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EXHIBIT 10.38
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment (the "First Amendment"), dated as of
October 2, 1995, amends that certain Asset Purchase Agreement (the
"Agreement"), dated as of September 5, 1995, by and between First Nationwide
Mortgage Corporation, a Delaware corporation ("Buyer"), and Lomas Mortgage USA,
Inc., a Connecticut corporation (the "Company").
WHEREAS, Buyer and the Company previously entered into the
Agreement, pursuant to which Buyer will acquire certain assets and assume
certain liabilities of the Company, all as more fully set forth in the
Agreement; and
WHEREAS, Buyer and the Company desire to amend certain
provisions of the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties contained herein and in the
Agreement, and intending to be legally bound hereby, the parties hereto do
hereby agree as follows:
1. The first paragraph of the recitals to the Agreement
is hereby amended in its entirety to read as follows:
WHEREAS, the Company is engaged in the business of
servicing, subservicing and master servicing mortgage loans
(the "Servicing Business"), including (i) the servicing and
subservicing of mortgage loans held in pools securing
mortgage-backed securities guaranteed by the Government
National Mortgage Association ("GNMA"), (ii) the servicing of
certain mortgage loans held in pools securing mortgage- backed
securities held by the Bond Program Agencies (as defined
herein) and issued and guaranteed by the Federal National
Mortgage Association ("FNMA") pursuant to the Bond Programs
(as defined herein) (the servicing and subservicing of such
mortgage loans by the Company as described in clauses (i) and
(ii) is referred to herein as the "Purchased Servicing") and
(iii) the master servicing of mort-
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gage loans held in pools evidenced by pass-through
certificates (A) held by the California Public Employees'
Retirement System ("CALPERS") and issued pursuant to the
CALPERS Member Home Loan Conduit Program, (B) issued by the
Texas Veterans Land Board, or (C) otherwise issued or
guaranteed by FNMA and master serviced by the Company under
FNMA seller-servicer number 21055 (the master servicing by the
Company of all such mortgage loans is referred to herein as
the "Purchased Master Servicing"); and
2. The definitions of "GNMA Servicing" and "CALPERS
Master Servicing" are hereby deleted and in each place in the Agreement where
such terms appear, the terms "Purchased Servicing" and "Purchased Master
Servicing", respectively, are hereby substituted in place thereof.
3. The following definitions are hereby added to Article
I of the Agreement as follows:
Buyer Repurchase Agreement -- That certain Master Repurchase
Agreement, dated as of September 19, 1995, by and between
Buyer and the Company, including all annexes, exhibits and
schedules thereto.
Purchased Servicing -- As defined in the recitals hereof.
Purchased Master Servicing -- As defined in the recitals
hereof.
4. The definition of Mortgage Loan in Article I of the
Agreement is hereby amended in its entirety to read as follows:
Mortgage Loan -- (A) Any closed mortgage loan, whether or not
the related mortgage is included in a securitized portfolio,
evidenced by a note or notes duly secured by mortgages or
deeds of trust, which loan, whether single-family or
multi-family, is (i) serviced or subserviced by the Company
and comprises part of the Purchased Servicing, (ii) master
serviced by the Company and comprises part of the Purchased
Master Servicing or (iii) a loan the Servicing Rights
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for which are owned by LMP, (B) the Warehouse Loans and (C) a
secured personal loan serviced by the Company pursuant to the
CALPERS Member Home Loan Conduit Program.
5. The definition of Warehouse Lines in Article I of the
Agreement is hereby amended in its entirety to read as follows:
Warehouse Lines -- The Bank Warehouse Line, the FNMA Line, the
DLJ Line and the Buyer Repurchase Agreement.
6. The definition of Warehouse Loans in Article I of the
Agreement is hereby amended in its entirety to read as follows:
Warehouse Loans -- The mortgage loans (i) owned by the Company
and held for sale, other than the Warehouse For Others or (ii)
which have been sold by the Company under agreements to
repurchase such loans pursuant to the terms of any of the
Warehouse Lines.
7. Section 2.3(c) of the Agreement is hereby amended by
substituting, in place of the words "$27 million," in each place where such
words appear, the words "$35 million,".
8. Section 2.5(h) of the Agreement is hereby amended in
its entirety to read as follows:
(h) Adjustment for Warehouse Lines. The Base
Purchase Price shall be (i) decreased by the amount, if any,
by which the aggregate amount of all obligations of the
Company outstanding and owing under the Warehouse Lines
(exclusive of all such outstanding obligations relating to
funds advanced to fund the Warehouse For Others) exceeds
$302,013,000, or (ii) increased by the amount, if any, by
which $302,013,000 exceeds the aggregate amount of all
obligations of the Company outstanding and owing under the
Warehouse Lines (exclusive of all such outstanding obligations
relating to funds advanced to fund the Warehouse For Others).
