SECOND AMENDED AND RESTATED
MASTER REPURCHASE AGREEMENT
AMONG
IXIS REAL ESTATE CAPITAL INC., as Buyer
ECC CAPITAL CORPORATION, as Seller
ENCORE CREDIT CORP., as Seller
BRAVO CREDIT CORPORATION, as Seller
and
CONQUISTAMERICA, INC., as Seller
Dated as of May 12, 2006
1
TABLE OF CONTENTS
Page
1. APPLICABILITY
2. DEFINITIONS
3. INITIATION; TERMINATION
4. MARGIN AMOUNT MAINTENANCE
5. INCOME PAYMENTS
6. REQUIREMENTS OF LAW
7. SECURITY INTEREST
8. PAYMENT, TRANSFER AND CUSTODY
9. HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS
10. SELLER REPRESENTATIONS
11. COVENANTS OF SELLER
12. EVENTS OF DEFAULT
13. REMEDIES
14. INDEMNIFICATION AND EXPENSES
15. RECORDING OF COMMUNICATIONS
16. SINGLE AGREEMENT
17. NOTICES AND OTHER COMMUNICATIONS
18. ENTIRE AGREEMENT; SEVERABILITY; MODIFICATIONS
19. NON-ASSIGNABILITY
20. TERMINABILITY
21. GOVERNING LAW
22. SUBMISSION TO JURISDICTION; WAIVERS
23. NO WAIVERS, ETC.
24. SERVICING
25. INTENT
26. PERIODIC DUE DILIGENCE REVIEW
27. BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT
28. MISCELLANEOUS
29. CONFIDENTIALITY
30. CONFLICTS
31. SET-OFF
32. OBLIGATIONS JOINT AND SEVERAL
EXHIBITS
SCHEDULE 1
EXHIBIT I
EXHIBIT II
EXHIBIT III
EXHIBIT IV
EXHIBIT V
EXHIBIT VI
EXHIBIT VII
Representations and Warranties Re: Mortgage Loans
Transaction Request
Underwriting Guidelines
Form of Opinion Letter
UCC Filing Jurisdictions
Form of Account Agreement
Form of True Sale Certification
Form of Servicer Notice
EXHIBIT VIII Form of Request for Additional Transactions For Excess Margin
EXHIBIT IX
EXHIBIT X
Form of Compliance Report
Hedging Strategy
2
SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
This is a SECOND AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT, dated as of
May 12, 2006, between IXIS REAL ESTATE CAPITAL INC, a New York corporation
("Buyer"), ENCORE CREDIT CORP., a California corporation ("Encore"), ECC CAPITAL
CORPORATION, a Maryland corporation ("ECC", BRAVO CREDIT CORPORATION, a
California corporation ("Bravo") and CONQUISTAMERICA, INC., a California
corporation ("ConquistAmerica", and together with Encore, ECC and Bravo,
"Seller").
1.
APPLICABILITY
From time to time the parties hereto may enter into transactions ("Committed
Transactions") in which Seller agrees to transfer to Buyer Mortgage Loans
against the transfer of funds by Buyer, with a simultaneous agreement by Buyer
to transfer to Seller such Mortgage Loans on demand by Buyer against the
transfer of funds by Seller. Additionally, from time to time, Buyer is prepared
to consider entering into additional transactions ("Uncommitted Transactions")
in which Seller agrees to transfer to Buyer Mortgage Loans against the transfer
of funds by Buyer, with a simultaneous agreement by Buyer to transfer to Seller
such Mortgage Loans on demand by Buyer, against the transfer of funds by Seller.
Each such Committed Transaction and Uncommitted Transaction shall be referred to
herein as a "Transaction" and shall be governed by this Agreement, unless
otherwise agreed in writing.
2.
DEFINITIONS
As used herein, the following terms shall have the following meanings (all terms
defined in this Section 2 or in other provisions of this Agreement in the
singular to have the same meanings when used in the plural and vice versa).
Terms otherwise not defined herein shall have the meanings assigned thereto in
the Custodial and Disbursement Agreement.
"40/30 Mortgage Loan" shall mean