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EXHIBIT 10.76
AMENDMENT
AMENDMENT, dated as of February 10, 1998 (this "Amendment"), to the
Excess Yield and Servicing Rights Purchase and Assumption Agreement, dated as of
January 22, 1998 (as amended, supplemented or otherwise modified from time to
time, the "Excess Yield Agreement"), among GREENWICH CAPITAL MARKETS, INC., as
purchaser (the "Purchaser"), and MEGO MORTGAGE CORPORATION, as seller (the
"Seller")
RECITALS
WHEREAS, pursuant to the Excess Yield Agreement, the Seller has sold and
transferred and the Purchaser has purchased the Excess Yield and Servicing
Rights with respect to Existing Conventional Loans (as defined in the Excess
Yield Agreement),
WHEREAS, pursuant to the Excess Yield Agreement, the Seller contemplated
selling to the Purchaser the Existing FHA Loans on the FHA Loan Closing Date,
but the FHA Loan Closing Date has never taken place and such sale has never been
consummated;
WHEREAS, the Seller desires to sell and transfer and the Purchaser
desires to purchase certain Additional Conventional Loans (as defined herein)
pursuant to the Amended and Restated Master Loan Purchase and Servicing
Agreement, dated as of October 1, 1996 (the "Original Agreement");
WHEREAS, the Seller desires to sell and transfer and the Purchaser
desires to purchase the Excess Yield and Servicing Rights with respect to the
Additional Conventional Loans pursuant to the Excess Yield Agreement, as
modified by this Amendment; and
WHEREAS, the Seller and the Purchaser desire to amend the Excess Yield
Agreement solely with respect to the Additional Conventional Loans, and that
with respect to Existing Loans (as defined in the Excess Yield Agreement), the
original Excess Yield Agreement terms shall continue to govern.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Seller and the Purchaser hereby
agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
Excess Yield Agreement are used herein as therein defined.
2. Amendments. Except as expressly amended hereby, the Excess Yield
Agreement shall remain in full force and effect in accordance with its terms,
without any waiver, amendment or modification of any provision thereof. All
provisions contained in this
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Amendment shall only apply to Additional Conventional Loans and shall in no way
modify the terms relating to Existing Loans (as defined in the Excess Yield
Agreement). Additionally, sections of the Excess Yield Agreement not modified by
this Amendment shall, as of the Additional Conventional Loan Closing Date, apply
to the Additional Conventional Loans to the same extent as they applied to the
Existing Conventional Loans. Sections or definitions of the Excess Yield
Agreement corresponding to the section or definition below are hereby amended by
deleting such section or definition and substituting in lieu thereof the
following:
a) Additional Conventional Loans. All Additional Conventional
Loans, as further described on the Additional Conventional
Loan Schedule attached hereto as Exhibit I.
b) Additional Conventional Loan Closing Date. The date on which
the Purchaser shall pay the Additional Conventional Loan
Purchase Price to the Seller, which date shall be February 10,
1998, or such other date or dates as shall be mutually agreed
upon by the parties hereto.
c) Additional Conventional Loan Purchase Price. The price to be
paid by the Purchaser to the Seller in exchange for the Excess
Yield and the Servicing Rights with respect to the Additional
Conventional Loans as set forth in Article III of the Excess
Yield Agreement.
d) Additional Conventional Loan Cut-Off Date. The close of
business on February 3, 1998.
e) Existing Conventional Loans. As defined in the Excess Yield
Agreement, and hereafter including all Additional Conventional
Loans.
f) Existing Loans: As defined in the Excess Yield Agreement, and
hereafter including all Additional Conventional Loans.
g) Servicing Expiration Date. The Servicing Expiration Date shall
mean February 28, 1998, as such date may be extended from time
to time pursuant to Section 7.03 of the Excess Yield
Agreement.
h) Section 2.01. Additional Conventional Loans.
(a) On the Additional Conventional Loan Closing Date, the
Seller does hereby sell, transfer, assign, set over and convey
to the Purchaser (to the extent that the following have not
already been conveyed to the Purchaser under the Original
Agreement), without recourse, subject to the following
sentence, but subject to the terms of this Agreement, (i) all
right, title and interest of the Seller in and to the Excess
Yield and the Servicing Rights with respect to the Additional
Conventional Loans as of the Additional Conventional Loan
Cut-Off Date, and (ii) all of the Seller's rights under the
PEC Sub-Servicing Agreement with respect to Additional
Conventional
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Loans as of the Additional Conventional Loan Cut-Off Date.
