EXHIBIT 10.03
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AMENDMENT NO. 1
TO
SERVICING RIGHTS PURCHASE AGREEMENT
by and between
OCWEN FEDERAL BANK FSB
(Purchaser)
and
METWEST MORTGAGE SERVICES, INC.
METROPOLITAN MORTGAGE & SECURITIES CO., INC.
WESTERN UNITED LIFE ASSURANCE COMPANY
SUMMIT SECURITIES, INC.
OLD STANDARD LIFE INSURANCE COMPANY
OLD WEST ANNUITY AND LIFE INSURANCE COMPANY
(Sellers)
Dated as of May 11, 2001
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AMENDMENT NO. 1 TO
SERVICING RIGHTS PURCHASE AGREEMENT
This AMENDMENT NO. 1, dated as of May 11, 2001 (this "Amendment"), to
the SERVICING RIGHTS PURCHASE AGREEMENT (the "Agreement") dated as of April 1,
2001, between METWEST MORTGAGE SERVICES, INC., a Washington corporation
("Metwest"), METROPOLITAN MORTGAGE & SECURITIES CO., INC., a Washington
corporation ("Metropolitan"), WESTERN UNITED LIFE ASSURANCE COMPANY, a
Washington insurance corporation ("Western"), SUMMIT SECURITIES INC., an Idaho
corporation ("Summit"), OLD STANDARD LIFE INSURANCE COMPANY, an Idaho insurance
corporation ("Old Standard") and OLD WEST ANNUITY & LIFE INSURANCE COMPANY, an
Arizona insurance corporation (each a "Seller" and collectively the "Sellers")
and OCWEN FEDERAL BANK FSB, a federally chartered savings bank (the
"Purchaser").
WHEREAS, the Agreement provided for the sale and purchase of the
Servicing Rights related to the Securitized Portfolio on or prior to the related
Transfer Date, but no later than June 2, 2001, subject to satisfaction of
certain conditions by Metwest;
WHEREAS, certain conditions necessary for the sale and purchase of the
Servicing Rights relating to a portion of the Securitized Portfolio may not be
satisfied by the related Transfer Date (such portion, the "Subservicing
Portfolio");
WHEREAS, Metwest and the Purchaser desire to effect the servicing
transfer and payment of the related Purchase Price on the related Transfer Date
with respect to the Securitized Portfolio, including the Subservicing Portfolio,
although the actual Servicing Rights with respect to the Subservicing Portfolio
will not be transferred to the Purchaser until such time that the necessary
conditions set forth in the Agreement have been satisfied;
WHEREAS, the Sellers and the Purchaser desire that the Purchaser
continue to act as subservicer with respect to the Subservicing Portfolio in
accordance with the Agreement until such time that such conditions are satisfied
to transfer the Servicing Rights with respect to all or some of such
Subservicing Portfolio to the Purchaser; and
WHEREAS, the Sellers and the Purchaser desire to amend the Agreement to
set forth additional terms and agreements of the parties with respect to the
foregoing and certain related matters;
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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A. DEFINITIONS.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned to them in the Agreement.
B. AMENDMENTS TO AGREEMENT.
1. (i) Section 1.01 of the Agreement is hereby amended by deleting the
definitions of "Purchase Date" and "Transfer Date" and substituting therefor the
following:
(a) "PURCHASE DATE": With respect to the Non-Securitized
Portfolio, the Closing Date and with respect to the
Securitized Portfolio, the Transfer Date related to the
Securitized Portfolio or such other date mutually agreed to by
the Purchaser and Metwest.
(b) "TRANSFER DATE": With respect to an Asset, the date on
which the physical servicing of the Asset is transferred to
the Purchaser pursuant to this Agreement, which date shall be,
in the case of the Securitized Portfolio, the close of
business on June 1, 2001, and in the case of the
Non-Securitized Portfolio, July 1, 2001, in each case unless
otherwise mutually agreed to by the related Sellers and the
Purchaser.