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9. Section 2.5(j) of the Agreement is hereby amended by
adding the words "and as further adjusted pursuant to the terms of Section
2.6," before the words "is referred to herein as the "Final Purchase Price" in
the last sentence of such section.
10. Section 2.6 of the Agreement is hereby amended in its
entirety to read as follows:
2.6 Bond Program Loans
(a) The amount payable by Buyer to the Company
pursuant to Section 2.3(d) hereof on the 120th day following
the Closing shall be decreased by (i) the aggregate amount of
the net loss on each Bond Program Loan as of the Closing Date,
computed pursuant to Section 2.5(f), without regard to the
adjustment made pursuant to Section 2.5(d), which Bond Program
Loan was not a Consenting Bond Program Loan as of the 120th
day following the Closing Date and (ii) 1.10% multiplied by
the unpaid principal amount as of the Closing Date of each
Closing Portfolio Loan held in a Pool securing mortgage-backed
securities held by a Bond Program Agency from which the
Company shall not have received its written consent, in form
and substance reasonably satisfactory to Buyer, to the
transactions contemplated by this Agreement as of the 120th
day following the Closing Date. The deductions contemplated
by this Section 2.6(a) shall be taken into account by the
parties in calculating the Final Purchase Price pursuant to
Section 2.5.
(b) If any Bond Program Loan becomes a Consenting
Bond Program Loan after the 120th day following the Closing
Date but on or before the one-year anniversary of the Closing
Date, then the amount of the loss with respect to such loan
deducted pursuant to Section 2.6(a) shall be added to the
Final Settlement Amount. If the Company shall have received a
consent from any Bond Program Agency, after the 120th day
following the Closing but on or before the one-year
anniversary of the Closing Date, with respect to which a
deduction shall have been
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made pursuant to clause (ii) of subsection (a) above, then the
aggregate amount of all such deductions so made with respect
to each such Bond Program Agency from which a consent shall
have been received shall be added to the Final Settlement
Amount.
(c) If any Bond Program Loan is held by Buyer on
the one-year anniversary of the Closing Date, such loan shall
be marked-to-market as of such date in accordance with the
provisions set forth on Exhibit 2.5, and the aggregate amount
of gains or losses with respect to all such Bond Program Loans
as compared to the aggregate amount of gains or losses with
respect to such loans computed as of the Closing Date as set
forth in the Closing Adjustment Documents shall be deducted
from or added to, as the case may be, the Final Settlement
Amount payable by Buyer pursuant to Section 2.7.
11. Section 5.11 of the Agreement is hereby amended in
its entirety to read as follows:
5.11 Payment of Warehouse Lines;
Release of Warehouse Loans
On or prior to the Closing, Buyer shall take such
action as is necessary to (i) pay off in full on behalf of the
Company all outstanding principal and accrued interest owing
under the Bank Warehouse Line, the FNMA Line and the DLJ Line
other than any such outstanding obligations relating to the
Warehouse For Others and (ii) cancel all outstanding
repurchase obligations owing under the Buyer Repurchase
Agreement as of the Closing Date. The Company shall, with the
cooperation of Buyer, cause all Encumbrances on the Warehouse
Loans to be released upon Buyer's payments in accordance with
this Section 5.11, such that, at the Closing, Buyer shall
acquire title to the Warehouse Loans free and clear of any
Encumbrances.
12. Schedule II and Schedule V to the Agreement are
hereby amended by adding to each of such schedules the following items:
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o Texas Veterans Land Board Master Servicing Agreement
o FmHA Master Servicing under FNMA seller-servicer 21055
13. Schedule II to the Agreement is hereby amended to
delete the item "Xxxxxx & Co. contract" from such schedule.
14. The parties hereby agree that, for purposes of
computing the adjustment to the Base Purchase Price for the net gain or loss on
Rate-Locked Pipeline Loans and Investor Commitments pursuant to Section 2.5(d)
of the Agreement, all trades which were assigned by the Company to Buyer in
connection with Buyer's purchase of mortgage loans under the Buyer Repurchase
Agreement shall be included in such price adjustment calculation as though such
trades had not been assigned by the Company.
15. Capitalized terms used but not defined herein shall
have the meanings set forth in the Agreement.
16. This First Amendment may be executed in counterparts,
or facsimiles thereof, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this First
Amendment as of the date first set forth above.
FIRST NATIONWIDE MORTGAGE CORPORATION
By: /s/ XXXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: EVP
LOMAS MORTGAGE USA, INC.
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Title: CEO
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