purchaser’s interests in the Note and the related Purchased Items.  In servicing the Note and the related
Purchased Items, the Seller (or an Affiliate of Seller on its behalf) as
servicer shall take all action, or cause to be taken all action, as may be
necessary to enforce, realize on and collect the Note and the related Purchased
Items, including but not limited to all related Income, all in accordance with
Applicable Law, with reasonable care and diligence, and in accordance with the
Servicing Standard; provided, however, that (i) in no event
shall the Seller, or any Affiliate of the Seller on its behalf (including,
without limitation, the Pledgor and the Guarantor), and the Seller shall not
permit NRFC Luxembourg to, take any material servicing action in respect of the
Note or the related Purchased Items or exercise any rights of the holder of the
Note or the related Purchased Items without the prior written approval of the
Purchaser, and (ii) the Seller, or any Affiliate of the Seller on its
behalf, shall consult regularly with the Purchaser with respect to any other
actions to be taken or not taken by a holder of the Note and the related
Purchased Items and in connection with such servicing and administration of the
Note and the related Purchased Items. 
Notwithstanding that the Seller may contract with an Affiliate to
service the Note and the related Purchased Items on its behalf, the Seller
shall continue to remain liable to the Purchaser as servicer under this
Agreement.


 


(f)                                    Notwithstanding
any rights of the Seller under the Bond, the Purchased Items or any other
agreement with NRFC Luxembourg, the Purchaser, either directly or by and
through the Seller or its Affiliate on its behalf, shall have the right to
exercise (i) prior to an Event of Default, subject to any additional
rights of the Purchaser under the Participation Pledge, any material
determinations, material consent rights and material approvals in connection
with the Note and the related Purchased Items in accordance with the terms of
the Asset Documents, and (ii) after an Event of Default, all
determinations, consent rights and approvals in connection with the Note and
the related Purchased Items in accordance with the terms of the Asset Documents
until such time as the Note and the related Purchased Items are repurchased by
the Seller.


 


(g)                                 All other
documents and records relating to the Note and the related Purchased Items and
the servicing thereof, which are in the Seller’s possession and are not
required to be delivered as part of the Asset File (the “Additional Asset
Documents”), shall be held by the Seller and delivered to the Purchaser
within five (5) Business Days following the Closing Date.  After the Closing Date, the Seller shall
deliver any Additional Asset Documents created, acquired or received within
five (5) Business Days of the creation, acquisition or receipt
thereof.  Additional Asset Documents
shall be deemed included in the Asset File upon the Purchaser’s receipt
thereof.


 


Section 3.              Closing.


 


The closing (the “Closing”) shall be subject
to each of the following conditions:


 


(a)                                  All of the
representations and warranties of the Seller, the Pledgor and the Guarantor set
forth in or made pursuant to the Repurchase Documents shall be true and correct
in all material respects as of the Closing Date;


 


3

















 


(b)                                 The Seller
shall have delivered and released to the Purchaser or its designee all
documents and instruments required to be delivered by the Seller to the
Purchaser or its designee as set forth in Section 2 of this
Agreement;


 


(c)                                  The Purchaser
shall be in receipt of good standing certificates, secretary certificates (or
the equivalent) and copies of the Governing Documents and applicable
resolutions of the Seller, the Guarantor, the Pledgor and NRFC Luxembourg
evidencing, as applicable, the corporate or other authority for the Seller, the
Guarantor, the Pledgor and NRFC Luxembourg with respect to the execution,
delivery and performance of the Repurchase Documents and, as applicable, the
agreements in the Asset File and each of the other documents to be delivered by
the Seller, the Guarantor, the Pledgor and NRFC Luxembourg from time to time in
connection herewith or therewith;


 


(d)                                 The Purchaser
shall be in receipt of this Agreement, each Pledge and Security Agreement, the
Guaranty Agreement and the other Repurchase Documents, each duly executed by,
and delivered to, the parties thereto;


 


(e)                                  The Purchaser
shall be in receipt of current UCC or Lien searches with respect to the Seller
and the Pledgor and in the applicable jurisdiction and, if such searches reveal
the existence of any Liens, UCC termination statements or other Lien
terminations shall be filed in the appropriate jurisdiction or such Liens are
otherwise terminated on or before the Closing Date;


 


(f)                                    UCC financing
statements or other notices of Liens shall have been filed against the Seller
with respect to the Note and the related Purchased Items and against the
Pledgor with respect to the Pledged Collateral in the appropriate filing
offices;


 


(g)                                 The Purchaser
shall have completed to its satisfaction such due diligence with respect to the
Note and the related Purchased Items as it may require in its discretion;


 


(h)                                 No Applicable
Law shall prohibit or render it unlawful, and no order, judgment or decree of
Governmental Authority shall prohibit, enjoin or render it unlawful to enter
into the Transaction by the Purchaser in accordance with the provisions of this
Agreement or any other transaction contemplated herein;


 


(i)                                     The Seller
shall have delivered, or caused to have been delivered, to the Purchaser Opinions
of Counsel with respect to the Seller, the Guarantor, the Pledgor and NRFC
Luxembourg addressing corporate, authorization, execution, enforceability,
perfection, non—contravention, no conflicts and such other matters as the
Purchaser may require in its reasonable discretion;


 


(j)                                     With respect to
the Note and the related Purchased Items, the Purchaser shall have received
from the Seller a Release Letter substantially in the form of Exhibit F
attached hereto (or such other form acceptable to the Purchaser) (“Release
Letter”), releasing the current holder’s Lien with respect to the related
Note and the related Purchased Items to be sold to the Purchaser hereunder;


 


(k)                                  none of the
following shall have occurred and/or be continuing:


 


(A)          an event or events shall have occurred
in the good faith determination of the Purchaser resulting in the effective
absence of a “repo market” or related “lending market” for purchasing (subject
to repurchase) or financing debt obligations secured by commercial mortgage or
mezzanine loans or securities, or an event or events shall have occurred
resulting in the Purchaser not being able to finance the Note through the “repo



 


4

















 


market”
or “lending market” with traditional counterparties at rates that would have
been reasonable prior to the occurrence of such event or events;


 


(B)           an event or events shall have
occurred resulting in the effective absence of a “securities market” for
securities backed by the Note or commercial or multifamily real property or
other collateral, or an event or events shall have occurred resulting in the
Purchaser not being able to sell securities backed directly or indirectly by
the Note or commercial or multifamily real property or other collateral at prices
that would have been reasonable prior to such event or events;


 


(C)           there shall have occurred a material
adverse change in the financial condition of the Purchaser that affects (or can
reasonably be expected to affect) materially and adversely the ability of the
Purchaser to fund its obligations under this Agreement; or


 


(D)          a
Material Adverse Effect.


 


(l)                                     All other terms
and conditions of and all duties, covenants and obligations under this
Agreement and the other Repurchase Documents required to be satisfied or
complied with on or before the Closing Date shall have been satisfied or
complied with by the Seller, the Guarantor or the Pledgor, as applicable, in
all material respects and the Seller, the Guarantor and the Pledgor shall have
the ability to comply with or satisfy all terms and conditions and perform all
duties, covenants and obligations required to be complied with or performed
after the Closing Date;


 


(m)                              The Seller
shall have executed and delivered to the addressee thereof the notices attached
hereto as Exhibits H and I and Schedules 1 and 2 to
the Participation Pledge (collectively, the “Pledge Notices”) and the Seller
shall provide evidence of same to the Purchaser;


 


(n)                                 The Seller
shall have delivered to the Purchaser evidence of the registration of the Note
in NRFC Luxembourg’s note register as provided in Subsection 4(j) of
this Agreement.


 


(o)                                 The Seller
shall have paid all fees, costs and expenses payable by it to the Purchaser
pursuant to this Agreement as of the Closing Date, including the reasonable
fees and costs of Purchaser’s legal counsel; and


 


(p)                                 The Seller
shall have delivered or caused to have been delivered to the Purchaser such
other certificates, opinions, documents, instruments and agreements as the
Purchaser may reasonably request.


 


Section 4.              Repurchase Obligation; Price
Differential; Margin Deficits.


 


(a)                                  The Seller
shall have the right at any time upon at least two (2) Business Days
prior written notice to the Purchaser to repurchase the Note and the related
Purchased Items from the Purchaser for an amount equal to the Repurchase Price
for such Note plus all other Aggregate Unpaids. 
The Seller shall pay the Repurchase Price and all other Aggregate
Unpaids outstanding to the Purchaser in immediately available funds to the
Collection Account on the Repurchase Date.


 


(b)                                 Following the
occurrence and during the continuance of (1) any default under any of the
Repurchase Documents or any of the following events:  (i) any Insolvency Proceeding with
respect to the Seller, the Guarantor, the Pledgor or NRFC Luxembourg, (ii) any
breach by the Seller, the Guarantor, the Pledgor or NRFC Luxembourg of any
representation or warranty set forth in any of the Repurchase 


 


5

















 


Documents,
the Asset Documents or any other document, agreement or certificate delivered
to the Purchaser (other than with respect to a representation or warranty
described in clause (A), (B) or (C) of the proviso to the definition of Asset
Value, which representations or warranties, if untrue, shall give rise to a
right of the Purchaser to mark the related Note to market under Subsection 4(i) of
this Agreement), (iii) any failure to deliver the Asset File within the
time frame required under Subsection 2(b) or Subsection 2(c),
(iv) any failure to comply with Subsections 4(c) or 4(i),
(v) any default in the performance of any duty, agreement, obligation or
covenant of the Seller, the Guarantor, the Pledgor or NRFC Luxembourg under any
of the Repurchase Documents, the Asset Documents or any other document,
agreement or certificate delivered to the Purchaser, including, without
limitation, the obligation of the Seller to pay Price Differential, Purchase
Price and all other amounts owed hereunder or under the other Repurchase Documents
on or before the date such amounts are due under the terms of the Repurchase
Documents and/or any event resulting in a right or obligation of redemption of
the Note under condition 4 thereof and not otherwise specified in this Subsection
4(b), (vi) the occurrence of a Material Adverse Effect, (vii) other
than as contemplated under the Repurchase Documents, the Seller, the Guarantor,
the Pledgor or NRFC Luxembourg shall grant, or suffer to exist, any Lien on the
Note, the Purchased Item or Pledged Collateral (except Permitted Liens), (viii) the
Note or the Purchased Items shall not have been sold to the Purchaser, or the
Liens contemplated under the Repurchase Documents shall cease or fail to be
first priority perfected Liens on the Note, the Purchased Items or the Pledged
Collateral in favor of the Purchaser (other than as a result of the Purchaser
failing to file a UCC financing statement or continuation thereof against the
Seller or Pledgor in the applicable jurisdiction with respect to the Purchased
Items or Pledged Collateral, as applicable), (ix) the Seller, the
Guarantor, the Pledgor, NRFC Luxembourg or any other Person shall, directly or
indirectly, contest in any manner the effectiveness, validity, binding nature
or enforceability of any Repurchase Document, any Lien or security interest
thereunder or the Asset Documents or (x) the Seller, the Guarantor, the
Pledgor or NRFC Luxembourg shall admit its inability to, or its intentions not
to, perform any of its obligations, covenants or agreements under any
Repurchase Document or the Asset Documents, and/or (2) an “Event of
Default” under (A) the Master Repurchase Agreement, dated as of July 13,
2005, by and among NRFC WA Holdings, LLC, Wachovia, NorthStar Realty Finance
Corp. and others, together with all other documents and agreements executed or
delivered in connection therewith, as such agreements have been and are
amended, modified, restated, waived, replaced, substituted, supplemented or
extended from time to time (the “Wachovia Repurchase Facility”) or (B) the
Master Repurchase Agreement (VFCC) to be entered into by and among Subsidiaries
of the Guarantor, Variable Funding Capital Company (“VFCC”) and Wachovia
Capital Markets, LLC, together with all other documents and agreements executed
or delivered in connection therewith, as such agreements are amended, modified,
restated, waived, replaced, substituted, supplemented or extended from time to
time (the “VFCC Repurchase Facility”) (any default or event of default
under clauses (1) through (2) above, an “Event
of Default”), the Seller shall be required immediately upon the occurrence
thereof to repurchase the Note and the related Purchased Items by paying to the
Purchaser the aggregate Repurchase Price, all other Aggregate Unpaids and all
other Debt; provided, however, the Price Differential shall be
calculated using a Rate equal to the Default Rate until all amounts due to the
Purchaser are paid in full.  The Seller
shall pay all such amounts referred to in the previous sentence in immediately available
funds to the Collection Account within two (2) Business Days of the
occurrence of an Event of Default.


 


(c)                                  No later than
the Fixed Repurchase Date, the Seller shall repurchase the Note and the related
Purchased Items for an amount equal to the aggregate Repurchase Price plus all
other Aggregate Unpaids.  The Seller
shall pay such amounts referred to in the preceding sentence in immediately
available funds to the Collection Account on or before the date required by
this Subsection 4(c).


 


(d)                                 In connection
with any repurchase pursuant to this Section 4 and the payment of
all amounts owed under this Agreement and the other Repurchase Documents to the
Purchaser, the Purchaser shall promptly thereafter deliver to the Seller, at
the Seller’s expense, the related Asset File, Additional 


 


6

















 


Asset
Documents, all other documents and instruments that were delivered by the
Seller to the Purchaser hereunder, all Income on deposit in the Collection
Account (less any amounts owed to the Purchaser) and, at the Seller’s expense,
such instruments of reconveyance (including, if the endorsement to the Note
initially delivered to the Purchaser hereunder in blank has been completed, a
further endorsement of such Note to the Seller or in blank, and, if the
Assignment initially delivered to the Purchaser hereunder in blank has been
completed, further assignment of such Assignment to the Seller or in blank) as
the Seller may reasonably request; provided, however, such
reconveyance by the Purchaser shall be without recourse to, or representation
or warranty from, the Purchaser.


 


(e)                                  Notwithstanding
that the Seller and the Purchaser intend that the Transaction hereunder be a
sale to Purchaser of the Note and other Purchased Items and for so long as the
Note has not been repurchased from the Purchaser by the Seller pursuant to this
Section 4, on each Payment Date the Seller shall pay to the
Purchaser an amount equal to the accrued Price Differential of the Transaction
through but not including each Payment Date (each such payment, a “Periodic
Advance Repurchase Payment”) less any portion thereof previously paid, if
any.  The Purchaser shall deliver to the
Seller, via email or facsimile, written notice of the required Periodic Advance
Repurchase Payment, and a detailed calculation thereof, on or prior to the
first (1st) Business Day preceding each such Payment Date.  If the Seller fails to make all or part of
the required Periodic Advance Repurchase Payment by 11:00 a.m., Charlotte,
North Carolina time, within two (2) Business Days of each such
Payment Date, the Seller shall be obligated to pay to Purchaser (in addition
to, and together with, the Periodic Advance Repurchase Payment) interest on the
unpaid amount of the Periodic Advance Repurchase Payment at a rate per annum
equal to the Default Rate until the overdue Periodic Advance Repurchase Payment
is received in full by the Purchaser.


 


(f)                                    The Purchaser
shall be entitled to receive an amount equal to all Income paid or distributed on
or in respect of the Note and the other Purchased Items, which amounts the
Seller shall deposit or cause to be deposited into the Collection Account.  The Seller hereby agrees to instruct each
applicable trustee, servicer and other Persons to transfer all Income with
respect to the Note and the other Purchased Items directly to the Collection
Account within one (1) Business Day of receipt.  On each Payment Date, any amounts received by
the Purchaser and deposited to the Collection Account since the immediately
preceding Payment Date shall be applied as follows:  first, to
the payment of all fees, costs, expenses and advances then due to the Purchaser
pursuant to the Repurchase Documents, other than the items covered in the
clauses below; second, to the payment of any
interest owed to the Purchaser at the Default Rate, third,
to the payment of accrued and unpaid Price Differential for the Transaction; fourth, without limiting the Seller’s
obligation under Subsection 4(i) to cure Margin Deficits in a
timely manner, to the Purchaser for the payment of any Margin Deficit
outstanding; fifth, to the extent any
Income includes payments or prepayments of principal, such payments shall be
applied to reduce the Repurchase Price outstanding for the Transaction; sixth, to the payment of Breakage
Costs, Costs, Increased Costs, Taxes, Additional Amounts and other amounts, if
any, then due and owing to the Purchaser pursuant to this Agreement;  and seventh,
the remainder to the Seller, for such purposes as the Seller shall determine in its discretion, subject to the Seller’s
covenants set forth herein and other requirements of the Repurchase Documents; provided,
however, if an Event of Default has occurred and is continuing, amounts
collected pursuant to this Subsection 4(f) of this Agreement
shall not be transferred to the Seller but, instead, shall be retained by the
Purchaser and applied in reduction of the Debt until paid in full.


 


(g)                                 Unless
otherwise expressly provided herein, all amounts to be paid or deposited by the
Seller hereunder shall be paid or deposited in accordance with the terms of
this Agreement no later than 3:00 p.m. on the day when due in Euros
(except any payments in connection with the Wachovia Repurchase Facility or the
VFCC Repurchase Facility, in which case the same shall be lawful money of the
United States), in immediately available funds and without deduction, set—off
or counterclaim to the Purchaser’s Account or the Collection Account, as
applicable, and if not received before such time shall 


 


7

















 


be
deemed to be received on the next Business Day. 
The Seller shall, to the extent permitted by Applicable Law, pay to the
Purchaser interest on any amounts not paid within two (2) Business
Days of the date when due hereunder or under the Repurchase Documents at the
Default Rate, payable on demand; provided, however, that such
interest rate shall not at any time exceed the maximum rate permitted by
Applicable Law.  Such interest shall be
for the account of, and distributed to, the Purchaser.  All computations of interest, Price
Differential and fees hereunder shall be made on the basis of a year consisting
of 360 days for the actual number of days (including the first but excluding
the last day) elapsed.  The Seller
acknowledges that it has no rights in or to or any rights of withdrawal from
the Purchaser’s Account or from the Collection Account; provided, however,
the Seller has a right to receive payments from the Collection Account as and
to the extent provided in Subsection 4(f).


