AMENDMENT NUMBER FIFTEEN to the MASTER REPURCHASE AGREEMENT (SECURITIES) dated as of January 31, 2006 among WACHOVIA INVESTMENT HOLDINGS, LLC, ECC CAPITAL CORPORATION ECC INVESTMENT CORP. and ECR INVESTMENT CORP.
Exhibit 10.28
AMENDMENT NUMBER FIFTEEN
to the
MASTER REPURCHASE AGREEMENT (SECURITIES)
dated as of January 31, 2006
among
WACHOVIA INVESTMENT HOLDINGS, LLC,
ECC CAPITAL CORPORATION
ECC INVESTMENT CORP.
and
ECR INVESTMENT CORP.
AMENDMENT NUMBER FIFTEEN (“Amendment Number Fifteen”), dated as of June 16, 2006 (the “Effective Date”), by and among Wachovia Investment Holdings, LLC, as buyer (the “Buyer”), ECC Capital Corporation (“ECC”), as guarantor and seller (the “Guarantor”), ECC Investment Corp. (“ECCIC”) and ECR Investment Corp. (“ECR” and together with ECCIC and ECC, the “Sellers”), to the Master Repurchase Agreement (Securities), dated as of January 31, 2006, as amended, by and among the Buyer, the Guarantor and the Sellers (the “Master Repurchase Agreement”).
RECITALS
WHEREAS, the Buyer, the Guarantor and the Sellers have agreed to amend the Master Repurchase Agreement, pursuant to the term and conditions set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and of the mutual covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Any terms capitalized but not otherwise defined herein shall have the respective meanings set forth in the Master Repurchase Agreement.
SECTION 2. Amendments. Effective as of the Effective Date, the Master Repurchase Agreement is hereby amended as follows:
(a) Section 2 of the Master Repurchase Agreement is hereby amended as follows:
(i) The definitions of “Commitment Fee” and “Default Fee” are deleted in their entirety.
(ii) The definition of “Maximum Aggregate Purchase Price” is deleted in its entirety and replaced with the following:
“Maximum Aggregate Purchase Price” means $80,000,000, reduced by the excess, if any, of the aggregate purchase price outstanding at any time under the Mortgage Loan Repurchase Facility over $920,000,000.
(iii) The following definition of “Fee Letter” is added in alphabetical order:
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“Fee Letter” means that certain fee letter, dated as of June 16, 2006, among Sellers, the Buyer and other parties as set forth therein, as the same may be amended, supplemented or modified from time to time.
(b) Section 9(b) of the Master Repurchase Agreement is hereby amended by deleting clause (xi) thereof in its entirety and replacing it with the following:
“(xi) Seller shall have paid to Buyer the all fees owed to the Buyer pursuant to the Fee Letter and any accrued and unpaid fees and expenses owed to Buyer in accordance with the Program Documents.”
(c) Section 19(c) of the Master Repurchase Agreement is hereby amended by deleting the words “provided, however, that any such Event of Default, other than an Event of Default related to any bankruptcy or insolvency of the Seller or Guarantor, shall be deemed to be waived for a period of thirty (30) days following such Event of Default upon payment by the Seller to the Buyer of the Default Fee, such fee to be paid in full to Buyer within two (2) Business Days of such Event of Default” from the second paragraph thereof.
(d) The Master Repurchase Agreement is hereby amended by deleting the Section 27 thereof in its entirety and replacing it with the following:
27. TERMINATION
This Agreement shall remain in effect until the earliest of (i) December 13, 2006 or (ii) at Buyer=s option upon the occurrence of an Event of Default (such date, the “Termination Date”). However, no such termination shall affect the Sellers= outstanding obligations to Buyer at the time of such termination. The Sellers= obligations to indemnify Buyer pursuant to this Agreement shall survive the termination hereof.
SECTION 3. Conditions Precedent. This Amendment Number Fifteen shall become effective on the date on which the Buyer shall have received the following:
(a) payment by the Seller by wire transfer in immediately available funds of all fees owed to the Buyer pursuant to the Fee Letter;
(b) this Amendment Number Fifteen, executed and delivered by duly authorized officers of each Seller, the Guarantor and the Buyer; and
(c) such other documents as the Buyer or counsel to the Buyer may reasonably request.
SECTION 4. Representations. In order to induce the Buyer to execute and deliver this Amendment Number Fifteen, each Seller and Guarantor hereby represents and warrants to the Buyer that (i) no Default or Event of Default has occurred prior to the date hereof and is continuing on the date hereof and (ii) as of the date hereof, after giving effect to this Amendment Number Fifteen, each Seller and Guarantor is in full compliance with all of the representations and warranties, covenants and any other terms and conditions of the Program Documents. In addition, each Seller and Guarantor hereby represents that no event has occurred that constitutes or should reasonably be expected to constitute a Material Adverse Change.
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SECTION 5. Governing Law. THIS AMENDMENT NUMBER FIFTEEN SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE.
SECTION 6. Counterparts. This Amendment Number Fifteen may be executed by each of the parties hereto on any number of separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument. Facsimile signatures shall have the same binding effect as original signatures.
SECTION 7. Limited Effect. Except as amended hereby, the Master Repurchase Agreement and the other Program Documents shall continue in full force and effect in accordance with their respective terms. Reference to this Amendment Number Fifteen need not be made in the Master Repurchase Agreement, any other Program Document or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to, or with respect to, the Master Repurchase Agreement or any other Program Document, any reference in any of such items to the Master Repurchase Agreement or any other Program Document, as applicable, being sufficient to refer to the Master Repurchase Agreement or such other Program Document, as applicable, as amended hereby.
SECTION 8. Expenses. Sellers shall promptly reimburse Buyer for all out-of-pocket costs and expenses of Buyer in connection with the preparation, execution and delivery of this Amendment Number Fifteen (including, without limitation, the fees and expenses of counsel for Buyer).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, each Seller, the Guarantor and the Buyer have caused this Amendment Number Fifteen to be executed and delivered by their duly authorized officers as of the day and year first above written.
| ECC CAPITAL CORPORATION, as a Guarantor and a Seller | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary & General Counsel | |
| ECR INVESTMENT CORP., as a Seller | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary & General Counsel | |
| ECR INVESTMENT CORP., as a Seller | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary & General Counsel | |
| WACHOVIA INVESTMENT HOLDINGS, LLC, as Buyer and Agent, as applicable | ||
| By: |
/s/ Xxxxxx X. Xxxxxx | |
| Name: | Xxxxxx X. Xxxxxx | |
| Title: |
Director | |
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