Notwithstanding the foregoing sentence, the Seller shall upon
demand of the Purchaser repurchase from the Purchaser, at the
Repurchase Price, any such Additional Conventional Loan that
thereafter becomes a Delinquent Loan (as defined in the
Original Agreement); provided, however, that the Seller's
liability pursuant to this sentence shall not, in the
aggregate, exceed the product of (i) 0.025 and (ii) the
aggregate "Cut-Off Date Principal Balance" of the Additional
Conventional Loans as set forth on Exhibit A (such product,
the "Recourse Limit").
(b) On the Additional Conventional Loan Closing Date, the
Purchaser does hereby (to the extent that the following have
not already been conveyed to the Purchaser under the Original
Agreement), (i) accept assignment of all right, title and
interest of the Seller in and to the Excess Yield and the
Servicing Rights with respect to the Additional Conventional
Loans as of the Additional Conventional Loan Cut-Off Date and
(ii) assume, subject to the terms of this Agreement, all
obligations of the Seller with respect to the Servicing Rights
and the PEC Sub-Servicing Agreement relating to the Additional
Conventional Loans as of the Additional Conventional Loan
Cut-Off Date; provided, however, that the Purchaser expressly
does not assume any liability relating to or in any way
arising out of the foregoing obligations prior to the
Additional Conventional Loan Cut-Off Date.
(c) Notwithstanding the foregoing and notwithstanding the
servicing provisions contained in the Original Agreement, for
the period beginning on the Additional Conventional Loan
Closing Date and ending on the Servicing Termination Date, the
Seller shall service the Additional Conventional Loans
pursuant to the revised Servicing Addendum, attached hereto as
Exhibit F, as described in Article VII hereof.
(d) From and after the Additional Conventional Loan Closing
Date, and notwithstanding the fact that certain documents,
files, records or other information which comprise a portion
of the Servicing Rights may remain at the Seller's premises
until the Servicing Termination Date or thereafter, (i) the
Seller's right to service the Additional Conventional Loans
shall absolutely and irrevocably terminate (subject to Article
VII hereof) and (ii) the Seller shall have no property,
contract, possessory or other right, title or interest of any
nature whatsoever in or to the Servicing Rights (including any
such documents, files, records or other information at the
Seller's premises, all of which shall be the sole property of
the Purchaser) or the Excess Yield with respect to the
Additional Conventional Loans. The Purchaser and Seller agree
that no termination fee, liquidated damages or any other fee
or monies triggered by the termination of the Seller's right
to service the Additional Conventional Loans shall be payable
to the Servicer as a result of the termination of such
servicing and the transactions
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contemplated by this Agreement, it being expressly understood
that the payment of the Additional Conventional Loan Purchase
Price by the Purchaser shall constitute, in and of itself, the
full consideration payable to the Seller for its sale of the
Excess Yield and the Servicing Rights with respect to the
Additional Conventional Loans and the other transactions
contemplated hereby; provided, however, that the Seller shall
be entitled to receive the Servicing Fee as and when
contemplated by the Original Agreement, as modified by Exhibit
F, with respect to its servicing of the Additional
Conventional Loans for the Purchaser for the period from the
Additional Conventional Loan Cut-Off Date until the Servicing
Termination Date.
i) Section 2.03 Intention of the Parties.
It is the express intention of the parties hereto that
the transactions contemplated by this Agreement and the
Original Agreement be, and be construed as, a sale of rights
and interests relating to the Additional Conventional Loans by
the Seller and not a pledge of the rights and interests
relating to the Additional Conventional Loans by the Seller to
the Purchaser to secure a debt or other obligation of the
Seller. However, in the event that the Additional Conventional
Loans and other rights transferred under this Agreement are
held to be property of the Seller, or if for any reason this
Agreement is held or deemed to create a security interest in
the Additional Conventional Loans and related rights then it
is intended that (a) this Agreement shall also be deemed to be
a security agreement within the meaning of the Uniform
Commercial Code of any applicable jurisdiction and the Seller
hereby grants to the Purchaser a security interest in all of
Seller's right, title and interest, whether now owned or
hereafter acquired, in and to the Additional Conventional
Loans; (b) the possession by the Purchaser of the related
Notes or such other items of property as constitute
instruments, money, negotiable documents or chattel paper
shall be deemed to be "possession by the secured party", or
possession by a purchaser or a person designated by such
secured party, for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code of any
applicable jurisdiction (including, without limitations,
Section 9-305, 8-313 or 8-321 thereof); (c) notifications to
persons holding such property, and acknowledgments, receipts
or confirmations from persons holding such property, shall be
deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or
agents (as applicable) of the Purchaser for the purpose of
perfecting such security interest under applicable law; and
(d) for purposes of this Agreement and the Pricing Letter,
"Loan Documents' shall include UCC-1 financing statements in
form acceptable for filing in the applicable jurisdictions in
which are located the principal place of business and the
executive offices of the Seller and executed by the Seller in
favor of the Purchaser.