 


(h)                                 Whenever any
payment hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of the
payment of the Price Differential or any fee payable hereunder.


 


(i)                                     If at any time
the Purchaser determines (based on such factors as the Purchaser determines to
rely on its discretion, including but not limited to a credit analysis of the Mortgaged
Properties and the current market conditions for the Note) that the Asset Value
of the Note is less than the aggregate Purchase Price outstanding (a “Margin
Deficit”), then the Purchaser may by notice (a “Margin Deficit Notice”)
to the Seller require the Seller to transfer to the Purchaser cash in such
amount that the aggregate Asset Value of the Note will thereupon equal or
exceed the aggregate Purchase Price outstanding.  Notwithstanding anything to the contrary in
this Agreement, the Seller shall transfer such cash to the Purchaser’s Account
no later than forty-eight (48) hours after the Margin Deficit Notice shall be
deemed to have been received under Section 11.  All cash transferred to the Purchaser
pursuant to this Subsection 4(i) shall be deposited in the
Purchaser’s Account and shall be attributed to the Transaction as the Purchaser
shall determine in its discretion.  The
Purchaser’s election, in its discretion, not to deliver a Margin Deficit Notice
at any time there is a Margin Deficit shall not in any way limit or impair its
right to deliver a Margin Deficit Notice at any time a Margin Deficit exists
(including the same or a different Margin Deficit).


 


(j)                                     The pledge of
the Note shall, by virtue of the execution of this Agreement by NRFC Luxembourg,
be acknowledged and accepted by NRFC Luxembourg and shall forthwith be
registered in NRFC Luxembourg’s note register in accordance with article 5(c) of
the Luxembourg law on financial collateral arrangements dated August 5,
2005.  In this respect, the Seller,
immediately upon the execution of this Agreement by the Seller and the
Purchaser (i) instructs and appoints the managers of NRFC Luxembourg
acting individually or as proxy to register the pledge of the Note in the
noteholders’ register of NRFC Luxembourg and (ii) undertakes to deliver to
the Purchaser a copy of the relevant pages of NRFC Luxembourg’s note
register showing that the pledge of the Note has been duly recorded.  The inscription into the noteholders’
register of NRFC Luxembourg shall be in substantially the following form:  “Pursuant to and in accordance with a Note
Purchase Agreement, dated as of March 29, 2007, between NRF—Reindeer Ltd.,
a Cayman Islands exempted limited liability company, and Wachovia Bank, N.A.
(London Branch) (as amended or modified from time to time, the “Note Purchase
Agreement”), NRF—Reindeer Ltd. has granted a pledge over a single note
representing 100% of the notes issued by NRFC Luxembourg Holdings I S.à r.l., a
Société à responsabilité limitée, as well as all notes which it may acquire in
the future, in favor of Wachovia Bank, N.A. (London Branch), as pledgee, in
order to secure the payment of the Debt (defined in the Note Purchase
Agreement).”


 


8

















 


Section 5.              Representations and Warranties
of Seller.


 


The
Seller hereby represents and warrants to the Purchaser, as of the date hereof
and at all times while this Agreement and the Transaction are in full force and
effect, that:


 


(a)                                  Organization
and Good Standing.  The Seller
has been duly organized, and is validly existing, as a Cayman Islands exempted
limited liability company good standing under the laws of the Cayman Islands,
with all requisite power and authority to own or lease its Properties and
conduct its business as such business is presently conducted, and had, at all
relevant times, and now has, all necessary power, authority and legal right to
acquire, own, sell and pledge the Note and other Purchased Items.


 


(b)                                 Due
Qualification.  The Seller
is duly qualified to do business and is in good standing as a Cayman Islands
exempted limited liability company, and has obtained all necessary licenses,
permits and approvals, in all jurisdictions in which the ownership or lease of
its Property or the conduct of its business requires such qualification,
licenses or approvals.


 


(c)                                  Power and
Authority; Due Authorization; Execution and Delivery.  The Seller (i) has all necessary power,
authority and legal right (A) to execute and deliver the Repurchase
Documents to which it is a party, (B) to carry out the terms of the
Repurchase Documents to which it is a party, and (C)  to acquire, sell,
assign and pledge the Note and other Purchased Items on the terms and
conditions provided herein but subject to the terms of such Asset Documents,
and (ii) has duly authorized by all necessary corporate action (A) the
execution, delivery and performance of the Repurchase Documents to which it is
a party, and (B) the acquisition, sale, assignment and pledge of the Note
and other Purchased Items on the terms and conditions herein provided.  The Repurchase Documents to which the Seller
is a party have been duly executed and delivered by the Seller.


 


(d)                                 Binding
Obligation.  Each of the
Repurchase Documents to which the Seller is a party constitutes a legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its respective terms, except as such enforceability may be
limited by Insolvency Laws and by general principles of equity (whether considered
in a suit at law or in equity).


 


(e)                                  Good Title.  The Seller represents and warrants that it is
the sole legal and beneficial owner of the Note and other Purchased Items and
that such Note and other Purchased Items are free and clear of all Liens,
participation interests and rights of others, except for Permitted Liens.


 


(f)                                    Tax Liens.  The Seller represents and warrants that there
are no delinquent federal, state, city, county or other Taxes relating to the
Seller, its Properties, the Note and the other Purchased Items or any
arrangement pursuant to which the Note and the other Purchased Items are issued
that might, in the reasonable judgment of the Purchaser, have a Material
Adverse Effect, and all such delinquent tax liabilities have been satisfied except
those that are being contested by the Seller in good faith and with respect to
which payment has been stayed by a court of competent jurisdiction.


 


(g)                                 No Proceedings.  There is no litigation, proceeding or
investigation pending or, to the best knowledge of the Seller, threatened
against the Seller, the Guarantor or the Pledgor, before any Governmental
Authority (i) asserting the invalidity of the Repurchase Documents, (ii) seeking
to prevent the consummation of any of the transactions contemplated by the
Repurchase Documents, or (iii) seeking any determination or ruling that
could reasonably be expected to have Material Adverse Effect.


 


(h)                                 No Violation or
Defaults.  The
execution and delivery and consummation of the transactions contemplated by the
Repurchase Documents and the fulfillment of the terms of the Repurchase
Documents will not (i) conflict with, result in any breach of any of the
terms and provisions 


 


9

















 


of,
or constitute (with or without notice or lapse of time or both) a default
under, the Seller’s Governing Documents or any material Indebtedness or
Contractual Obligation of the Seller, (ii) result in the creation or
imposition of any Lien (other than Permitted Liens) upon any of the Seller’s Properties
pursuant to the terms of any such Indebtedness or Contractual Obligation, other
than this Agreement, or (iii) violate any Applicable Law.


 


(i)                                     All Consents
Required.  All
approvals, authorizations, consents, orders or other actions of any Person or
of any Governmental Authority (if any) required for the due execution, delivery
and performance by the Seller of the Repurchase Documents to which it is a
party (including the sale and transfer of, and the grant of a security interest
in, the Note and other Purchased Items) have been obtained, effected, waived or
given and are in full force and effect.


 


(j)                                     No Event of
Default.  No Event of Default has
occurred and is continuing hereunder.


 


(k)                                  Seller’s
Insurance.  The Seller
has and maintains, with respect to its Properties and business, insurance which
meets the requirements of Subsection 6(l) of this Agreement.


 


(l)                                     Solvency.  The Seller was Solvent at all relevant times
prior to, and the Seller will be Solvent after, the sale of the Note and other
Purchased Items to the Purchaser.  The
Seller is not selling the Note and other Purchased Items to the Purchaser with
any intent to hinder, delay or defraud any of the creditors of the Seller.


 


(m)                               Investment
Company Act Eligibility.  The
Seller is not, and is not controlled by, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, or is exempt from
the provisions of such act.


 


(n)                                 Patriot Act.  The Seller represents and warrants that it is
in compliance, in all material respects, with (i) the Trading with the
Enemy Act, as amended, and each of the foreign asset control regulations of the
United States Treasury Department (31 C.F.R., Subtitle B,
Chapter V, as amended) and any other applicable enabling legislation or
executive order relating thereto, (ii) the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001), and (iii) any other anti-money
laundering laws and regulations.  The
Seller has established an adequate anti-money laundering compliance program as
required by the above-referenced laws and has conducted the requisite due
diligence in connection with the origination or acquisition of the Note and the
other Purchased Items for purposes of such laws and the acquisition of the Note
and the other Purchased Items by the Seller, its agents and/or Affiliates
complies with each of the above-references laws.  No part of the proceeds of the Transaction
will be used, directly or indirectly, for any payments to any governmental
official or employee, political party, official of a political party, candidate
for political office or anyone else acting in an official capacity in order to
obtain or retain any improper advantage, in violation of the United States
Foreign Corrupt Practices Act of 1977, as amended.


 


(o)                                 Office of
Foreign Assets Control.  The
Seller represents and warrants that it is not a Person (i) whose Property
or interest in Property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) who engages in any
dealings or transactions prohibited by Section 2 of such executive order,
or, to the best of the Seller’s knowledge, is otherwise associated with any
such Person in any manner violative of Section 2 of such executive order,
or (iii) on the current list of Specially Designated Nationals and Blocked
Persons or subject to the limitations or prohibitions under any other U.S.  Department of Treasury’s Office of Foreign
Assets Control regulation or executive order.


 


10














 


(p)                                 True and
Complete Disclosure.  The Seller
represents and warrants that the information, reports, financial statements,
exhibits and schedules furnished in writing by or on behalf of the Seller, the
Guarantor and the Pledgor to the Purchaser in connection with the negotiation,
preparation or delivery of this Agreement and the other Repurchase Documents or
included herein or therein or delivered pursuant hereto or thereto, when taken
as a whole, do not contain any untrue statement of material fact or omit to
state any material fact necessary to make the statements herein or therein, in
light of the circumstances under which they were made, not misleading.  All written information furnished after the
date hereof by or on behalf of the Seller, the Guarantor or the Pledgor to the
Purchaser in connection with this Agreement or the other Repurchase Documents
and the transactions contemplated hereby and thereby will be true, complete and
accurate in all material respects, or (in the case of projections) based on
reasonable estimates, on the date as of which such information is stated or
certified.  There is no fact known to the
Seller, the Guarantor or the Pledgor, after due inquiry, that would reasonably
be expected to have a Material Adverse Effect.


 


(q)                                 Exchange Act
Compliance; Regulations T, U and X.  The Transaction contemplated herein
(including, without limitation, the use of the proceeds from the sale of the
Note and the other Purchased Items) will not violate or result in a violation
of Section 7 of the Exchange Act, or any regulations issued pursuant
thereto, including, without limitation, Regulations T, U and X.  The Seller does not own or intend to carry or
purchase, and no proceeds from the Transaction will be used to carry or
purchase, any “margin stock” within the meaning of Regulation U or to
extend “purpose credit” within the meaning of Regulation U.


 


(r)                                    ERISA.  The Seller, the Guarantor, the Pledgor and
each ERISA Affiliate of the foregoing have made all required contributions to
each Benefit Plan subject to Section 412 of the Code, and no application
for a funding waiver or an extension of any amortization period pursuant to Section 412
of the Code has been made with respect to any Benefit Plan.  Neither the Seller, the Guarantor, the
Pledgor nor any ERISA Affiliate of the foregoing has incurred, or reasonably
expects to incur, any liability (and no event has occurred which, with the
giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a
Multiemployer Plan, nor has there been a complete or partial withdrawal by the
Seller, the Guarantor, the Pledgor or any ERISA Affiliate of the foregoing from
a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization.  The present value of all benefits vested
under all “employee pension benefit plans,” as such term is defined in Section 3(2) of
ERISA, maintained by the Seller, the Guarantor or the Pledgor, or in which
employees of the Seller, the Guarantor or the Pledgor are entitled to
participate, as from time to time in effect (herein called the “Pension
Plans”), does not exceed the value of the assets of the Pension Plan
allocable to such vested benefits (based on the value of such assets as of the
last annual valuation date).  No
prohibited transactions, accumulated funding deficiencies, withdrawals or
reportable events have occurred with respect to any Pension Plans that, in the
aggregate, could subject the Seller, the Guarantor or the Pledgor to any
material tax, penalty or other liability. 
No Lien in favor of the PBGC or a Pension Plan has arisen or is likely
to arise on account of any Pension Plan. 
No notice of intent to terminate a Pension Plan under Section 4041(b) of
ERISA has been filed, nor has any Pension Plan been terminated under Section 4041(c) of
ERISA, nor has the PBGC instituted proceedings to terminate or appoint a
trustee to administer a Pension Plan, and no event has occurred or condition
exists that might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension
Plan.


 


(s)                                  Tradenames.  The exact legal name of the Seller is set
forth on the signature pages to this Agreement.  The Seller does not have any trade names,
fictitious names, assumed names or “doing business as” names or other names
under which it has done or is doing business.


 


11

















 


(t)                                    Compliance with
Law, Etc..  The Seller
has complied in all respects with all Applicable Laws to which it may be
subject, and neither the Note nor the other Purchased Items contravene any
Applicable Laws (including, without limitation, laws, rules and
regulations relating to licensing, truth in lending, fair credit billing, fair
credit reporting, equal credit opportunity, fair debt collection practices and
privacy).  The Seller is in compliance
with its Governing Documents, including without limitation, special purpose
entity provisions contained therein.


 


(u)                                 Income.  The Seller acknowledges that all Income
received by it or any Person on its behalf with respect to the Note and the
other Purchased Items sold hereunder is and shall be held in trust for the
benefit of the Purchaser until deposited into the Collection Account as
required herein.


 


(v)                                 No Broker.  Neither the Seller nor any of its Affiliates
have dealt with any broker, investment banker, agent or other Person, except
for the Purchaser (or an Affiliate of the Purchaser), who may be entitled to
any commission or compensation in connection with the sale of the Note and the
other Purchased Items pursuant to this Agreement.


 


(w)                              Representations
and Warranties Regarding the Note and the Purchased Items.  The Seller makes the following
representations and warranties regarding the Note and the Purchased Items.


 


(i)            True and complete copies of all of the Asset Documents
have been delivered by the Seller to the Purchaser and the Asset Documents
comprise all of the agreements relating to, and documents affecting, governing,
evidencing and securing, the Note and the other Purchased Items as of the date
hereof.  The terms of the Note, the
Purchased Items and the Asset Documents have not been waived, altered or
modified in any material respect, except as specifically set forth in the Asset
Documents.


 


(ii)           The information with respect to the Note, the other
Purchased Items and the Loan set forth in this Agreement and the Asset
Documents is true and correct in all material respects.


 


(iii)          The Note and the other Purchased Items are not cross—collateralized
with any other Indebtedness, except as provided in the Asset Documents.


 


(iv)          There are no defaults under the Note, the other Purchased
Items or the Loan and, to the Seller’s knowledge, the Obligors under the Note,
the other Purchased Items and the Loan have no counterclaims, defenses or
offset rights under the Asset Documents.


 


(v)           The Seller has no actual notice of (i) the
commencement of a proceeding for the condemnation of all or any material
portion of the Mortgage Properties directly or indirectly securing the Note,
the other Purchased Items or the Loan or (ii) any material casualty to the
Mortgage Properties directly or indirectly securing the Note, the other
Purchased Items or the Loan.


 


(vi)          The proceeds of the Note and the other Purchased Items have
been fully disbursed and there is no requirement for future advances
thereunder.


 


(vii)         Each of the Asset Documents has been duly and validly
authorized, executed and delivered and constitutes the legal, valid and binding
obligation of the parties thereto, enforceable in accordance with its terms,
except as such enforcement may be limited by Insolvency Laws and by general
principals of equity (whether considered in a proceeding in equity or at law).


 


12

















 


(viii)        All escrow deposits relating to the Note, the other Purchased
Items or the Loan that are required to be deposited with the servicer, trustee
or other designated Person under the Asset Documents by the Obligors thereunder
prior to the date hereof have been so deposited.  The Seller is not holding any such escrow or
reserve accounts (or subaccounts).


 


(ix)           To the Seller’s knowledge, the Obligors under the Loan
presently have in effect all of the insurance policies required under the Asset
Documents.


 


(x)            To the Seller’s knowledge, there are no pending actions,
suits or proceedings by or before any court or governmental authority against
or affecting the Note, the Purchased Items, the Loan or any Mortgaged Property,
other than as disclosed in the Asset Documents. 
Neither the Note, the Purchased Items, the Loan nor, to the Seller’s
knowledge, any Obligors under the Note, the other Purchased Items or the Loan,
are currently the subject of or subject to any Insolvency Proceeding.


 


(xi)           (A) To the Seller’s knowledge, there are no
violations of any Applicable Law pertaining to the condition, use or operation
of the Mortgaged Properties that have been asserted by any Governmental
Authority that are likely to have a material adverse effect on the value of the
such properties, and (B) no Governmental Authority has asserted that any
of the Obligors under the Note, the other Purchased Items or the Loan has
failed to obtain any permit, license or other governmental approval necessary
for the use and operation of the Mortgaged Properties the failure of which
would be likely to have a material adverse effect on the value of such
properties.