(ii) Section 1.01 of the Agreement is hereby amended by adding
the following definition:
"SUBSERVICING PORTFOLIO": That portion of the Securitized
Portfolio for which all of the conditions necessary for the sale and purchase of
the Servicing Rights are not satisfied by the related Transfer Date.
2. Section 2.01(b) of the Agreement is hereby amended by deleting that
section in its entirety and substituting therefor the following:
(b) Securitized Portfolio. Subject to the terms and provisions
of this Agreement, Metwest hereby agrees to use its best
efforts to satisfy by the related Purchase Date the conditions
set forth in this Agreement to the purchase by the Purchaser
of the Servicing Rights relating to the Securitized Portfolio
and to sell, transfer, assign, convey and set over such
Servicing Rights to the Purchaser, in each case as of such
Purchase Date or as soon thereafter as reasonably practicable.
In the event the conditions set forth in the Agreement for the
purchase of the Servicing Rights relating to one or more Pools
in the Securitized Portfolio are not satisfied as of the
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related Purchase Date, the Purchaser shall continue to act as
subservicer with respect to each Pool remaining in the
Subservicing Portfolio following such Purchase Date in
accordance with Section 2.05 until such time that the
conditions set forth in this Agreement for transferring the
Servicing Rights relating to any such Pool are satisfied and
the Servicing Rights are transferred to the Purchaser in
accordance with this Agreement. Metwest shall cause the
transfer and assignment of the Servicing Rights relating to
any Pool in the Subservicing Portfolio to the Purchaser as
soon as reasonably practicable following the satisfaction of
the conditions set forth in this Agreement for transferring
such Servicing Rights. To effect the transfer of the Servicing
Rights relating to a Pool, Metwest shall cause the necessary
amendments to the related P&S Agreement to be executed and
Metwest and the Purchaser shall execute an Assignment and
Assumption Agreement relating to such Pool and P&S Agreement.
On the Purchase Date for the Securitized Portfolio, subject to
the terms and provisions of this Agreement, the Purchaser will
pay to Metwest the entire Purchase Price for the Securitized
Portfolio, regardless of whether the conditions set forth in
this Agreement for the purchase of the Servicing Rights
relating to any Pool in the Securitized Portfolio are
satisfied and the related Servicing Rights are transferred on
such Purchase Date. Such Purchase Price shall be payable to
Metwest in immediately available funds on the Purchase Date
for the Securitized Portfolio and shall represent
consideration for the sale of the Servicing Rights relating to
the Securitized Portfolio and for the subservicing arrangement
set forth in Section 2.05 with respect to the Subservicing
Portfolio. Upon the transfer to the Purchaser of the Servicing
Rights relating to a Pool in the Securitized Portfolio
pursuant to this Agreement, the Purchaser shall service the
Loans in such Pool in accordance with the related P&S
Agreement and during such time that such Pool is in the
Subservicing Portfolio, the Purchaser shall act as subservicer
of the related Loans pursuant to Section 2.05.
3. Section 2.01(c) of the Agreement is hereby amended by deleting that
section in its entirety and replacing it with the following:
(c) [Reserved]
4. Section 2.04(a)(v) of the Agreement is hereby amended by inserting
at the end of such clause the following:
provided, however, that in the event that Metwest is unable to
obtain through its best efforts the consent of the required
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certificateholders for one or more Pools as of the Purchase
Date, then Metwest shall use its best efforts to cause the
Amendments and documents in clause (B) relating to such Pools
to be delivered to the Purchaser as soon thereafter as
reasonably practical;
5. Section 2.05 of the Agreement is hereby amended by (i) deleting in
clause (a) the words "on the related Purchase Date" and substituting therefor
the words "in accordance with this Agreement" and (ii) adding at the end of such
section the following sentence:
The parties acknowledge that Section 6.01 shall no longer be
applicable to the Securitized Portfolio following the Purchase
Date for the Securitized Portfolio.
6. Article II of the Agreement is hereby amended by adding the
following Section 2.06:
Section 2.06 Termination Fee with respect to the Subservicing
Portfolio.