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j) ARTICLE IV ADDITIONAL PAYMENTS:
The Purchaser and the Seller understand that the
Purchaser shall have the right to sell the Additional
Conventional Loans in whole or in part in its discretion on a
servicing released or servicing retained basis.
The Purchaser acknowledges that the Seller has made
certain contacts and tentative arrangements with potential
purchasers of the Additional Conventional Loans, and agrees
that it shall pay to the Seller a fee (such fee, the
"Additional Payments") equal to:
(a) With respect to any Purchaser Disposition of an
Additional Conventional Loan, except as provided in
paragraph (b) below, an amount equal to the product of the
Disposition Net Proceeds and (i) 87.5%, in the case of a
sale consummated within 30 days following the Additional
Conventional Loan Closing Date for such Loan, (ii) 80%, in
the case of a sale consummated between 31 and 60 days
following the Additional Conventional Loan Closing Date
for such Loan, (iii) 66 2/3%, in the case of a sale
consummated between 61 and 90 days following the
Additional Conventional Loan Closing Date for such Loan
and (iv) 33 1/3%, in the case of a sale consummated 91 or
more days following the Additional Conventional Loan
Closing Date for such Additional Conventional Loan, or
such other amounts agreed upon by the parties from time to
time.
(b) With respect to a Purchaser Disposition of an
Additional Conventional Loan which is arranged solely by
the Purchaser, an amount equal to the product of (i) 66
2/3% and (ii) the amount otherwise applicable pursuant to
paragraph (a) above.
k) Section 9.01. Additional Conventional Loan Closing.
(a) The closing for the purchase and sale of the Excess Yield
and the Servicing Rights with respect to the Additional
Conventional Loans, shall take place on the Additional
Conventional Loan Closing Date. At the Purchaser's option,
the closing shall be either: by telephone, confirmed by
letter or wire as the parties shall agree; or conducted in
person, at such place as the parties shall agree.
(b) The closing shall be subject to the following conditions:
(i) all of the representations and warranties of the
Seller and the Purchaser under this Agreement shall be
true and correct as of the Additional Conventional
Loan Closing Date and no event shall have occurred
which, with notice or the passage of time, would
constitute a default under this Agreement;
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(ii) the Purchaser shall have received, or the Purchaser's
attorneys shall have received in escrow, all Closing
Documents as specified in Section 9.01(c) of this
Agreement, in such forms as are agreed upon and
acceptable to the Seller and the Purchaser, duly
executed by all signatories other than the Purchaser
as required pursuant to the respective terms thereof;
(iii) the Seller shall have received the amount of the
Additional Conventional Loan Purchase Price by wire
transfer of immediately available federal funds to the
account designated by the Seller;
(iv) PEC shall have consented to the assignment of the PEC
Sub-Servicing Agreement with respect to the Additional
Conventional Loans on such terms and conditions as
shall be acceptable to the Purchaser in its sole
discretion, including without limitation terms and
conditions relating to the Purchaser's ability to
terminate PEC as subservicer of the PEC Sub-Servicing
Agreement with respect to the Additional Conventional
Loans as contemplated hereunder;
(v) the "Collection Account" and the "REO Account"
referenced in the Original Agreement shall be in the
name of the Purchaser within three (3) Business Days
following the Additional Conventional Loan Closing
Date; and
(vi) all other terms and conditions of this Agreement to
be performed or satisfied on or before the Additional
Conventional Loan Closing Date shall have been
complied with.
(c) The closing documents to be delivered on the Additional
Conventional Loan Closing Date shall consist of fully
executed originals of the following documents:
(i) this Agreement;
(ii) an Officer's Certificate from the Seller in the form
attached hereto as Exhibit B;
(iii) an Opinion of Counsel from the Seller in the form
attached hereto as Exhibit C;
(iv) a "true sale" Opinion of Counsel from the Seller, in
form and substance satisfactory to the Purchaser;
3. Effectiveness. This Amendment shall become effective upon receipt by
the Purchaser of evidence satisfactory to the Purchaser that this Amendment has
been executed and delivered by the Seller.
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4. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
5. Expenses. The Seller agrees to pay and reimburse the Purchaser for
all of the out-of-pocket costs and expenses incurred by the Purchaser in
connection with the preparation, execution and delivery of this Amendment,
including, without limitation, the fees and disbursements of counsel to the
Purchaser.
6. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
MEGO MORTGAGE CORPORATION
as Seller
By:
---------------------------------
Name:
Title:
GREENWICH CAPITAL MARKETS, INC.,
as Purchaser
By:
---------------------------------
Name:
Title:
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EXHIBIT I
ADDITIONAL CONVENTIONAL LOAN SCHEDULE