 


(xii)          To the Seller’s knowledge, there are no circumstances or
conditions with respect to the Note, the other Purchased Items, the Mortgaged
Properties, the Loan, the Asset Documents or any Obligor that can reasonably be
expected to cause the Note, the other Purchased Items or the Loan to become
delinquent or adversely affect the value or marketability of the Note or the other
Purchased Items.


 


(xiii)         The Note and the other Purchased Items were underwritten by
the Seller strictly in accordance with Seller’s or the Affiliate’s underwriting
standards and guidelines.


 


(xiv)          To the Seller’s knowledge, the
representations and warranties set forth in the Asset Documents are true and
correct in all material respects.


 


(xv)           The Seller and NRFC Luxembourg are
each a Qualified Transferee and each has obtained any consents required under
the Asset Documents to acquire and transfer the Note and the other Purchased
Items to the Seller or the Purchaser, as applicable.


 


(xvi)          Immediately prior to the sale, transfer and assignment to
the Purchaser under the Repurchase
Documents, the Seller had good and marketable title to, and was the sole
legal and beneficial owner of, the Note and the other Purchased Items, and the
Seller is transferring the Note and the other Purchased Items free and clear of
any and all Liens (other than Permitted Liens) and the interests or claims of
third parties.  Upon consummation of the
transactions contemplated by this Agreement, the Seller will have validly and
effectively conveyed to the Purchaser
all of the Seller’s legal, equitable and beneficial interest and title in and
to the related Note and the other Purchased Items, free and clear of any Lien
(other than Permitted Liens), subject to the Seller’s rights under the
Agreement.  The Seller has not
effectuated any transfer, sale, assignment, pledge, hypothecation or other
conveyance of its rights, interests or obligations under any Asset Document,
the Note or the Purchased Items except in connection with the Agreement.


 


13

















 


(xvii)         Other than consents and approvals obtained as of the related
Closing Date or those already granted in the Asset Documents governing the Note
and the other Purchased Items, no consent or approval by any Person is required
in connection with the Purchaser’s acquisition of the Note and the other
Purchased Items, for the Purchaser’s exercise of any rights or remedies in
respect of the Note and the other Purchased Items  or for the Purchaser’s sale or other
disposition of the Note and the other Purchased Items.  No other impediment exists to any such
transfer or exercise of rights or remedies. 
No third party holds any “right of first refusal”, “right of first
negotiation”, “right of first offer”, purchase option, or other similar rights
of any kind.


 


(xviii)        The Seller has delivered to the Purchaser all documents
necessary to transfer the Note and the related Purchased Items to the
Purchaser.


 


(xix)         As
of the date of its issuance, the Note complied in all material respects with,
or was exempt from, all requirements of all Applicable Law relating to the
issuance and transfer thereof including, without limitation, any registration
requirements of the Securities Act of 1933, as amended.


 


(xx)          Except
as included in the Asset Documents, there is no document that by its terms
modifies or affects the rights and obligations of the holder of the Note and
the other Purchased Items, the terms of the related pooling and servicing
agreement or any other agreement relating to the Note and the other Purchased
Items, and, since issuance, there has been no material change or waiver to any
term or provision of any such document, instrument or agreement.


 


(xxi)         Subject
to terms of the Asset Documents, no consent, approval, authorization or order
of, or registration or filing with, or notice to, any court or governmental
agency or body having jurisdiction or regulatory authority over Seller or NRFC
Luxembourg is required for any transfer or assignment of the Note and the other
Purchased Items.


 


(xxii)        Except
as included in the Asset Documents, (i) no interest shortfalls have
occurred and no realized losses have been applied to the Note or the other
Purchased Items or otherwise incurred with respect to any mortgage loan,
mezzanine loan or debt related to the Note or the other Purchased Items and (ii) Seller
is not aware of any circumstances that could have a material adverse effect on
the Note or the related Purchased Items.


 


(xxiii)       The
Seller has not received written notice of any outstanding liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind for which the holder of the Note or the
other Purchased Items is or may become obligated.


 


(xxiv)       The
Asset Documents contain usual and customary rights of a holder of the Note and
the other Purchased Items with regard to approval and consent rights and rights
to receive payments of principal, interest, principal and interest and periodic
information notices and reports.


 


(xxv)        No
holder of the Note and other Purchased Items is obligated to make any advances
or pay any fees, costs or expenses under the terms of the Asset Documents or as
a result of being a holder of the Note and other Purchased Items.


 


14

















 


(xxvi)       There
was and is no valid offset, defense, counterclaim, abatement or right to
rescission with respect to the Note, the other Purchased Items or any of the
related Asset Documents or other agreements executed in connection therewith.


 


(xxvii)      (a) Other
than payments due but not yet thirty (30) days or more delinquent, there
is no material default, breach, violation or event of acceleration existing
under the Asset Documents, the Note, the related Purchased Items or the Loan,
and no event (other than payments due but not yet delinquent) which, with the
passage of time or with notice and the expiration of any grace or cure period,
would constitute a material default, breach, violation or event of acceleration
thereunder; provided, however, that this representation does not
address or otherwise cover any default, breach, violation or event of
acceleration that specifically pertains to any matter otherwise covered by any
other representation in any other paragraph of this Section 5, and (b) neither
the Seller, NRFC Luxembourg, any servicer or any holder of the Note, the other
Purchased items or the Loan has waived any material default, breach, violation
or event of acceleration under the Asset Documents, the Note, the related
Purchased Items or the Loan, except for a written waiver provided to the
Purchaser in advance of the Closing Date and contained in the related Asset
File.


 


(xxviii)     The
Note, the Participation and the Loan are not, and in the prior twelve (12)
months, have not been, thirty (30) days or more past due.


 


(xxix)       The
Seller has no information or reason to believe that the Note, the Participation
or the Loan will not be paid in full.


 


(x)                                 Chief Executive
Office.  The Seller’s chief executive
office is located in the Cayman Islands and NRFC Luxembourg’s chief executive
office is located in Luxembourg.


 


(y)                                 Foreign Seller
Representations.


 


(i)            The Seller is subject to civil and commercial Applicable Laws
with respect to its obligations under this Agreement and the other Repurchase
Documents to which it is a party, and the execution, delivery and performance
by the Seller of this Agreement and the other Repurchase Documents constitute
and will constitute private and commercial acts and not public or governmental
acts.  Neither the Seller nor any of its
Property has any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under the laws of the
jurisdiction in which the Seller is organized and existing in respect of its
obligations under this Agreement and the other Repurchase Documents.


 


(ii)           This
Agreement and the other Repurchase Documents are in proper legal form under the
Applicable Laws of the jurisdiction in which the Seller is organized and
existing for the enforcement thereof against the Seller under the Applicable
Laws of such jurisdiction, and to ensure the legality, validity,
enforceability, priority or admissibility in evidence of this Agreement and the
other Repurchase Documents.  It is not
necessary to ensure the legality, validity, enforceability, priority or admissibility
in evidence of this Agreement and/or the other Repurchase Documents that this
Agreement and/or the other Repurchase Documents be filed, registered or
recorded with, or executed or notarized before, any court or other authority in
the jurisdiction in which the Seller is organized and existing or that any
registration charge or stamp or similar tax be paid on or in respect of this
Agreement and/or the other Repurchase Documents or any other document, except
for (A) any such filing, registration, recording, execution or
notarization as has been made or is not required to be made until this
Agreement, any other 


 


15

















 


Repurchase Document or
any other document is sought to be enforced and (B) any charge or tax as
has been timely paid.


 


(iii)          There
is no tax, levy, impost, duty, fee, assessment or other governmental charge, or
any deduction or withholding, imposed by any Governmental Authority in or of
the jurisdiction in which the Seller is organized and existing either (A) on
or by virtue of the execution or delivery of this Agreement and the other
Repurchase Documents or (B) on any payment to be made by the Seller
pursuant to this Agreement and the other Repurchase Documents, except as has
been disclosed to the Purchaser.


 


(iv)          The
execution, delivery and performance of this Agreement and the other Repurchase
Documents executed by the Seller are, under applicable foreign exchange control
regulations of the jurisdiction in which the Seller is organized and existing,
not subject to any notification or authorization except (A) such as have
been made or obtained or (B) such as cannot be made or obtained until a
later date (provided that any notification or authorization described in
clause (C) shall be made or obtained as soon as is reasonably
practicable).


 


(z)                                  Separateness.


 


The
Seller is in compliance with Subsection 6(r) of this
Agreement.


 


Section 6.              Covenants of the Seller.


 


The Seller hereby covenants with the Purchaser as
follows:


 


(a)                                  Compliance with
Laws and Contractual Obligations.  The Seller shall comply in all material
respects with all Applicable Laws (including Environmental Laws), including
those that apply to the Note and the other Purchased Items or any part thereof,
and shall comply, and perform all duties and obligations under, all Contractual
Obligations and all Indebtedness, including under the Note and the other
Purchased Items.


 


(b)                                 Payment of
Taxes.  The Seller shall pay and
discharge all taxes, assessments and governmental charges or levies imposed on
it or on its income or profits or on any of its Property prior to the date on
which penalties attach thereto, except for any such tax, assessment, charge or
levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained in
accordance with GAAP.


 


(c)                                  Corporate
Existence.  The Seller
shall continue to engage in business of the same general type as now conducted
by it and shall preserve and maintain its company existence, rights, franchises
and privileges in the jurisdiction of its formation and will qualify and remain
qualified in good standing as a corporation or other entity in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification has had, or could reasonably be
expected to have, a Material Adverse Effect. 
The Seller shall comply with its Governing Documents and shall not
materially amend its Governing Documents without the Purchaser’s prior written consent
in its discretion.


 


(d)                                 ERISA Matters.  Neither the Seller, the Guarantor nor the
Pledgor will (i) engage or permit any ERISA Affiliate  to engage in any prohibited transaction
for which an exemption is not available or has not previously been obtained
from the United States Department of Labor, (ii) permit to exist any
accumulated funding deficiency, as defined in Section 302(a) of ERISA
and Section 412(a) of the Code, or funding deficiency with respect to
any Benefit Plan other than a Multiemployer Plan, (iii) fail to make any
payments to a Multiemployer Plan that the Seller or any ERISA Affiliate may be 


 


16

















 


required
to make under the agreement relating to such Multiemployer Plan or any law
pertaining thereto, (iv) terminate any Benefit Plan so as to result in any
liability,  (v) permit to
exist any occurrence of any Reportable Event or (vi) otherwise violate the
provisions of ERISA or the Code with respect to any Benefit Plan.


 


(e)                                  Payment of
Obligations.  The Seller
shall pay, discharge or otherwise satisfy at or before maturity or before they
become delinquent, as the case may be, all its obligations and Indebtedness of
whatever nature, except where the amount or validity thereof is currently being
contested in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of the Seller.


 


(f)                                    Keeping of
Records and Books of Account.  The Seller will maintain and implement
administrative and operating procedures (including, without limitation, an
ability to recreate records evidencing the Note and the other Purchased Items
in the event of the destruction of the originals thereof) and will keep and
maintain all documents, books, records and other information reasonably
necessary or advisable in which complete entries are made in accordance with
GAAP and Applicable Laws.


 


(g)                                 Notices.  The Seller will furnish written notice to the
Purchaser with respect to the following:


 


(i)            Representations. 
Promptly upon notice or knowledge thereof, notice that any
representation or warranty set forth in the Repurchase Documents by either the
Seller, the Guarantor or the Pledgor or by NRFC Luxembourg under the Note or
other Purchased Items was or is incorrect and the Seller shall at the same time
deliver to the Purchaser a written notice setting forth in reasonable detail
the nature of such facts and circumstances;


 


(ii)           Covenants.  Promptly upon notice or knowledge thereof,
notice of any material default with respect to any covenant, duty, obligation
or agreement of the Seller, the Guarantor or the Pledgor under any Repurchase
Document or by NRFC Luxembourg under the Note or other Purchased Items;


 


(iii)          Material
Events.  Promptly upon notice or
knowledge thereof, notice of any other event or circumstances that, in the
reasonable judgment of the Seller, the Guarantor or the Pledgor, is likely to
have a Material Adverse Effect;


 


(iv)          Event
of Default.  The Seller shall notify
the Purchaser promptly upon the Seller, the Guarantor or the Pledgor becoming
aware of any event which would constitute an Event of Default.


 


(v)           Casualty.  With respect to the Note, the other Purchased
Items and the Loan, promptly upon notice or knowledge thereof, notice that any
portion of any Mortgaged Property has been damaged by waste, fire, earthquake
or earth movement, flood, tornado or other casualty, or otherwise damaged so as
to affect adversely the Mortgaged Property or the Market Value of the Note;


 


(vi)          Liens.  Promptly upon notice or knowledge thereof,
notice of any Lien or security interest on, or claim asserted against, any
Mortgaged Property, the Loan, the Note or any other Purchased Item;


 


(vii)         Defaults.  Promptly upon notice or knowledge thereof,
notice of (A) any material default (beyond any applicable notice and cure
period) related to any Asset Documents, the Note 


 


17

















 


or any other Purchased Item
or the Loan, or (B) any default (beyond any applicable notice and cure
period) under any Contractual Obligation or Indebtedness of the Seller, the
Guarantor, the Pledgor or any of their Subsidiaries, which, if not cured, could
reasonably be expected to have a Material Adverse Effect;


 


(viii)         Losses. 
Promptly upon notice or knowledge thereof, notice of any loss or
expected loss in respect of the Loan, the Note, any other Purchased Item or any
portion of any Mortgaged Property, or any other event or change in
circumstances or expected event or change in circumstances that could be reasonably
be expected to result in a material decline in the Market Value of the Note or
the other Purchased Items, or the value or cash flow of the Note, any other
Purchased Item, the Loan or any portion of any Mortgaged Property;


 


(ix)           Change
of Chief Executive Office.  Promptly
notice of any change in the Seller’s or NRFC Luxembourg’s chief executive
office.


 


(x)            Sales.  Promptly upon notice or knowledge thereof,
notice of the conveyance, sale, lease, assignment, transfer or other
disposition of any Property, business or assets of the Seller, the Guarantor or
the Pledgor, whether now owned or hereafter acquired (with the exception of
this Agreement), which could reasonably be expected to have a Material Adverse
Effect; and


 


(xi)           Proceedings.  Promptly upon notice or knowledge thereof,
notice of any settlement of, material judgment (including a material judgment
with respect to the liability phase of a bifurcated trial) in or commencement
of any labor controversy (of a material nature), litigation, action, suit,
arbitration or proceeding before any court or governmental department,
commission, board, bureau, agency, arbitrator, investigation or
instrumentality, domestic or foreign, affecting (A) the Note, any of the
other Purchased Items, the Loan or any Mortgaged Property, (B) the
Repurchase Documents or the Asset Documents, (C) the Purchaser’s interest
in the Note or any of the other Purchased Items, or (D) the Seller, the
Guarantor, the Pledgor or NRFC Luxembourg and, with respect to this clause (D) only,
the amount in controversy exceeds $500,000.


 


Each notice pursuant to this
Subsection 6(g) shall be accompanied by a statement of the
Seller, the Guarantor and/or the Pledgor, setting forth details of the
occurrence referred to therein and stating what action the Seller, the
Guarantor, the Pledgor or NRFC Luxembourg has taken or proposes to take with
respect thereto.  In addition, the Seller
shall provide the Purchaser with a copy of any notice received by the Seller from
NRFC Luxembourg under the Note, the other Purchased Items or any other
agreement with NRFC Luxembourg.


 


(h)                                 Perfection.  With respect to the Note and the other
Purchased Items acquired by the Purchaser, the Seller will (i) take all
action required by the Purchaser to grant, perfect, protect and more fully
evidence the Purchaser’s ownership of and first priority perfected Lien on such
Note and the other Purchased Items, including, without limitation, (A) delivering
all original documents to Purchaser’s or its designee’s possession where perfection
thereof is required or permitted by possession, (B) executing or causing
to be executed such other instruments or notices as may be necessary or
appropriate and (ii) taking all additional action that the Purchaser may
reasonably request to perfect, maintain, protect and more fully evidence the
respective interests of the parties to this Agreement and the Repurchase
Documents in such Note and the other Purchased Items.


 


(i)                                     Further
Covenants.  Without
prior written consent of the Purchaser, the Seller shall not:  (i) assign, sell, transfer, pledge or
grant any security interest in or Lien on the Note or any of the other 


 


18

















 


Purchased Items (whether now
existing or hereafter arising) to anyone except the Purchaser, permit any
financing statement (except any financing statements in favor of Purchaser) or
assignment (except for any assignments in favor of the Purchaser) to be on file
in any public office with respect thereto, (ii) permit or suffer to exist
any Lien or right of others to attach to the Note or any of the other Purchased
Items, except as contemplated by this Agreement, (iii) sell, pledge,
assign or suffer to exist any Lien on its interest, if any, hereunder, or (iv) consent
to any amendment, modification or supplement to the Note, the other Purchased
Items or Asset Documents pursuant to which the Note or any of the other
Purchased Items were issued or created or governed that would materially and
adversely affect the Purchaser’s interests hereunder or with respect to the
Note or any of the other Purchased Items without the prior written consent of
the Purchaser.  Immediately upon notice
to the Seller of a Lien or any circumstance which, if adversely determined
would be reasonably likely to give rise to a Lien (other than in favor of the
Purchaser or created by or through Purchaser) on the Note or on any of the
other Purchased Items, the Seller will defend the Note and any of the other
Purchased Items against, and will take such other action as is necessary to
remove, any Lien or claim on or to the Note or any of the other Purchased Items
(other than any Lien created under this Agreement), and the Seller will defend
the right, title and interest of the Purchaser in and to any of the Note and
Purchased Items against the claims and demands of all Persons whomsoever.


