EXHIBIT 10.2
EXECUTION COPY
AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
AMONG
IXIS REAL ESTATE CAPITAL INC., as Buyer
ECC CAPITAL CORPORATION, as Seller
ENCORE CREDIT CORP., as Seller
and
BRAVO CREDIT CORPORATION, as Seller
Dated as of February 18, 2005
TABLE OF CONTENTS
Page
1.
APPLICABILITY
1 2.
DEFINITIONS
1 3.
INITIATION; TERMINATION
18 4.
MARGIN AMOUNT MAINTENANCE
26 5.
INCOME PAYMENTS
27 6.
REQUIREMENTS OF LAW
28 7.
SECURITY INTEREST
29 8.
PAYMENT, TRANSFER
AND CUSTODY
31 9.
HYPOTHECATION OR PLEDGE OF PURCHASED ASSETS
31 10.
SELLER REPRESENTATIONS
32 11.
COVENANTS OF SELLER
38 12.
EVENTS OF
DEFAULT
45 13.
REMEDIES
49 14.
INDEMNIFICATION AND EXPENSES
51
15.
RECORDING OF COMMUNICATIONS
52 16.
SINGLE AGREEMENT
53 17.
NOTICES AND OTHER COMMUNICATIONS
53 18.
ENTIRE AGREEMENT; SEVERABILITY;
MODIFICATIONS
53
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19.
NON-ASSIGNABILITY
54 20.
TERMINABILITY
54 21.
GOVERNING LAW
54 22.
SUBMISSION TO JURISDICTION; WAIVERS
55 23.
NO WAIVERS, ETC.
55 24.
SERVICING
56 25.
INTENT
57 26.
PERIODIC DUE DILIGENCE
REVIEW
58 27.
BUYER'S APPOINTMENT AS ATTORNEY-IN-FACT
58 28.
MISCELLANEOUS
60 29.
CONFIDENTIALITY
61 30.
CONFLICTS
61 31.
SET-OFF
62 32.
OBLIGATIONS JOINT AND SEVERAL
62
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EXHIBITS
SCHEDULE 1
Representations and Warranties Re: Mortgage Loans
EXHIBIT I
Transaction Request
EXHIBIT II
Underwriting Guidelines
EXHIBIT III
Form of Opinion Letter
EXHIBIT IV
UCC Filing Jurisdictions
EXHIBIT V
Form of Account Agreement
EXHIBIT VI
Form of True Sale Certification
EXHIBIT VII
Form of Servicer Notice
EXHIBIT VIII
Form of Request for Additional Transactions For Excess Margin
EXHIBIT IX
Form of Compliance Report
EXHIBIT X
Hedging Strategy
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AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT
This is an AMENDED AND RESTATED MASTER REPURCHASE AGREEMENT, dated as of
February 18, 2005 between IXIS REAL ESTATE CAPITAL INC. f/k/a CDC Mortgage
Capital Inc., a New York corporation ("Buyer"), ENCORE CREDIT CORP., a
California corporation ("Encore"), ECC CAPITAL CORPORATION, a Maryland
corporation ("ECC") and BRAVO CREDIT CORPORATION, a California corporation
("Bravo", and together with Encore and ECC, "Seller").
1. APPLICABILITY
From time to time the parties hereto may enter into 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 or at a date certain not later than 364 days
after the date of transfer, against the transfer of funds by Seller. Each such
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.
"Account Agreement" shall mean that certain letter agreement, dated June 30,
2004, among Encore, Buyer and the Bank,