 


(j)                                     Investments.  The Seller shall not, and it shall not permit
the Guarantor or the Pledgor or any of their Affiliates to, acquire or maintain
any right or interest in any asset that is senior to or pari passu
with the rights and interests of the Purchaser under this Agreement.


 


(k)                                  Prohibition of
Fundamental Changes.  The Seller
shall not enter into any transaction of merger or consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation, winding up or dissolution) or sell all or substantially all of its
assets.


 


(l)                                     Maintenance of
Property; Insurance.  The Seller
shall keep all Property useful and necessary in its business in good working
order and condition, shall maintain with financially sound and reputable
insurance companies insurance on all its Property in at least such amounts and
against at least such risks as are usually and customarily insured against in
the same general area by companies acting prudently and engaged in the same or
a similar business, and furnish to the Purchaser, upon written request, full
information as to the insurance carried.


 


(m)                               Delivery of
Income.  The Seller will deposit and
cause all Persons acting on its behalf and all servicers, trustees or other
Persons with an obligation to make payments with respect to the Note and other
Purchased Items to deposit all Income received in respect of the Note and the
other Purchased Items into the Collection Account within one (1) Business
Day of receipt thereof.


 


(n)                                 Performance and
Compliance with Purchased Items.  The Seller will (and shall cause NRFC
Luxembourg), at its expense, timely and fully perform and comply with all
provisions, covenants, duties, obligations and other promises required to be
observed by it or NRFC Luxembourg under the Note and the other Purchased Items,
the Repurchase Documents and all other agreements executed in connection with
or related to the foregoing.


 


(o)                                 Purchased Items
Not to be Evidenced by Instruments.  The Seller shall not take any action or
permit any action to be taken to cause the Note or other Purchased Item that is
not, as of the applicable Closing Date, evidenced by an Instrument (as defined
in the UCC) to be so evidenced except in connection with the enforcement or
collection of the Note or other Purchased Items.


 


(p)                                 Change of Name
or Location of Asset Files.  The Seller shall not (and shall not permit
NRFC Luxembourg to) change its name, organizational number, identity, structure
or jurisdiction of 


 


19

















 


formation, move the location
of its principal place of business and chief executive office, or change the
offices where it keeps its records (as defined in the UCC) from the location
referred to on the signature page to this Agreement, unless the Seller has
given at least thirty (30) days’ prior written notice to the Purchaser.


 


(q)                                 Information and
Reports.  The Seller shall promptly
deliver to the Purchaser all information, documents or reports received or
generated by the Seller, the Guarantor, the Pledgor, NRFC Luxembourg or any
Affiliate of the foregoing with respect to the Note and the other Purchased
Items, including, without limitation, information, documents and reports under
or in connection with the Asset Documents and any documents, agreements or
notices delivered or available to the Seller or NRFC Luxembourg with respect to
the Note or the other Asset Documents.


 


(r)                                    Separateness.  The Seller shall (i) own no assets, and
shall not engage in any business, other than the assets and transactions
specifically contemplated by this Agreement; (ii) not incur any
Indebtedness or obligation, secured or unsecured, direct or indirect, absolute
or contingent (including guaranteeing any obligation), other than (A) with
respect to the Asset Documents and (B) as otherwise permitted under this
Agreement; (iii) not make any loans or advances to any Affiliate or third
party and shall not acquire obligations or securities of its Affiliates; (iv) pay
its debts and liabilities (including, as applicable, shared personnel and
overhead expenses) only from its own assets; (v) comply with the
provisions of its Governing Documents; (vi) do all things necessary to
observe organizational formalities and to preserve its existence, and shall not
amend, modify or otherwise change its Governing Documents; (vii) maintain
all of its books, records, financial statements and bank accounts separate from
those of its Affiliates (except that such financial statements may be consolidated
to the extent consolidation is required under the GAAP consistently applied or
as a matter of Applicable Law) and file its own tax returns (except to the
extent consolidation is required or permitted under Applicable Law); (viii) be,
and at all times shall hold itself out to the public as, a legal entity
separate and distinct from any other entity (including any Affiliate), shall
correct any known misunderstanding regarding its status as a separate entity,
shall conduct business in its own name, and shall not identify itself or any of
its Affiliates as a division of the other; (ix) maintain adequate capital
for the normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations; (x) not
engage in or suffer any change of ownership, dissolution, winding up,
liquidation, consolidation or merger in whole or in part; (xi) not
commingle its funds or other assets with those of any Affiliate or any other
Person; (xii) maintain its accounts separate from those of any Affiliate
or any other Person; (xiii) shall not hold itself out to be responsible
for the debts or obligations of any other Person; (xiv) shall not, without
the vote of its Independent Director, (A) file or consent to the filing of
any Insolvency Proceeding with respect to the Seller, institute any proceedings
under any applicable Insolvency Law or otherwise seek any relief under any laws
relating to the relief from debts or the protection of debtors generally with
respect to the Seller, (B) seek or consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar
official for the Seller or a substantial portion of its Properties, or (C) make
any assignment for the benefit of the Seller’s creditors; (xv) shall have
at all times at least one (1) Independent Director (or such greater
number as required by the Purchaser); (xvi) shall maintain an arm’s length
relationship with its Affiliates; (xvii) maintain a sufficient number of
employees in light of contemplated business operations; (xviii) use
separate stationary, invoices and checks; and (xvix) allocate fairly and
reasonably any overhead for shared office space.


 


(s)                                  Negative
Pledge; No Additional Indebtedness.  Until the Debt is indefeasibly paid in full
and except as contemplated under the Repurchase Documents, no portion of the
Capital Stock (or any dividends, distributions or payments with respect
thereto) in the Seller or NRFC Luxembourg or any assets or property of the
Seller or NRFC Luxembourg may (directly or indirectly) be assigned,
transferred, pledged, participated, hypothecated or rehypothecated, nor may any
Liens be granted or exist on any portion of the Capital Stock (or any
dividends, distributions or payments with respect thereto) in


 


20














 


the Seller or NRFC
Luxembourg or any assets or Property of the Seller or NRFC Luxembourg.  After the Closing Date, neither Seller nor
NRFC Luxembourg shall acquire any asset or Property or incur any Indebtedness
or guarantee obligations without the Purchaser’s prior written consent in its
discretion.


 


(t)            Register of
Members.  The Seller shall procure
that the register of members of the Seller shall at all times be maintained in
the Cayman Islands.


 


(u)           The Seller shall
provide evidence to the Purchaser within thirty (30) days of the Closing Date
that the Notices have been acknowledged by the addressees thereof.


 


Section 7.              Grant of a Security Interest.


 


(a)           It
is the express intent of the parties hereto that the conveyance of the Note and
the other Purchased Items by the Seller to the Purchaser as provided in Section 2
hereof be, and be construed as, a sale of the Note and the other Purchased
Items by the Seller to the Purchaser and not as a pledge of the Note and the
other Purchased Items by the Seller to the Purchaser to secure a debt or other
obligation of the Seller.  However, if,
notwithstanding the aforementioned intent of the parties, the Note and the
other Purchased Items are held to be Property of the Seller, then, (a) it
is the express intent of the parties that such conveyance be deemed a pledge of
the Note and the other Purchased Items by the Seller to the Purchaser to secure
a debt or other obligations, more specifically, the Aggregate Unpaids hereunder
and the Repurchase Obligations (collectively, the “Debt”), and (b) (i) this
Agreement shall also be deemed to be a security agreement within the meaning of
Article 9 of the UCC of the applicable jurisdiction; (ii) the
conveyance provided for in Section 2 hereof shall be deemed to be
and the Seller does hereby grant, pledge and assign to the Purchaser a security
interest in all of the Seller’s right, title and interest in and to the Note
and all other Purchased Items as security for the repayment of the Debt; (iii) the
assignment by the Purchaser of the interest of the Purchaser as contemplated by
Section 4 hereof shall be deemed to be an assignment of any
security interest created hereunder; (iv) the possession by the Purchaser
or any of its agents, including, without limitation, any custodian therefor, of
the Note, the Purchased Items (if any), the Asset Documents and such other
items of property as constitute instruments, money, negotiable documents or
chattel paper shall be deemed to be possession by the secured party for
purposes of perfecting the security interest pursuant to Section 9—313 of
the UCC; and (v) notifications to Persons (other than the Purchaser)
holding such property, and acknowledgments, receipts or confirmations from
Persons (other than the Purchaser) holding such property, shall be deemed
notifications to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured party for the
purpose of perfecting such security interest under the UCC and Applicable Law.  The Seller hereby authorizes the filing of
any financing statements, and amendments to financing statements, in any
jurisdictions and with any filing offices as the Purchaser may determine, in
its reasonable discretion, are necessary or advisable to perfect the security
interest to the Purchaser in connection hereunder.  Such financing statements may describe the
collateral in the same manner as described in this Agreement or may contain an
indication or description of collateral that describes such property in any
other manner, including, without limitation, describing such collateral as “all
assets, whether now owned or hereafter acquired, now existing or hereafter
created and wherever located” or “all personal property, whether now owned or
hereafter acquired, now existing or hereafter created and wherever located.”


 


Notwithstanding
anything contained herein to the contrary, no Income, Price Differential,
principal, fees, payments or other amounts received from or in respect of the
Purchased Items or the Repurchase Documents (whether pursuant to the exercise
of rights or remedies hereunder or thereunder or otherwise) shall be applied to
the Indebtedness owed to VFCC under the VFCC Repurchase Facility (whether
pursuant to the exercise of rights or remedies thereunder or otherwise), and no
payments or other amounts received from or in respect of the VFCC Repurchase
Facility shall be applied to any 


 


21

















 


Indebtedness
under the Repurchase Documents, during the time that VFCC is a purchaser under
the VFCC Repurchase Facility.


 


(b)           If an Event of
Default shall have occurred and be continuing, to the extent not already
accelerated, all amounts due to the Purchaser shall automatically be
accelerated, and the Purchaser, without any other notice to or demand upon the
Seller, shall have in any jurisdiction in which enforcement hereof is sought,
in addition to all other rights and remedies under Applicable Law, the same
rights and remedies as the “purchaser” has under the Wachovia Repurchase
Facility upon an “Event of Default” thereunder, mutatis mutandis,
all of the rights and remedies of a secured party under the UCC and any
additional rights and remedies as may be provided to a secured party in any
jurisdiction in which the Seller, NRFC Luxembourg, the Note, the Purchased
Items or any Mortgaged Properties are located, including, without limitation,
the right to take possession of the Purchased Items, and for that purpose the
Purchaser may, so far as the Seller can give authority therefor, enter upon any
premises on which the Purchased Items may be situated and remove the same
therefrom.  The Purchaser may, in its
discretion, require the Seller to assemble all or any part of the Purchased Items
at such location or locations as the Purchaser may reasonably designate.  Unless the Purchased Items are perishable or
threatens to decline speedily in value or are of a type customarily sold on a
recognized market, the Purchaser shall give to the Seller at least ten (10) days
prior written notice of the time and place of any public sale of the Purchased
Items or of the time after which any private sale or any other intended
disposition is to be made.  The Seller
hereby acknowledges that ten (10) days prior written notice of such
sale or sales shall be reasonable notice. 
In addition, the Seller waives any and all rights that it may have to a
judicial hearing in advance of the enforcement of any of the Purchaser’s rights
and remedies hereunder, including, without limitation, the Purchaser’s right
following an Event of Default to take immediate possession of the Purchased
Items and to exercise its rights and remedies with respect thereto.


 


Section 8.              Indemnification; Expenses.


 


(a)           The
Seller agrees to indemnify and hold harmless the Purchaser and each of its
Affiliates and Subsidiaries and their present and former respective officers,
directors, employees, agents, advisors and other representatives (each, an “Indemnified
Party”) from and against any and all direct, as opposed to consequential,
claims, damages, losses, liabilities, costs, civil penalties and expenses
(including, without limitation, expenses under Subsection 8(b) and Section 27
and reasonable attorneys fees, costs, expenses and disbursements) (each a “Cost”
and collectively, “Costs”) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case relating to or arising out
of any of the Note, the Purchased Items, the Repurchase Documents, the Asset
Documents or any transaction contemplated hereby or thereby, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of
any of the Note, the Purchased Items, the Repurchase Documents, the Asset
Documents or any transaction contemplated hereby or thereby, except to the extent
such Cost is found in a final, non appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence,
bad faith or willful misconduct.  Costs
subject to this Section 8 shall include, but not be limited to, (i) Costs
incurred in connection with the violation of any Environmental Laws and the
existence, correction or removal of any Materials of Environmental Concern in
any way affecting any Mortgaged Property or any real property and (ii) all
Costs with respect to the Note, any Purchased Items or any Mortgaged Property
relating to or arising out of any violation or alleged violation of any
Applicable Law, except to the extent any such Costs are found in a final, non
appealable judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party’s gross negligence, bad faith or willful
misconduct.  In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section 8
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Seller, its officers, directors,
shareholders, employees or creditors, an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or not any
transaction contemplated hereby is consummated. 
The Seller agrees not to assert 


 


22

















 


any
claim against any Indemnified Party, or any of their respective directors,
officers, employees, attorneys, agents, and advisers, on any theory of
liability for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Repurchase Documents, the Asset Documents or
any of the transactions contemplated herein or therein or the actual or
proposed use of the proceeds of this Agreement. 
In any suit, proceeding or action brought by an Indemnified Party in
connection with the Note, the other Purchased Items, any Mortgaged Property,
the Loan or the Asset Documents for any sum owing hereunder, or to enforce any
provisions of the Note, the other Purchased Items, any Mortgaged Property, the
Loan, the Asset Documents or any documents related to the foregoing the Seller
will save, indemnify and hold such Indemnified Party harmless from and against
all expense, loss or damage suffered by reason of any defense, set—off,
counterclaim, recoupment or reduction or liability whatsoever of any Obligor,
account debtor or obligor thereunder, arising out of a breach by the Seller of
any obligation thereunder or arising out of any other agreement, indebtedness
or liability at any time owing to or in favor of such Obligor, account debtor
or obligor or its successors from the Seller. 
The Seller also agrees to reimburse an Indemnified Party as and when
billed by such Indemnified Party for all the Indemnified Party’s costs and
expenses incurred in connection with the enforcement or the preservation of the
Purchaser’s rights under the Repurchase Documents, the Asset Documents or any
transaction contemplated hereby and thereby, including, without limitation, the
reasonable fees, costs, expenses and disbursements of its counsel.


 


(b)           The
Seller shall, whether or not the Transaction contemplated hereby is
consummated:  (i) pay as and when
billed by Purchaser all reasonable out—of—pocket costs and expenses (including,
without limitation, all reasonable fees, costs, expenses and disbursements of
outside legal counsel, accounting, consulting, brokerage or other similar
professional fees or expenses), and any reasonable fees and expenses of the
Purchaser associated with travel or other costs relating to any testing, due
diligence, appraisals or examinations conducted in connection with the
Transaction, and the amount of such costs and expenses shall, until paid, bear
interest at the Pricing Rate (A) in connection with the development,
preparation, consummation, administration, filing, recording, execution and
delivery of, and any amendment, supplement, modification waiver or consent to,
this Agreement, the Repurchase Documents, the Asset Documents or any other
documents, agreements or instruments prepared in connection herewith or
therewith and the documents, agreements and instruments referred to therein and
(B) in connection with the enforcement of or the exercise or preservation
of rights under this Agreement, the Repurchase Documents, the Asset Documents,
other documents, instruments or agreements prepared in connection herewith or
therewith, the documents, agreements and instruments referred to therein and
all amendments, supplements, modifications, waivers and consents relating to
any of the foregoing; and (ii) pay and hold the Purchaser harmless from
and against any and all present and future stamp, documentary, excise, issue,
sales and use, value added, property and other similar taxes and fees (other
than taxes imposed on net income) with respect to the matters described in
foregoing clause (i) or the funding or maintenance of the
Transaction hereunder and hold the Purchaser harmless from and against any and
all liabilities with respect to or resulting from any delay or omission to pay
such taxes and fees.


 


(c)           The
agreements and obligations of the Seller contained in this Section 8
shall survive the repayment of all amounts owing to the Purchaser by the Seller
under the Agreement and the termination of this Agreement.


 


Section 9.              Successors and Assigns.


 


The
rights, obligations and duties of the Seller under this Agreement shall not be
assigned by the Seller without the prior written consent of the Purchaser.  The Purchaser shall be entitled to assign its
rights under this Agreement, the other Repurchase Documents, the Note and the
Purchased Items without the consent of the Seller.  Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller and the
Purchaser and their permitted successors and assigns.


 


23

















 


Section 10.            Amendments and Waivers.


 


No
amendment, waiver or other modification of any provision of this Agreement
shall be effective without the written agreement of the Seller and the
Purchaser.  Any waiver or consent shall
be effective only if it is in writing and only in the specific instance and for
the specific purpose for which given.


 


Section 11.            Notices, Etc.


 


All
notices and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including telex communication and communication
by facsimile copy) and mailed, telexed, transmitted or delivered, as to each party
hereto, at its address set forth under its name on the signature pages hereof
or at such other address as shall be designated by such party in a written
notice to the other parties hereto.  All
such notices and communications shall be effective, upon receipt, or in the
case of (a) notice by telex, when telexed against receipt of answer back,
or (b) notice by facsimile copy, when verbal communication of receipt is
obtained.  The Seller shall not be
entitled to any notices of any nature whatsoever from the Purchaser except with
respect to matters for which this Agreement or the Repurchase Documents
specifically and expressly provide for the giving of notice by the Purchaser to
the Seller and except with respect to matters for which the Seller is not, pursuant
to Applicable Law, permitted to waive the giving of notice.


 


Section 12.            Set—offs.


 


(a)           In
addition to any rights and remedies of the Purchaser provided under this
Agreement, the Repurchase Documents and by Applicable Law, the Purchaser shall
have the right, without prior notice to the Seller, any such notice being
expressly waived by the Seller to the extent permitted by Applicable Law, upon
any amount becoming due and payable by the Seller to the Purchaser hereunder,
under the Repurchase Documents or otherwise (whether at the stated maturity, by
acceleration or otherwise) to set—off and appropriate and apply against such
amount any and all monies and other Property of the Seller, any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any and all other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, and in each case at any time held or owing by the
Purchaser or any Affiliate thereof to or for the credit or the account of the
Seller.  The Purchaser agrees promptly to
notify the Seller after any such set—off and application made by the Purchaser,
provided that the failure to give such notice shall not affect the validity of
such set—off and application.


 


(b)           The
Seller hereby waives any right of setoff it may have or to which it may be
entitled under this Agreement, the other Repurchase Documents or Applicable Law
from time to time against the Purchaser or its assets.


 


Section 13.            No Waiver; Remedies.


 


(a)           No
failure on the part of the Purchaser to exercise, and no delay in exercising,
any right or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right or remedy hereunder preclude any
further exercise thereof or the exercise of any other right.  The rights and remedies herein provided are
cumulative and not exclusive of any rights and remedies provided by Applicable
Law.  Application of the Default Rate
after an Event of Default or otherwise shall not be deemed to constitute a
waiver of any Event of Default or any rights or remedies of the Purchaser under
this Agreement, the other Repurchase Documents or Applicable Law, or a consent
to any extension of 


 


24

















 


time
for the payment or performance of any obligation with respect to which the
Default Rate after an Event of Default or otherwise may be invoked.


 


(b)           In
the event that a claim or adjudication is made that the Purchaser has acted
unreasonably or unreasonably delayed acting in any case where by Applicable Law
or under this Agreement or the other Repurchase Documents it has an obligation
to act reasonably or promptly, the Purchaser shall not be liable for any
punitive, consequential or incidental damages, and the Seller’s sole remedies
with respect thereto shall be limited to commencing an action seeking
injunctive relief, actual damages or declaratory judgment.


 


Section 14.            Term of this Agreement.


 


This
Agreement, including, without limitation, the Seller’s representations,
warranties, covenants and duties set herein, create and constitute the
continuing obligation of the parties hereto in accordance with its terms and
shall remain in full force and effect until the Aggregate Unpaids are
indefeasibly paid in full; provided, however, notwithstanding the
indefeasible repayment in full of the Aggregate Unpaids and/or the termination
of this Agreement, the indemnification and expense provisions contained in the
Repurchase Documents, and any other provision that by its terms expressly
survives termination shall each be continuing and shall survive any termination
of this Agreement.


 


Section 15.            Governing Law; Consent to
Jurisdiction and Venue.


 


THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF).  EACH OF THE PARTIES HERETO
HEREBY AGREES TO THE NON—EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE STATE OF NEW YORK. 
EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN
ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.


 


Section 16.            Waiver of Jury Trial.


 


TO
THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY HEREBY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH, RELATED
TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH
THIS AGREEMENT, THE REPURCHASE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.  INSTEAD, ANY SUCH DISPUTE
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.


 


Section 17.            Legal Matters.


 


The
Seller hereby acknowledges that (i) it has been advised by counsel of its
choosing in the negotiation, execution and delivery of the Repurchase
Documents; (ii) it has no fiduciary relationship with the Purchaser; and (iii) no
joint venture exists with the Purchaser.


 


25

















 


Section 18.            Recourse Against Certain Parties.


 


No
recourse under or with respect to any obligation, covenant or agreement
(including, without limitation, the payment of any fees or any other
obligations) of the Purchaser or the Seller as contained in this Agreement, the
Repurchase Documents or any other agreement, instrument or document entered
into by the Purchaser, the Seller or any such party pursuant hereto or thereto
or in connection herewith or therewith shall be had against any administrator
of the Purchaser, the Seller or any incorporator, Affiliate (direct or
indirect), owner, member, partner, stockholder, officer, director, employee,
agent or attorney of the Purchaser, the Seller or of any such administrator, as
such, by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that the agreements of the
Purchaser and the Seller contained in this Agreement, the Repurchase Documents
and all of the other agreements, instruments and documents entered into by it
pursuant hereto or thereto or in connection herewith or therewith are, in each
case, solely the corporate obligations of the Purchaser and the Seller and that
no personal liability whatsoever shall attach to or be incurred by any administrator
of the Purchaser, the Seller or any incorporator, owner, member, partner,
stockholder, Affiliate (direct or indirect), officer, director, employee, agent
or attorney of the Purchaser, the Seller or of any such administrator, as such,
or any other of them, under or by reason of any of the obligations, covenants
or agreements of the Purchaser or the Seller contained in this Agreement, the
Repurchase Documents or in any other such instruments, documents or agreements,
or that are implied therefrom.


 


Section 19.            Protection of Right, Title and
Interest; Further Action.


 


(a)           The
Seller agrees that from time to time, at its expense, it will promptly execute
and deliver all instruments and documents, and take all actions, that the
Purchaser may request in order to perfect, protect or more fully evidence the
Transaction hereunder and the security interest granted in the Note and the
other Purchased Items, or to enable the Purchaser to exercise and enforce its
rights and remedies hereunder, under any Repurchase Document or under the Note
or the other Purchased Items.


 


(b)           If
the Seller fails to perform any of its obligations hereunder, the Purchaser may
(but shall not be required to) perform, or cause performance of, such
obligation; and the Purchaser’s costs and expenses incurred in connection
therewith shall be payable by the Seller. 
The Seller irrevocably appoints the Purchaser as its attorney—in—fact
and authorizes the Purchaser to act on behalf of the Seller (i) to file
financing statements necessary or desirable in the Purchaser’s discretion to
perfect and to maintain the perfection and priority of the security interest in
the Note and the other Purchased Items, and (ii) to file a carbon,
photographic or other reproduction of this Agreement or any financing statement
with respect to the Note and the other Purchased Items as a financing statement
in such offices as the Purchaser in its discretion deems necessary or desirable
to perfect and to maintain the perfection and priority of the interests in the Note
and the other Purchased Items.  This
appointment is coupled with an interest and is irrevocable.


 


Section 20.            Execution in Counterparts;
Severability; Integration.


 


(a)           This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts (including by facsimile), each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement.


 


(b)           Each
provision of this Agreement shall be valid, binding and enforceable to the
fullest extent permitted by Applicable Law. 
In case any provision in or obligation, covenant, representation or
warranty under this Agreement shall be invalid, illegal, void or unenforceable
in any jurisdiction (either in its entirety or as applied to any Person, fact,
circumstance, action or inaction), the validity, legality and 


 


26

















 


enforceability
of the remaining provisions or obligations, covenants, representations or warranties
or of such provision or obligation, covenant, representation or warranty in any
other jurisdiction or as applied to any Person, fact, circumstance, action or
inaction, shall not in any way be affected or impaired thereby.  To the extent permitted by Applicable Law,
the parties waive any provision of Applicable Law which prohibits or renders
void, unenforceable or invalid any provision hereof.


 


(c)           This
Agreement and any other Repurchase Document executed in connection herewith
contain the final and complete integration of all prior expressions by the
parties hereto and thereto with respect to the subject matter hereof and
thereof and shall constitute the entire agreement among the parties hereto and
thereto with respect to the subject matter hereof and thereof, superseding all
prior oral or written understandings.


 


Section 21.            Heading and Exhibits.


 


The
headings herein are for purposes of references only and shall not otherwise
affect the meaning or interpretation of any provision hereof.  The schedules and exhibits attached hereto
and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.


 


Section 22.            Disclosure Relating to Certain
Federal Protections.


 


The parties acknowledge that they have been advised
that:


 


(a)           in
the case of a Transaction in which one of the parties is a broker or dealer
registered with the Securities and Exchange Commission (“SEC”) under Section 15
of the Securities Exchange Act of 1934, as amended, provisions of the
Securities Investor Protection Act of 1970 (“SIPA”) will not provide
protection to the other parties with respect to the Transaction hereunder;


 


(b)           in
the case of a Transaction in which one of the parties is a government
securities broker or a government securities dealer registered with the SEC
under Section 15C of the Exchange Act, SIPA will not provide protection to
the other parties with respect to the Transaction hereunder;


 


(c)           in
the case of a Transaction in which one of the parties is a financial
institution, funds held by the financial institution pursuant to a Transaction
hereunder are not a deposit and therefore are not insured by the Federal
Deposit Insurance Corporation or the National Credit Union Share Insurance
Fund, as applicable; and


 


(d)           in
the case of a Transaction in which one of the parties is an “insured depository
institution” as that term is defined in Section 1813(c)(2) of
Title 12 of the United States Code, funds held by the financial
institution pursuant to a Transaction hereunder are not a deposit and therefore
are not insured by the Federal Deposit Insurance Corporation, the Savings
Association Insurance Fund or the Bank Insurance Fund, as applicable.


 


Section 23.            Intent.


 


(a)           The
parties recognize that the Transaction is a “Repurchase Agreement” as
that term is defined in Section 101 of Title 11 of the United States
Bankruptcy Code (except insofar as the type of Note and the other Purchased
Items subject to such Transaction or the term of such Transaction would render
such definition inapplicable) and a “Securities Contract” as that term
is defined in Section 741 of Title 11 of the United States Code
(except insofar as the type of Note and the other Purchased Items subject to
such Transaction would render such definition inapplicable).  It is also understood and agreed 


 


27

















 


that
this Agreement constitutes a “Master Netting Agreement” as that term is defined
in Section 101 of Title 11 of the United States Code.


 


(b)          The parties agree and acknowledge that if a party hereto is
an “Insured Depository Institution,” as such term is defined in the
Federal Deposit Insurance Act, as amended (“FDIA”), then the Transaction
hereunder is a “Qualified Financial Contract,” as that term is defined
in FDIA and any rules, orders or policy statements thereunder (except insofar
as the type of Note and the other Purchased Items subject to such Transaction
would render such definition inapplicable).


 


(c)           It
is understood that this Agreement constitutes a “Netting Contract”, as
such term is defined in and subject to Title IV of the Federal Deposit
Insurance Corporation Improvement Act of 1991 (“FDICIA”), and each
payment entitlement and payment obligation under the Transaction hereunder
shall constitute a “Covered Contractual Payment Entitlement” or “Covered
Contractual Payment Obligation”, respectively, as defined in and subject to
FDICIA (except insofar as one or both of the parties is not a “Financial
Institution” as that term is defined in FDICIA or regulations promulgated
thereunder).


 


(d)           It
is understood that any party’s right to liquidate the Note and the other
Purchased Items delivered to it in connection with the Transaction hereunder or
to exercise any other remedies pursuant to Section 7  is a contractual right to liquidate such Transaction as
described in Sections 555, 559 and 561 of Title 11 of the United States Code,
as amended.


 


Section 24.            Use of Employee Plan Assets.


 


(a)           If
assets of an employee benefit plan subject to any provision of ERISA are
intended to be used by either party hereto (the “Plan Party”) in a
Transaction, the Plan Party shall so notify the other party prior to the
Transaction.  The Plan Party shall
represent in writing to the other party that the Transaction does not constitute
a prohibited transaction under ERISA or is otherwise exempt therefrom, and the
other party may proceed in reliance thereon but shall not be required so to
proceed.


 


(b)           Subject to the last sentence of Subsection 24(a) above,
any such Transaction shall proceed only if the Seller furnishes or has
furnished to the Purchaser its most recent available audited statement of its
financial condition and its most recent subsequent unaudited statement of its
financial condition.


 


(c)           By
entering into a Transaction pursuant to this Section 24, the Seller
shall be deemed (i) to represent to the Purchaser that since the date of
the Seller’s latest such financial statements, there has been no material
adverse change in the Seller’s financial condition which Seller has not
disclosed to the Purchaser, and (ii) to agree to provide the Purchaser
with future audited and unaudited statements of its financial condition as they
are issued, so long as it is the Seller in any outstanding Transaction
involving a Plan Party.


 


Section 25.            Increased Costs; Capital
Adequacy; Illegality.


 


(a)           If
either (i) the introduction of or any change (including, without
limitation, any change by way of imposition or increase of reserve
requirements) in  or in the interpretation of any
law or regulation, or (ii) the compliance by the Purchaser  with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law) shall (a) subject
the Purchaser to any Tax (except for Taxes on the overall net income of the
Purchaser), duty or other charge with respect to any ownership interest in the
Note and the other Purchased Items, or any right to enter into the Transaction
hereunder, or on any payment made hereunder, (b) impose, modify or deem
applicable any reserve requirement (including, without limitation, any reserve
requirement imposed by the Board of 


 


28

















 


Governors
of the Federal Reserve System, but excluding any reserve requirement, if any,
included in the determination of the Price Differential), special deposit or
similar requirement against assets of, deposits with or for the amount of, or
credit extended by, the Purchaser or (c) impose any other condition
affecting the ownership interest in the Note and the other Purchased Items
conveyed to the Purchaser hereunder or the Purchaser’s rights hereunder, the
result of which is to increase the cost to the Purchaser or to reduce the
amount of any sum received or receivable by the Purchaser under this Agreement
and the other Repurchase Documents, then within ten (10) days after
demand by the Purchaser (which demand shall be accompanied by a statement
setting forth the basis for such demand), the Seller shall pay directly to the
Purchaser such additional amount or amounts as will compensate the Purchaser
for such additional or increased cost incurred or such reduction suffered.


 


(b)           If
either (i) the introduction of or any change in or in the interpretation
of any law, guideline, rule, regulation, directive or request or (ii) compliance
by the Purchaser with any law, guideline, rule, regulation, directive or
request from any central bank or other Governmental Authority or agency
(whether or not having the force of law), including, without limitation,
compliance by the Purchaser with any request or directive regarding capital
adequacy, has or would have the effect of reducing the rate of return on the
capital of the Purchaser as a consequence of its obligations hereunder or under
the other Repurchase Documents or arising in connection herewith or therewith
to a level below that which the Purchaser could have achieved but for such
introduction, change or compliance (taking into consideration the policies of
the Purchaser with respect to capital adequacy) by an amount deemed by the
Purchaser to be material, then from time to time, within ten (10) days
after demand by the Purchaser (which demand shall be accompanied by a statement
setting forth the basis for such demand), the Seller shall pay directly to the
Purchaser such additional amount or amounts as will compensate the Purchaser
for such reduction.  For the avoidance of
doubt, any interpretation of Accounting Research Bulletin No. 51 by the
Financial Accounting Standards Board shall constitute an adaptation, change,
request or directive subject to this Subsection 25(b).


 


(c)           If
the Purchaser shall notify the Seller that a Eurocurrency Disruption Event has
occurred, the Transaction in respect of which the Price Differential accrues at
the Eurocurrency Rate shall immediately be converted into a Transaction in
respect of which the Price Differential accrues at the Base Rate (plus the
applicable spread set forth in the Pricing Rate).


 


(d)           In
determining any amount provided for in this Section 25, the
Purchaser may use any reasonable averaging and attribution methods.  The Purchaser making a claim under this Section 25
shall submit to the Seller a written description as to such additional or
increased cost or reduction and the calculation thereof, which written
description shall be conclusive absent demonstrable error.  Without prejudice to the survival of any
other agreement of the Seller hereunder, the agreements and obligations of the
Seller contained in this Section 25 shall survive the termination
of this Agreement.


 


Section 26.            Taxes.


 


(a)           All
payments made by an Obligor in  respect of the
Note, the Participation and any other Purchased Item and all payments made by
the Seller, the Guarantor or the Pledgor under this Agreement and the other
Repurchase Documents will be made free and clear of and without deduction or
withholding for or on account of any Taxes. 
If any Taxes are required to be withheld from any amounts payable to the
Purchaser, then the amount payable by such Person will be increased (such
increase, the “Additional Amount”) such that every net payment made
under this Agreement and the other Repurchase Documents after withholding for
or on account of any Taxes (including, without limitation, any Taxes on such
increase) is not less than the amount that would have been paid had no such
deduction or withholding been deducted or withheld.  The foregoing obligation to pay Additional
Amounts, however, will not apply with respect to net income or franchise taxes
imposed on the Purchaser, with respect to payments required 


 


29

















 


to
be made by the Seller, the Guarantor or the Pledgor under this Agreement and/or
the other Repurchase Documents, by a taxing jurisdiction in which the Purchaser
is organized, conducts business or is paying taxes (as the case may be).


 


(b)           The
Seller will indemnify the Purchaser for the full amount of Taxes payable by
such Person in respect of Additional Amounts and any liability (including
penalties, interest and expenses) arising therefrom or with respect
thereto.  All payments in respect of this
indemnification shall be made within ten (10) days from the date a
written invoice therefor is delivered to the Seller.


 


(c)           Within
thirty (30) days after the date of any payment by the Seller of any Taxes,
the Seller will furnish to the Purchaser, at its address set forth under its
name on the signature pages hereof, appropriate evidence of payment
thereof.  Without prejudice to the
survival of any other agreement of the Seller hereunder, the agreements and
obligations of the Seller contained in this Section 26 shall
survive the termination of this Agreement.


 


Section 27.            Due Diligence.


 


The
Seller acknowledges that the Purchaser has the right to perform continuing due
diligence and other reviews with respect to the Note and the other Purchased
Items and the Seller, the Guarantor and the Pledgor for purposes of verifying
compliance with the representations, warranties, covenants, agreements and
specifications made hereunder, under the Repurchase Documents, the Asset
Documents or otherwise, and the Seller agrees on behalf of itself and the
Guarantor and the Pledgor that, upon reasonable (but no less than one (1) Business
Day’s) prior notice, unless an Event of Default shall have occurred, in which
case no notice is required, to the Seller, as applicable, the Purchaser or its
authorized representatives shall be permitted during normal business hours to
examine, inspect, and make copies and extracts of, the books and records of the
Seller, the Guarantor and/or the Pledgor and any and all documents, records,
agreements, instruments or information relating to the Note and the other
Purchased Items in the possession or under the control of the Seller, the
Guarantor, the Pledgor and any Affiliates of the foregoing.  The Seller, the Guarantor and the Pledgor
also shall make available to the Purchaser a knowledgeable financial or
accounting officer for the purpose of answering questions respecting the
Seller, the Guarantor and the Pledgor, the Note and the other Purchased Items
and the Seller’s, the Guarantor’s and the Pledgor’s books and records.  The Seller, the Guarantor and the Pledgor
shall also make available to the Purchaser any accountants or auditors of the
Seller, the Guarantor and the Pledgor to answer any questions or provide any
documents as the Purchaser may require. 
The Seller shall also cause NRFC Luxembourg and each servicer or trustee
with respect to the Note and the other Purchased Items to cooperate with the
Purchaser by permitting the Purchaser to conduct due diligence reviews of files
of NRFC Luxembourg and each such servicer or trustee relating to the Note and
the other Purchased Items to the extent such reviews are permitted under the
terms of the Asset Documents.  The
Purchaser, at its option, has the right at any time to conduct a partial or
complete due diligence review on some or all of the Note and the other
Purchased Items purchased in a Transaction, including, without limitation,
ordering new credit reports and new appraisals on the related Mortgaged
Properties and otherwise re—generating the information used to originate such
Note and the other Purchased Items.  The
Purchaser may underwrite such Note and the other Purchased Items itself or
engage a mutually agreed upon third party underwriter to perform such
underwriting.  The Seller agrees to
reasonably cooperate with the Purchaser and any third party underwriter in
connection with such underwriting, including, but not limited to, providing the
Purchaser and any third party underwriter with access to any and all documents,
records, agreements, instruments or information relating to such Note and the
other Purchased Items in the possession, or under the control, of the
Seller.  The Seller shall pay all out—of—pocket
costs and expenses incurred by Purchaser in connection with the Purchaser’s
activities pursuant to this Section 27.


 


30














 


Section 28.            Disclosure Relating to Certain
Federal Protections.


 


The parties acknowledge that they have been advised
that:


 


(a)           in
the case of a Transaction in which one of the parties is a broker or dealer
registered with the Securities and Exchange Commission (“SEC”) under Section 15
of the Securities Exchange Act of 1934, as amended, the provisions of the
Securities Investor Protection Act of 1970 (“SIPA”) will not provide
protection to the other parties with respect to the Transaction hereunder;


 


(b)           in
the case of a Transaction in which one of the parties is a government
securities broker or a government securities dealer registered with the SEC
under Section 15C of the Exchange Act, SIPA will not provide protection to
the other parties with respect to the Transaction hereunder;


 


(c)           in
the case of a Transaction in which one of the parties is a financial
institution, funds held by the financial institution pursuant to a Transaction
hereunder are not a deposit and therefore are not insured by the Federal
Deposit Insurance Corporation or the National Credit Union Share Insurance
Fund, as applicable; and


 


(d)           in
the case of a Transaction in which one of the parties is an “insured depository
institution” as that term is defined in Section 1813(c)(2) of Title 12
of the United States Code, funds held by the financial institution pursuant to
a Transaction hereunder are not a deposit and therefore are not insured by the
Federal Deposit Insurance Corporation, the Savings Association Insurance Fund
or the Bank Insurance Fund, as applicable.


 


Section 29.            Intent.


 


(a)           The
parties recognize that the Transaction is a “Repurchase Agreement” as
that term is defined in Section 101 of Title 11 of the Bankruptcy Code
(except insofar as the type of Note subject to such Transaction or the term of
such Transaction would render such definition inapplicable) and a “Securities
Contract” as that term is defined in Section 741 of Title 11 of
the United States Code (except insofar as the type of Note subject to such
Transaction would render such definition inapplicable).  It is understood that this Agreement
constitutes a “Master Netting Agreement” as that term is defined in Section 101
of Title 11 of the United State Code.


 


(b)           The parties agree and acknowledge that if a party hereto is
an “Insured Depository Institution,” as such term is defined in the
Federal Deposit Insurance Act, as amended (“FDIA”), then the Transaction
hereunder is a “Qualified Financial Contract,” as that term is defined
in FDIA and any rules, orders or policy statements thereunder (except insofar
as the type of Note subject to such Transaction would render such definition
inapplicable).


 


(c)           It
is understood that this Agreement constitutes a “Netting Contract” as
defined in and subject to Title IV of the Federal Deposit Insurance Corporation
Improvement Act of 1991 (“FDICIA”) and each payment entitlement and
payment obligation under the Transaction hereunder shall constitute a “Covered
Contractual Payment Entitlement” or “Covered Contractual Payment
Obligation”, respectively, as defined in and subject to FDICIA (except
insofar as one or both of the parties is not a “Financial Institution”
as that term is defined in FDICIA or regulations promulgated thereunder).


 


(d)           It
is understood that any party’s right to liquidate Purchased Items delivered to
it in connection with the Transaction hereunder or to exercise any other
remedies pursuant to Section 7 is a contractual right to liquidate
such Transaction as described in Sections 555 and 559 of Title 11 of the United
States Code, as amended.


 


31

















 


Section 30.            Judgment Currency.If, for the purposes of obtaining
judgment in any court, it is necessary to convert a sum due hereunder or any
other Repurchase Document in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Purchaser could purchase the first currency with such other
currency on the Business Day preceding that on which final judgment is
given.  The obligation of the Seller
shall, notwithstanding any judgment in a currency (the “Judgment Currency”)
other than that in which such sum is denominated in accordance with the
applicable provisions of this Agreement (the “Agreement Currency”), be
discharged only to the extent that on the Business Day following receipt by the
Purchaser of any sum adjudged to be so due in the Judgment Currency, the
Purchaser may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. 
If the amount of the Agreement Currency so purchased is less than the
sum originally due to the Purchaser from the Seller in the Agreement Currency,
the Seller agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Purchaser or the Person to whom such obligation was
owing against such loss.  If the amount
of the Agreement Currency so purchased is greater than the sum originally due
to the Purchaser in such currency, the Purchaser agrees to return the amount of
any excess to the Seller (or to any other Person who may be entitled thereto
under Applicable Law).


 


Section 30.            Service of Process.At all times while this Agreement is in
effect, the Seller shall maintain an agent for service of process in the United
States of America.  The Seller hereby
appoints Robert J. Grados, Esq., whose address is Paul Hastings
Janofsky & Walker LLP, 75 East 55th Street, New York, New York  10022, as its agent for service of process.  If for any reason the Seller’s process agent
is unable to act as such, the Seller will promptly notify the Purchaser and
within thirty (30) days will appoint a substitute process agent acceptable
to the Purchaser.  If no such substitute
process agent is appointed, service on the original process agent will continue
to constitute good service of process. 
Nothing in this Agreement will affect the right of the Purchaser to
serve process in any other manner permitted by Applicable Law.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


32

















 


IN
WITNESS WHEREOF, the Seller and the Purchaser have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
above written.


 


 


	
   

  	
   

  	
  Executed
  as a deed by:

  
	
   

  	
   

  	
   

  
	
  THE
  SELLER:

  	
   

  	
  NRF–REINDEER
  LTD.,

  
	
   

  	
   

  	
  a
  Cayman Islands exempted limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Daniel R. Gilbert

  
	
   

  	
   

  	
  Name:

  	
  Daniel
  R. Gilbert

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  In
  the presence of:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NRF–Reindeer
  Ltd.

  
	
   

  	
   

  	
  c/o
  Walkers SPV Ltd

  
	
   

  	
   

  	
  Walker
  House, 87 Mary Street

  
	
   

  	
   

  	
  George
  Town, Grand Cayman KY1–9001

  
	
   

  	
   

  	
  Cayman
  Islands

  
	
   

  	
   

  	
  Attention:

  	
  Directors

  
	
   

  	
   

  	
  Facsimile
  No.:

  	
  (345)
  949–7886

  
	
   

  	
   

  	
  Confirmation
  No.:

  	
  (345)
  949–0100

  
					



 


[Signatures Continued on the
Following Page]


 


S-1

















 


	
  THE
  PURCHASER:

  	
   

  	
  WACHOVIA
  BANK, N.A. (LONDON BRANCH)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Joseph F. Cannon

  
	
   

  	
   

  	
  Name:

  	
  Joseph
  F. Cannon

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Address
  for Notices:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wachovia
  Bank, N.A. (London Branch)

  
	
   

  	
   

  	
  c/o
  Wachovia Bank, National Association

  
	
   

  	
   

  	
  One
  Wachovia Center, Mail Code: NC0166

  
	
   

  	
   

  	
  301
  South College Street

  
	
   

  	
   

  	
  Charlotte,
  North Carolina 28288

  
	
   

  	
   

  	
  Attention:

  	
  Joseph
  Cannon

  
	
   

  	
   

  	
  Facsimile
  No.:

  	
  (704)
  715–0066

  
	
   

  	
   

  	
  Confirmation
  No.:

  	
  (704)
  383–2324

  
					



 


S-2

















 


	
  Acknowledged
  by:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  NRFC
  LUXEMBOURG HOLDINGS I S.À R.L.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Alain Heinz

  	
   

  	
   

  
	
  Name:

  	
  Alain
  Heinz

  	
   

  	
   

  
	
  Title:

  	
  Manager

  	
   

  	
   

  



 


S-3

















 


EXHIBIT A


 


DEFINED TERMS


 


Section 1.              Defined Terms.


 


“Account
Control Agreement”:  An account
control agreement in the form of Exhibit G attached hereto duly
executed by the parties thereto.


 


“Additional
Amounts”:  Defined in Subsection 26(a) of
this Agreement.


 


“Additional
Asset Documents”:  Defined in Subsection 2(g) of
this Agreement.


 


“Advance
Rate”:  100%.


 


“Affiliate”:  With respect to a Person, means any other
Person that, directly or indirectly, controls, is controlled by or is under
common control with such Person, or is a director of such Person.  For purposes of this definition, “control”
(including the terms “controlling,” “controlled by” and “under common control
with”) when used with respect to any specified Person means the possession,
direct or indirect, of the power to vote 20% or more of the voting securities
of such Person or to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.


 


“Aggregate
Unpaids”:  At any time, an amount
equal to the sum of the aggregate Purchase Price outstanding for the
Transaction, the aggregate Price Differential outstanding, outstanding interest
at the Default Rate, if any, Margin Deficits, if any, Breakage Costs, if any,
Costs, if any, Increased Costs, if any, Taxes, if any, Additional Amounts, if
any, expenses payable under Subsection 8(b) and all other
amounts owed by the Seller to the Purchaser or by the Seller or any other
Person under this Agreement, the Repurchase Documents and any other document or
agreement delivered in connection with the transactions contemplated by this
Agreement or the Repurchase Documents (whether due or accrued).


 


“Agreement”:  Defined in the Preamble of this
Agreement.


 


“Agreement
Currency”:  Defined in Section 30
of this Agreement.


 


“Applicable
Law”:  For any Person or Property of
such Person, all existing and future applicable laws, rules, regulations
(including temporary and final income tax regulations), statutes, treaties,
codes, ordinances, permits, certificates, orders and licenses of and
interpretations by any Governmental Authority (including, without limitation,
usury laws, the Federal Truth in Lending Act, as amended from time to time, and
Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System), and applicable judgments, decrees, injunctions, writs,
awards or orders of any court, arbitrator or other administrative, judicial or
quasi—judicial tribunal or agency of competent jurisdiction (whether foreign or
domestic).


 


“Approved
Servicing Fee”:  25 basis points
per annum based on the aggregate Repurchase Price outstanding.


 


“Asset
Documents”:  The documents
evidencing, governing, relating to, affecting or securing the Note and the other
Purchased Items contained or required to be contained in the Asset File
(including all 


 


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amendments
and modifications thereto), as such Asset Documents are amended, modified,
restated, replaced, waived, substituted, supplemented or extended from time to
time.


 


“Asset
File”:  Defined in Subsection 2(b) of
this Agreement.


 


“Asset
Value”:  As of any date of
determination for the Note, the lesser of (a) the product of the Book
Value of the Note times the Advance Rate and (b) the product of the
Market Value of the Note times the Advance Rate; provided, however,
the Asset Value of the Note may be reduced (including in the Purchaser’s
discretion to zero (0)) (A) in respect of which there is a breach of
any representation or warranty set forth in Subsection 5(w) (assuming
each representation and warranty is made as of the date the Asset Value is
determined), (B) any statement made or information provided by the Seller
to the Purchaser with respect to the Note, the other Purchased Items or the
Loan is materially untrue in any respect, (C) any representation or
warranty regarding the Note, the other Purchased Items or the Loan contained in
the Asset File is materially untrue in any respect or (D) in respect of
which the complete Asset File has not been delivered to the Purchaser within
the time period required by this Agreement.


 


“Assignment”:  An Assignment in the form of Exhibit E
attached hereto and executed by the Seller in blank.


 


“Bailee
Agreement”:  Defined in Subsection 2(c)(ii) of
this Agreement.


 


“Bankruptcy
Code”:  The United States Bankruptcy
Reform Act of 1978 (11 U.S.C. § 101, et seq.), as
amended from time to time.


 


“Base
Rate”:  On any date, a fluctuating
rate per annum equal to (a) the lower of (i) the Prime Rate or (ii) the
Federal Funds Rate, plus (b) 1.0%.


 


“Benefit
Plan”:  Any employee benefit plan as
defined in Section 3(3) of ERISA in respect of which the Seller or
any ERISA Affiliate of the Seller is, or at any time during the immediately
preceding six (6) years was, an “employer” as defined in Section 3(5) of
ERISA.


 


“Book
Value”:  With respect to the Note at
any time, an amount, as certified by the Seller, equal to the lesser of (a) face
or par value and (b) the price that such Seller initially paid or advanced
for or in respect of the Note, as such Book Value may be marked down by the
Seller from time to time, including, as applicable, any loss/price adjustments,
less an amount equal to the sum of all principal payments or paydowns
paid and realized losses recognized relating to the Note; provided, however,
any such markdowns or adjustments must be made in good faith and shall be
disclosed in writing to the Purchaser.


 


“Breakage Costs”: Any amount or amounts as
shall compensate the Purchaser for any loss, cost or expense incurred by the
Purchaser (as determined by the Purchaser in its discretion) as a result of a
prepayment by the Seller, the Guarantor or the Pledgor of all or any portion of
any Repurchase Price and any losses, costs and/or expenses that the Purchaser
may sustain or incur arising from the reemployment of funds obtained by the
Purchaser hereunder or from fees payable to terminate the deposits from which
such funds were obtained.


 


“Borrower”:  Defined in the Mezzanine Finance Documents.


 


“Business Day”:  Any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under the
Applicable Laws of, or are in fact closed in, the state where the Purchaser’s
office is located and, if such day relates to any interest rate settings, any
fundings, disbursements, 


 


A-2

















 


settlements and payments
in Euro, or any other dealings in Euro to be carried out pursuant to this
Agreement, a Target Day.


 


“Capital
Lease Obligations”:  For any Person,
all obligations of such Person to pay rent or other amounts under a lease of
(or other agreement conveying the right to use) Property to the extent such
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP, and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.


 


“Capital
Stock”:  With respect to any Person,
any share of capital stock of (or other ownership or profit interests in) such
Person, any warrant, option or other right for the purchase or other
acquisition from such Person of any share of capital stock of (or other
ownership or profit interests in) such Person, any security convertible into or
exchangeable for any share of capital stock of (or other ownership or profit
interests in) such Person or warrant, right or option for the purchase or other
acquisition from such Person of such shares (or such other interests), and any
other ownership or profit interest in such Person (including, without
limitation, partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such share, warrant, option, right or other
interest is authorized or otherwise existing on any date of determination.


 


“Closing”:  Defined in Section 3 of this
Agreement.


 


“Closing
Date”:  Defined in Section 1
of this Agreement.


 


“Code”:  The Internal Revenue Code of 1986, as amended
from time to time.


 


“Collection
Account”:  The collection account
identified on Exhibit D attached hereto which is subject to the
Account Control Agreement.  The Seller
shall not have any rights of withdraw from or any rights in or to the
Collection Account, except to the limited extent expressly provided in Subsection 4(f) with
regard to the Seller’s right under certain circumstances to receive payments
from the Collection Account.


 


“Contractual
Obligation”:  With respect to any
Person, any provision of any securities issued by such Person or any indenture,
mortgage, deed of trust, contract, undertaking, agreement, instrument or other
document to which such Person is a party or by which it or any of its Property
is bound or is subject.


 


“Cost”:  Defined in Subsection 8(a) of
this Agreement.


 


“Debt”:  Defined in Subsection 7(a) of
this Agreement.


 


“Default
Rate”: An annual rate of interest equal to (a) the lesser of (i) the
highest rate allowable by Applicable Law and (ii) the Pricing Rate plus
(b) 500 basis points.


 


“Derivatives
Contract”:  Any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, note or note price or note index swaps
or options or forward note or forward note price or forward note index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross—currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether
or not any such transaction is governed by or subject to any master
agreement.  Not in limitation of the
foregoing, the term “Derivatives Contract” includes any and all transactions of
any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master 


 


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agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement, including any such obligations or liabilities under any such master
agreement.


 


“Derivatives
Termination Value”:  Means, in
respect of any one or more Derivatives Contracts, after taking into account the
effect of any legally enforceable netting agreement relating to such
Derivatives Contracts, (a) for any date on or after the date such
Derivatives Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a), the amount(s) determined
as the mark—to—market value(s) for such Derivatives Contracts, as
determined based upon one or more mid—market or other readily available
quotations provided by any recognized dealer in such Derivatives Contracts
(which may include the Purchaser).


 


“EMU Legislation”
The legislative measures of the European Council for the introduction of,
changeover to or operation of a single or unified European currency.


 


“Environmental
Laws”:  Any and all Applicable Laws
and all other foreign, federal, state and local laws, statutes, ordinances,
rules, regulations, permits, licenses, approvals, interpretations and orders of
courts or Governmental Authorities, relating to the protection of human health
or the environment, including, but not limited to, requirements pertaining to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transportation, handling, reporting, licensing, permitting, investigation or
remediation of hazardous materials. 
Environmental Laws include, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C.
§ 9601 et seq.), the Hazardous Material Transportation Act
(49 U.S.C. § 331 et seq.), the Resource Conservation and
Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean
Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. § 2601 et seq.), the Safe Drinking
Water Act (42 U.S.C. § 300, et seq.), the Environmental
Protection Agency’s regulations relating to underground storage tanks
(40 C.F.R. Parts 280 and 281), and the Occupational Safety and Health
Act (29 U.S.C. § 651 et seq.), and the rules and
regulations thereunder, each as amended, modified, waived, supplemented,
extended, restated or replaced from time to time.


 


“ERISA”:  The Employee Retirement Income Security Act
of 1974, as the same are amended from time to time, and the regulations
promulgated and rulings issued thereunder, as the same are amended from time to
time.


 


“ERISA
Affiliate”:  (a) Any corporation
that is a member of the same controlled group of corporations (within the
meaning of Section 414(b) of the Code) as the Seller, the Guarantor
or the Pledgor, (b) a trade or business (whether or not incorporated)
under common control (within the meaning of Section 414(c) of the
Code) with the Seller, the Guarantor or the Pledgor, or (c) a member of
the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Seller, the Guarantor, the Pledgor, any corporation described
in clause (a) above or any trade or business described in clause (b) above.


 


“Euro” and “EUR”:  The lawful currency of the Participating
Member States introduced in accordance with the EMU Legislation.


 


“Eurocurrency Rate”  For any Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Purchaser from time to time) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period, for deposits in the Euros (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time
for any reason, then the “Eurocurrency Rate” for 


 


A-4

















 


such Interest Period
shall be the rate per annum determined by the Purchaser to be the rate at which
deposits in Euros for delivery on the first day of such Interest Period in Same
Day Funds in the approximate amount of the Purchase Price of the Transaction,
continued or converted by the Purchaser and with a term equivalent to such
Interest Period would be offered by Purchaser’s London Branch (or other
Purchaser’s branch or Affiliate) to major banks in the London or other offshore
interbank market for such currency at their request at approximately 11:00 a.m.
(London time) two Business Days prior to the commencement of such Interest
Period.


 


“Eurocurrency
Disruption Event”:  If the Purchaser or any assignee, pledgor
or participant determines that (i) any Applicable Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any such Person or its applicable lending office to make, maintain or fund
in the Eurocurrency Rate, or to determine or charge interest rates based upon
the Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of any such Person to purchase or sell, or to
take deposits of Euros in the applicable interbank market, or (ii) for any
reason in connection with any request for a Eurocurrency Rate funding, or a
conversion to or continuation thereof that (A) deposits are not being
offered to banks in the applicable offshore interbank market for Euros for the
applicable amount and Interest Period of such funding, (B) adequate and
reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect
to a proposed Eurocurrency Rate funding, or (C) the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate funding does not adequately and fairly
reflect the cost to any such Persons of funding such Eurocurrency Rate funding.


 


“Event
of Default”:  Defined in Subsection 4(b) of
this Agreement.


 


“Exchange
Act”:  The Securities Exchange Act of
1934, as amended from time to time.


 


“FDIA”:  Defined in Subsection 23(b) of
this Agreement.


 


“FDICIA”:  Defined in Subsection 23(c) of
this Agreement.


 


“Federal
Funds Rate”:  For any period, a
fluctuating interest rate per annum equal for each day during such period to
the weighted average of the overnight federal funds rates as in Federal Reserve
Board Statistical Release H.15(519) or any successor or substitute
publication selected by the Purchaser (or, if such day is not a Business Day,
for the next succeeding Business Day), or, if, for any reason, such rate is not
available on any day, the rate determined, in the sole opinion of the
Purchaser, to be the rate at which overnight federal funds are being offered in
the national federal funds market at 9:00 a.m.


 


“Fitch”:  Fitch Ratings, Inc. and any successor
thereto


 


“Fixed
Repurchase Date”:  March 27,
2008.


 


“GAAP”:  Generally accepted accounting principles as
in effect from time to time in the United States.


 


“Governing
Documents”:  As to any Person, the
articles or certificate of incorporation or formation, by—laws, limited
liability company agreement, general partnership agreement, limited partnership
agreement, trust agreement, joint venture agreement or other applicable
organizational or governing documents of such Person.


 


“Governmental
Authority”:  Any nation or
government, any state or other political subdivision thereof, any central bank
(or similar monetary or regulatory authority) thereof, any body or entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, any


 


A-5














 


court
or arbitrator having jurisdiction over such Person, any of its Subsidiaries or
any of its Properties, and any accounting board or authority (whether or not a
part of government) that is responsible for the establishment or interpretation
of national or international accounting principles, in each case whether
foreign or domestic.


 


“Guaranty
Agreement:  That certain Limited
Guaranty Agreement, dated the date hereof, executed by the Guarantor in favor
of the Purchaser, as amended, modified, restated, replaced, waived,
substituted, supplemented or extended from time to time.


 


“Guarantor”:  NorthStar Realty Finance Corp. a Maryland
corporation, together with its successors and permitted assigns.


 


“Income”:  With respect to the Note and the related
Purchased Items, at any time, all of the following:  collections, prepayments, recoveries,
insurance and condemnation proceeds and all other payments or proceeds of any
kind or nature whatsoever on or in respect of the Note and the related
Purchased Items, including, without limitation, any principal thereof then
payable and all interest, fees, prepayment fees or premiums, exit fees,
extension fees, default interest, late fees, late charges, dividends, gains,
receipts, allocations, profits, payments in kind, returns or repayment of
contributions or other distributions payable thereon and amount received from
any related Derivatives Contracts (if any) supporting such Note or the related
Purchased Items; provided, however, provided there is no Event of
Default, the Seller may net the Approved Servicing Fee from Income.


 


“Increased
Costs”:  Amounts required to be paid
pursuant to Section 25 of this Agreement.


 


“Indebtedness”:  Means, with respect to any Person and its
Subsidiaries determined on a consolidated basis, at the time of computation
thereof, all of the following (without duplication):  (a) all obligations of such Person in
respect of money borrowed (including without limitation principal, interest,
assumption fees, prepayment fees, contingent interest and other monetary
obligations whether choate or inchoate); (b) all obligations of such
Person, whether or not for money borrowed (i) represented by notes
payable, letters of credit, or drafts accepted, in each case representing
extensions of credit, (ii) evidenced by notes, debentures, notes or
similar instruments, or (iii) constituting purchase money indebtedness,
conditional sales contracts, title retention debt instruments or other similar
instruments, upon which interest charges are customarily paid or that are
issued or assumed as full or partial payment for property or services rendered;
(c) Capital Lease Obligations of such Person; (d) all reimbursement
obligations of such Person under any letters of credit or acceptances (whether
or not the same have been presented for payment); (e) all Off—Balance
Sheet Obligations of such Person; (f) all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Mandatory Redeemable Stock issued by such Person or any other Person
(inclusive of forward equity contracts), valued at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid dividends; (g) as
applicable, all obligations of such Person (but not the obligation of others)
in respect of any keep well arrangements, credit enhancements, contingent or
future funding obligations under any participation or any obligation senior to
the participation, unfunded interest reserve amount under any participation or
any obligation that is senior to the participation, purchase obligation,
repurchase obligation, takeout commitment or forward equity commitment, in each
case evidenced by a binding agreement (excluding any such obligation to the
extent the obligation can be satisfied by the issuance of Capital Stock (other
than Mandatory Redeemable Stock)); (h) net obligations under any
Derivative Contract not entered into as a hedge against existing Indebtedness,
in an amount equal to the Derivatives Termination Value thereof; (i) all
Indebtedness of other Persons which such Person has guaranteed or is otherwise
recourse to such Person (except for guaranties of customary exceptions for
fraud, misapplication of funds, environmental indemnities and other similar
exceptions to recourse liability (but not exceptions relating to bankruptcy,
insolvency, receivership or other similar events)); (j) all Indebtedness
of another Person secured by (or for which the 


 


A-6

















 


holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien (other than certain Permitted Liens) on property or assets
owned by such Person, even though such Person has not assumed or become liable
for the payment of such Indebtedness or other payment obligation; provided,
however, if such Person has not assumed or become liable for the payment
of such Indebtedness, then for the purposes of this definition the amount of
such Indebtedness shall not exceed the market value of the property subject to
such Lien).


 


“Indemnified
Party”:  Defined in Subsection 8(a) of
this Agreement.


 


“Independent
Director”:  A natural Person who (a) is
not at the time of initial appointment as Independent Director, and may not
have been at any time during the five (5) years preceding such
initial appointment or at any time while serving as Independent Director, (i) a
stockholder, partner, member or direct or indirect legal or beneficial owner of
the Seller, the Guarantor or any Affiliate of the foregoing; (ii) a
contractor, creditor, customer, supplier, director (with the exception of
serving as the Independent Director of the Seller), officer, employee,
attorney, manager or other Person who derives any of its purchases or revenues
from its activities with the Seller, the Guarantor or any Affiliate of the
foregoing; (iii) a natural Person who controls (directly or indirectly or
otherwise) the Seller, the Guarantor or any Affiliate of the foregoing or who
controls or is under common control with any Person that would be excluded from
serving as an Independent Director under (i) or (ii),
above; or (iv) a member of the immediate family of a natural Person
excluded from serving as an Independent Director under (i) or (ii) above
and (b) otherwise satisfies the then current requirements of the Rating
Agencies.  A Person who is an employee of
a nationally recognized organization that supplies independent directors and
who otherwise satisfies the criteria in clause (a) but for the
fact that such organization receives payment from the Seller or the Guarantor
for providing such independent director shall not be disqualified from serving
as an Independent Director hereunder.


 


“Insolvency
Event”:  With respect to a specified
Person, (a) the filing of a decree or order for relief by a court having jurisdiction
in the premises in respect of such Person or any substantial part of its
Property in an involuntary case under any applicable Insolvency Law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any
substantial part of its Property, or ordering the winding—up or liquidation of
such Person’s affairs, and such decree or order shall remain unstayed and in
effect for a period of sixty (60) consecutive days; or (b) the
commencement by such Person of a voluntary case under any applicable Insolvency
Law now or hereafter in  effect, or the
consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its Property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.


 


“Insolvency
Laws”:  The Bankruptcy Code and all
other applicable foreign or domestic liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments or similar debtor relief laws from time to time in effect affecting
the rights of creditors generally.


 


“Insolvency
Proceeding”:  Any case, action or
proceeding before any court or other Governmental Authority relating to any
Insolvency Event.


 


“Intercreditor
Agreement”:  That certain mezzanine
intercreditor agreement, dated September 6, 2006, among Coöperative
Centrate Riaffeisen — Boerenleenbank B.A. London Branch, Goldman Sachs Credit 


 


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Partners,
L.P., ABN AMRO Transfers Limited and Goldman Sachs International, as amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from time to time.


 


“Interest Period”
The period commencing on the Closing Date and ending on the date three months
thereafter; provided, however, (i) any Interest Period that
would otherwise end on a day that is not a Business Day shall be extended to
the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day; (ii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such
Interest Period; and (iii) no Interest Period shall extend beyond the
Fixed Repurchase Date.


 


“Judgment
Currency”:  Defined in Section 30
of this Agreement.


 


“Lien”:  Any mortgage, lien, pledge, charge, right,
claim, security interest or encumbrance of any kind of or on any Person’s
assets or properties in favor of any other Person (including any UCC financing
statement or any similar instrument filed against such Person’s assets or
properties).


 


“Loan”:  Each of the loans evidenced by the Senior
Finance Documents and the Mezzanine Finance Documents.


 


“Mandatory
Redeemable Stock”:  Means, with
respect to any Person and any
Subsidiary thereof, any Capital Stock of such Person which by the terms
of such Capital Stock (or by the terms of any security into which it is convertible
or for which it is exchangeable or exercisable), upon the happening of any
event or otherwise (a) matures or is required to be redeemed, pursuant to
a sinking fund obligation or otherwise (other than any Capital Stock to the
extent redeemable in exchange for common stock or other equivalent common
Capital Stock), (b) is convertible into or exchangeable or exercisable for
Indebtedness or Mandatory Redeemable Stock, or (c) is redeemable at the
option of the holder thereof, in whole or in part (other than any Capital Stock
which is redeemable solely in exchange for common stock or other equivalent
common Capital Stock); in each case, on or prior to the maturity date of the
Agreement.


 


“Margin
Deficit”:  Defined in Subsection 4(i) of
this Agreement.


 


“Margin
Deficit Notice”:  Defined in Subsection 4(i) of
this Agreement.


 


“Market
Value”:  With respect to the Note at
any time, the price at which such Note could readily be sold, as determined by
the Purchaser in its discretion based on such sources and information as the
Purchaser may determine to rely on its discretion (which value may be
determined to be zero), as such Market Value may be adjusted by the Purchaser
as the Purchaser determines in its discretion.


 


“Material
Adverse Effect”:  A material adverse
effect on (a) the business, operations, financial condition of the Seller,
the Guarantor, the Pledgor, NRFC Luxembourg or any of their Affiliates of the
foregoing, (b) the ability of the Seller, the Guarantor, the Pledgor or
NRFC Luxembourg to perform its obligations under any of the Repurchase
Documents or Asset Documents to which it is a party, (c) the validity or
enforceability of any of the Repurchase Documents or the Asset Documents, (d) the
rights and remedies of the Purchaser under any of the Repurchase Documents or
the Asset Documents, (e) the timely payment of any amounts payable under
the Repurchase Documents or the Asset Documents, or (f) the Market Value
or Book Value of the Note.


 


“Materials
of Environmental Concern”:  Any mold,
petroleum (including, without limitation, crude oil or any fraction thereof) or
petroleum products (including, without limitation, gasoline), or any hazardous
or 


 


A-8

















 


toxic
substances, materials or wastes, defined as such in or regulated under any
Environmental Law, including, without limitation, asbestos, polychlorinated
biphenyls and urea—formaldehyde insulation.


 


“Mezzanine
Finance Documents”:  As defined the
Intercreditor Agreement.


 


“Moody’s”:  Moody’s Investors Service, Inc., and any
successor thereto.


 


“Mortgaged
Property”:  Any Property securing,
directly or indirectly, the Note, the other Purchased Items and/or the Loan.


 


“Multiemployer
Plan”:  A “multiemployer plan” as
defined in Section 4001(a)(3) of ERISA that is or was at any time
during the current year or the immediately preceding five (5) years
contributed to by the Seller or any ERISA Affiliate on behalf of its employees.


 


“NRFC Luxembourg”:  NRFC Luxembourg
Holdings I S.à r.l., together with
its successors and assigns.


 


“Note”:  Defined in the Recitals of this
Agreement.


 


“Obligor”:  Individually and collectively, as the context
may require, the obligor or obligors under the Note or any Purchased Items,
including, but not limited to, any guarantor thereof, the Borrowers or obligors
under the Loan, including any guarantor thereof, and any Person that has not
signed any debt instrument but owns an interest in the related Mortgaged
Property, which interest has been encumbered to secure any of the foregoing.


 


“Off—Balance Sheet Obligations”:  With respect to any Person and its
Subsidiaries determined on a consolidated basis as of any date of determination
thereof, without duplication and to the extent not included as a liability on
the consolidated balance sheet of such Person and its Subsidiaries in accordance with
GAAP:  (a) the monetary obligations
under any financing lease or so—called “synthetic,” tax retention or off—balance
sheet lease transaction which, upon the application of any Insolvency Laws to
such Person or any of its Subsidiaries, would be characterized as indebtedness;
(b) the monetary obligations under any sale and leaseback transaction
which does not create a liability on the consolidated balance sheet of such
Person and its Subsidiaries; or (c) any other monetary obligation arising
with respect to any other transaction which (i) is characterized as
indebtedness for tax purposes but not for accounting purposes in accordance
with GAAP or (ii) is the functional equivalent of or takes the place of borrowing
but which does not constitute a liability on the consolidated balance sheet of
such Person and its Subsidiaries (for purposes of this clause (c),
any transaction structured to provide tax deductibility as interest expense of
any dividend, coupon or other periodic payment will be deemed to be the
functional equivalent of a borrowing).


 


“Opinion
of Counsel”:  A written opinion of
counsel, which opinion and which counsel are acceptable to the Purchaser in its
reasonable discretion.


 


“Participating Member
State”:  Each state so described in
any EMU Legislation.


 


“Participation”:  The participation interest held by NRFC
Luxembourg under the Participation Agreement and the Participation Certificate.


 


“Participation
Agreement”:  Collectively, the
Instrument of Assumption, dated on or about March 29, 2007, executed by
NRFC Luxembourg and the letter agreement among Goldman Sachs Credit Partners,
L.P. and NRFC Luxembourg, dated on or about March 29, 2007, as the
foregoing are amended, modified, restated, replaced, waived, substituted,
supplemented or extended from time to time.


 


A-9

















 


“Participation
Certificate”:  The transfer
certificate, dated on or about March 29, 2007, executed by NRFC
Luxembourg, Goldman Sachs Credit Partners, L.P. and Capmark Services Ireland
Limited, issued in connection with the Participation Agreement and evidencing
the Participation, including any original power of attorney related to the
execution thereof, together with any and all intervening endorsements thereon,
endorsed, in blank, on its face or by allonge attached thereto (without
recourse, representation or warranty, express or implied), as amended,
modified, restated, replaced, waived, substituted, supplemented or extended
from time to time.


 


“Participation
Pledge”:  The Luxembourg Pledge over
Participation Interest Agreement, dated as of March 29, 2007, executed by
NRFC Luxembourg in favor of the Seller.


 


“Payment
Date”:  The 1st day of each calendar
quarter, or, if such day is not a Business Day, the next Business Day.


 


“PBGC”:  The Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.


 


“Pension
Plan”:  Defined in Subsection 5(r) of
this Agreement.


 


“Periodic
Advance Repurchase Payment”:  Defined
in Subsection 4(e) of this Agreement.


 


“Permitted
Liens”:  Any of the following as to
which no enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced or threatened: 
(a) Liens for federal, state, municipal or other local or other
Governmental Authority Taxes if such Taxes shall not at the time be due and
payable, (b) Liens imposed by law, such as materialmen’s, mechanics’,
carriers’, workmen’s and repairmen’s Liens and other similar Liens, arising in
the ordinary course of business securing obligations that are not overdue for a
period of more than thirty (30) days, and (c) Liens granted pursuant
to or by the Repurchase Documents.


 


“Person”:  An individual, partnership, corporation
(including a business trust), limited liability  company,
joint stock company, trust, unincorporated association, sole proprietorship,
joint  venture, government (or any agency or
political subdivision thereof) or any other type or form of entity.


 


“Plan”:  An employee benefit or other plan established
or maintained by the Seller, the Guarantor, the Pledgor or any ERISA Affiliate
and covered by Title IV of ERISA, other than a Multiemployer Plan.


 


“Plan
Party”:  Defined in Subsection 24(a) of
this Agreement.


 


“Pledge
and Security Agreement”: 
Collectively, (a) the Pledge and Security Agreement, dated as of
even date herewith, executed by the Pledgor in favor of the Purchaser with
respect to all of the Pledgor’s Capital Stock in the Seller and the related
collateral pledged thereunder and (b) the Pledge Over Shares Agreement,
dated as of March 29, 2007, executed by the Pledgor in favor of the
Purchaser with respect to all of the Pledgor’s Capital Stock in NRFC Luxembourg
and the related collateral pledged thereunder.


 


“Pledge
Notices”:  Defined in Subsection
3(m).


 


“Pledged
Collateral”:  The Capital Stock and
related collateral pledged to the Purchaser under the Pledge and Security
Agreements.


 


A-10

















 


“Pledgor”:  NRFC Sub—REIT Corp., a Maryland corporation,
together with its successors and permitted assigns.


 


“Price
Differential”:  For each Interest
Period and the Transaction outstanding, the sum of the products (for each day
during such Interest Period) of:


 


	
  PR x PP x

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
  D

  	
   

  



 


	
  where:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PR

  	
  =

  	
  the Pricing Rate
  applicable on such day;

  
	
   

  	
   

  	
  PP

  	
  =

  	
  the Purchase Price for
  such Transaction on such day; and

  
	
   

  	
   

  	
  D

  	
  =

  	
  360;

  



 


provided, however,
that (i) no provision of this Agreement shall require the payment or
permit the collection of any Price Differential in excess of the maximum
permitted by Applicable Law and (ii) the Price Differential shall not be
considered paid by any distribution if at any time such distribution is
rescinded or must otherwise be returned for any reason.


 


“Pricing
Rate”:  With respect to the Note, on
any date of determination, a rate per annum equal to the sum of (a) the
Rate plus (b) 150 basis points.


 


“Prime
Rate”:  The rate announced by the
Purchaser from time to time as its prime rate in the United States, such rate
to change as and when such designated rate changes.  The  Prime Rate is
not intended to be the lowest rate of interest charged by the Purchaser in
connection with extensions of credit to debtors.


 


“Property”:  Any right or interest in or to property of
any kind whatsoever, whether real, personal or mixed, and whether tangible or
intangible.


 


“Purchase
Price”:  The product of (x) the
Advance Rate times (y) the lesser of (i) the Book Value of the Note
and (ii) the Market Value of such Note.


 


“Purchased
Items”:  Collectively, all of the
Seller’s right, title and interest in and to each of the following items or
types of property, whether now owned or hereafter acquired, now existing or
hereafter created and wherever located: 
the Note, all Income, all Asset Documents and Asset Files, including,
without limitation, all participation certificates, promissory notes and all
security and loan agreements relating to the Note and the other Purchased
Items, all Property and collateral pledged, securing or otherwise relating to
such Note and the other Purchased Items or pledged to the Seller in connection
with the Note, including, without limitation, the Participation, the
Participation Certificate, the Participation Agreement and other collateral
pledged to the Seller under the Participation Pledge, together with all files,
documents, instruments, surveys, certificates, correspondence, appraisals,
computer programs, computer storage media, accounting records and other books
and records relating to the Note and the other Purchased Items, all mortgage
guaranties and insurance (issued by governmental agencies or otherwise) and any
mortgage insurance certificate or other document evidencing such mortgage
guaranties or insurance relating to the Note or the other Purchased Items, all servicing
fees to which the Seller is entitled, all servicing and other rights relating
to the Note and the other Purchased Items, all Additional Asset Documents, all
servicing agreements, servicing records, servicing files and servicer accounts
established pursuant to any servicing agreement, pooling and servicing
agreement, trust agreement, indenture or otherwise and all amounts on deposit
therein from time to time related to the Note and the other Purchased Items,
all rights of the Seller under any servicing agreement, pooling and servicing
agreements, trust, indenture or security agreement relating to the Note and the
other Purchased Items, all 


 


A-11

















 


other
agreements or contracts relating to, constituting, or otherwise governing, any
or all of the foregoing to the extent they relate to the Note or the Purchased
Items, including the right to receive principal and interest payments and any
related fees, breakage fees, late fees and penalties with respect to the Note
and the other Purchased Items and the right to enforce such payments, all
insurance policies, certificates of insurance and the rights to any insurance
proceeds, the Collection Account and all monies, cash, deposits, securities or
investment property from time to time on deposit in the Collection Account, all
of the Seller’s rights to any collection account, escrow account, collateral
account or lock—box account related to the Note and the other Purchased Items,
including all moneys, cash, deposits, securities or investment property from
time to time on deposit therein, rights of the Seller under any letter of
credit, guarantee or other credit support or enhancement related to the Note or
the Purchased Items, any Derivatives Contracts relating to the Note, including
all payments due to the Seller, the Guarantor, the Pledgor or any Affiliates of
the foregoing thereunder, all “general intangibles”, “accounts”, “chattel paper”,
“deposit accounts”, “securities accounts”, “instruments”, “securities”, “financial
assets”, “uncertificated securities”, “securities entitlements” and “investment
property” as defined in the Uniform Commercial Code as in effect from time to
time relating to or constituting any and all of the foregoing, and any and all
replacements, substitutions, conversions, distributions on or proceeds of any
and all of the foregoing.


 


“Purchaser”:  Defined in the Preamble of this
Agreement.


 


“Purchaser’s
Account”:  The account of the
Purchaser identified on Exhibit D attached hereto.  The Seller shall not have any rights or
interests in or rights of withdrawal from the Purchaser’s Account.


 


“Qualified
Transferee”:  Defined in the
Intercreditor Agreement.


 


“Rate”:  For any Interest Period and for the
Transaction outstanding and for each day during such Interest Period, the rate
per annum equal to the Eurocurrency Rate; provided, however, (i) the
Rate for any Interest Period shall be the Base Rate if a Eurocurrency
Disruption Event occurs and (ii) the Rate for any Interest Period after an
Event of Default occurs shall be the Default Rate.


 


“Rating Agency”:  Each of S&P, Moody’s, Fitch and any other
recognized statistical rating agency that has been requested to issue a rating
in connection with the matter at issue, including successors of the foregoing.


 


“Regulations
T, U and X”:  Regulations T, U and X
of the Board of Governors of the Federal Reserve System (or any successor), as
the same may be amended from time to time.


 


“Release
Letter”:  Defined in Subsection 3(j) of
this Agreement.


 


“Reportable
Event”:  Any of the events set forth
in Section 4043(c) of ERISA or a successor provision thereof, other
than those events as to which the notice requirement has been waived by
regulation.


 


“Repurchase
Date”:  The earliest of (i) the
Business Day specified by the Seller pursuant to Subsection 4(a), (ii) the
Business Day determined pursuant to Subsection 4(b) and (iii) the
date determined pursuant to Subsection 4(c).


 


“Repurchase
Documents”:  This Agreement, each
Pledge and Security Agreement, the Guaranty Agreement, the Account Control
Agreement, each Assignment, any UCC financing statements (and amendments
thereto) filed pursuant to the terms of this Agreement or any other Repurchase
Document and any additional document, certificate or agreement, the execution
of which is necessary or incidental to carrying out the terms of the foregoing
documents.


 


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“Repurchase
Obligations”:  The obligations,
liabilities and Indebtedness owed under and/or secured by the Wachovia
Repurchase Facility and the VFCC Repurchase Facility.


 


“Repurchase
Price”:  The price at which the Note
is to be transferred from Purchaser or its designee to the Seller on a
Repurchase Date, which price shall be in an amount equal to the sum of the
outstanding Purchase Price for such Transaction plus all accrued and unpaid
Price Differential with respect thereto.


 


“S&P”:  Standard & Poor’s, a division of The
McGraw Hill Companies, Inc., and any successor thereto.


 


“Same Day Funds”
Same day or other funds as may be determined by the Purchaser to be customary
in the place of disbursement or payment for the settlement of international
banking transactions in Euros.


 


“SEC”:  Defined in Subsection 22(a) of
this Agreement.


 


“Seller”:  Defined in the Preamble of this
Agreement.


 


“Seller’s
Account”:  The account of the Seller
identified in writing to the Purchaser.


 


“Senior
Finance Documents”:  As defined the
Mezzanine Finance Documents.


 


“Servicing
Standard”:  With respect to the Note
and the other Purchased Items, those servicing practices of prudent mortgage or
mezzanine lending institutions that service assets of the same type, size and
structure as the Note and the other Purchased Items in the jurisdiction where
the related Mortgaged Property is located, but in any event, (i) in
accordance with the terms of the Repurchase Documents, (ii) without
prejudice to the interests of the Purchaser, (iii) with a view to the
maximization of the recovery on the Note and other Purchased Items on a net
present value basis, and (iv) without regard to (A) any relationship
that the Seller, the Guarantor, the Pledgor and any Affiliate may have with the
related Obligors, mortgagor, the Seller or any other party to the Repurchase
Documents, the Asset Documents or any Affiliate thereof; (B) the right of
the Seller, the Guarantor, the Pledgor or any Affiliate to receive compensation
or other fees for its services rendered pursuant to this Agreement or any other
document; (C) the ownership, servicing or management by the Seller, the
Guarantor, the Pledgor or any Affiliate for others of any other mortgage or
mezzanine loans or mortgaged property; (D) any obligation of the Seller,
the Guarantor, the Pledgor or any Affiliate to repurchase or substitute the
Note; (E) any obligation of the Seller, the Guarantor, the Pledgor or any
Affiliate to cure a breach of a representation and warranty with respect to the
Note or any other Purchased Item; and (F) any debt the Seller, the
Guarantor, the Pledgor or any Affiliate has extended to any Obligor, mortgagor
or any Affiliate of such Obligor or mortgagor.


 


“Settlement
Agent”:  Defined in Subsection 2(c)(ii) of
this Agreement.


 


“SIPA”:  Defined in Subsection 22(a) of
this Agreement.


 


“Solvent”:  As to any Person at any time, having a state
of affairs such that all of the following conditions are met: (a) the fair
value of the Property of such Person is greater than the amount of such Person’s
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section 101(32)
of the Bankruptcy Code; (b) the present fair salable value of the Property
of such Person in an orderly liquidation of such Person is not less than the
amount that will be required to pay the probable liability of such Person on
its debts as they become absolute and matured; (c) such Person is able to
realize upon its Property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities 


 


A-13

















 


beyond
such Person’s ability to pay as such debts and liabilities mature; and (e) such
Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person’s Property would
constitute unreasonably small capital.


 


“Subsidiary”:  With respect to any Person, any corporation,
partnership, limited liability company 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,
limited liability company 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.


 


“VFCC”:  Defined in Subsection 4(b) of
this Agreement.


 


“VFCC
Repurchase Facility”:  Defined in Subsection 4(b) of
this Agreement.


 


“Target Day”:  Any day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer (TARGET) payment system (or, if
such payment system ceases to be operative, such other payment system (if
any) determined by the Purchaser to be a suitable replacement) is open for
the settlement of payments in Euro.


 


“Taxes”:  Any present or future taxes, levies, imposts,
duties, charges, assessments or fees of any nature (including interest,
penalties, and additions thereto) that are imposed by any Governmental
Authority.


 


“Transaction”:  Defined in the Recitals of this
Agreement.


 


“Uniform
Commercial Code” or “UCC”: 
The Uniform Commercial Code as in effect on the date hereof in the State
of New York; provided that if by reason of mandatory provisions of
Applicable Law, the perfection or the effect of perfection or non—perfection of
the security interest in the Note or other Purchased Item is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than New York, “Uniform
Commercial Code” shall mean the Uniform Commercial Code as in effect in such
other jurisdiction for purposes of the provisions hereof relating to such
perfection or effect of perfection or non—perfection.


 


“United
States”:  The United States of
America.


 


“Wachovia”:  Wachovia Bank, National Association.


 


“Wachovia
Repurchase Facility”:  Defined in Subsection 
4(b) of this Agreement.


 


“Wet—Funded
Note”:  Defined in Subsection 2(c) of
this Agreement.


 


Section 2.              Other Terms.


 


All
accounting terms used but not specifically defined herein shall be construed in
accordance with GAAP.  All terms used in Article 9
of the UCC in the State of New York, and used but not specifically defined
herein, are used herein as defined in such Article 9.


 


A-14

















 


Section 3.              Computation of Time Periods.


 


Unless
otherwise stated in this Agreement, in the computation of a period of time from
a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding.”


 


Section 4.              Interpretation.


 


In each Repurchase Document, unless a contrary
intention appears:


 


(i)            the singular number includes the plural number and vice versa;


 


(ii)           reference to any Person includes such Person’s successors
and assigns but, if applicable, only if such successors and assigns are
permitted by the Repurchase Documents;


 


(iii)          reference to any gender includes each other gender;


 


(iv)          reference to day or days without further qualification
means calendar days;


 


(v)           reference to any time means Charlotte, North Carolina
time;


 


(vi)          reference to any agreement (including any Repurchase
Document), document or instrument means such agreement, document or instrument
as amended, supplemented or modified and in effect from time to time in
accordance with the terms thereof and, if applicable, the terms of the other
Repurchase Documents, and reference to any promissory note includes any
promissory note that is an extension or renewal thereof or a substitute or
replacement therefor;


 


(vii)         reference to any Applicable Law means such Applicable Law as
amended, modified, codified, replaced or reenacted, in whole or in part, and in
effect from time to time, including rules and regulations promulgated
thereunder and reference to any Section or other provision of any
Applicable Law means that provision of such Applicable Law from time to time in
effect and constituting the substantive amendment, modification, codification,
replacement or reenactment of such Section or other provision;


 


(viii)        unless otherwise expressly provided in this Agreement,
reference to any notice, request, approval, consent or determination provided
for, permitted or required under the terms of this Agreement with respect to
the Seller, the Guarantor, the Pledgor or the Purchaser means, in order for
such notice, request, approval, consent or determination to be effective
hereunder, such notice, request, approval or consent must be in writing; and


 


(ix)           reference herein or in any Repurchase Document to the
Purchaser’s discretion shall mean, unless otherwise stated herein or therein,
the Purchaser’s sole and absolute discretion, and the exercise of such
discretion shall be final and conclusive. 
In addition, whenever the Purchaser exercises any right given to it to
approve or disapprove, or any arrangement or term is to be satisfactory to the
Purchaser, the decision of the Purchaser to approve or disapprove or to decide
that arrangements or terms are satisfactory or not satisfactory shall be in the
sole and absolute discretion of the Purchaser, and such decision shall be final
and conclusive, except as may be otherwise specifically provided herein.


 


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