(a) In the event the Purchaser is terminated as subservicer
without cause on its part with respect to any Pools in the
Subservicing Portfolio following the Purchase Date for the
Securitization Portfolio (other than in connection with the
transfer of the related Servicing Rights to the Purchaser),
Metwest shall (i) pay to the Purchaser a termination fee or
liquidated damages ("Termination Fee") relating to such Pools
equal to the applicable amount set forth on Schedule E and
(ii) reimburse the Purchaser for all unreimbursed Advances
made or reimbursed by the Purchaser with respect to such
Pools. Notwithstanding the foregoing, in the event Metwest
elects to sell, transfer or assign the Servicing Rights with
respect to one or more Pools in the Subservicing Portfolio,
Metwest shall, at the option of the Purchaser, transfer, sell
and assign the Servicing Rights with respect to such Pools to
the Purchaser in consideration for the Purchaser releasing
Metwest from its obligation to pay the Termination Fee and
reimburse the Purchaser for unreimbursed Advances as provided
above.
(b) To secure its obligation to pay the foregoing Termination
Fee and reimbursement of Advances, Metwest shall prior to the
Purchase Date for the Securitized Portfolio (i) enter into a
security or pledge agreement ("Security Agreement") mutually
acceptable to the Purchaser and Metwest pursuant to which
Metwest shall pledge a first priority security interest in (A)
the Servicing Rights relating to the Pools in the Subservicing
Portfolio and (B) certain residual securities (the "Residual
Securities") acceptable to the Purchaser relating to the Pools
in the Subservicing Portfolio and
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(ii) deliver to an escrow or collateral agent mutually
acceptable to the Purchaser and Metwest (the "Bailee") the
Residual Securities and related bond powers and other
documents required from Metwest or the current holder in order
to transfer the Residual Securities, such documents to be held
by the Bailee pursuant to the Security Agreement or a separate
escrow or collateral agreement (the "Escrow Agreement")
mutually acceptable to the Purchaser and Metwest. The Escrow
Agreement shall set forth the terms under which the Residual
Securities and related proceeds will be held and released but,
in any event, shall provide for the release of any remaining
Residual Securities and related proceeds held in escrow upon
the earlier to occur of April 1, 2006 or such time when no
assets remain in the Subservicing Portfolio.
7. Sections 4.01(a)(i) and (b)(i) of the Agreement are hereby amended
by deleting the first parenthetical under each section and substituting therefor
the following:
(with respect to the Securitized Portfolio, to be delivered
upon the transfer of the related Servicing Rights to the
Purchaser)
8. Section 4.01(a)(v) of the Agreement is hereby amended by deleting
that section in its entirety and replacing it with the following:
(v) All of the consents required pursuant to Section 7.02 as
of the dates specified therein.
9. Sections 4.10, 6.02 and 7.02 of the Agreement are hereby amended by
inserting after each use of the term "Purchase Date" the following
parenthetical:
(or in the case of the Subservicing Portfolio, such later date
on which the Servicing Rights are transferred to the Purchaser
pursuant to this Agreement)
10. The Agreement is hereby amended by adding a Schedule E attached
hereto.
C. AMENDMENT TO AGREEMENT TO SELL SERVICING RIGHTS. The Agreement to Sell
Servicing Rights is hereby amended by adding the following Section 3.9:
Section 3.9 Subservicing Portfolio.
(a) Notwithstanding any provision in this Agreement to the
contrary, references to the Servicing Rights Purchase
Agreement shall be to the Servicing Rights Purchase Agreement,
as amended from time to time.
(b) Notwithstanding any provision in this Agreement to the
contrary, with respect to Pools in the Subservicing Portfolio,
the
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parties hereto agree that Ocwen shall have no right to sell
the Servicing Rights relating to such Pools pursuant to this
Agreement (until such time that the Servicing Rights are
transferred to Ocwen), but Ocwen agrees that it may be
terminated as subservicer with respect to one or more such
Pools by Metwest without cause upon thirty (30) days prior
written notice and payment of a termination fee equal to the
related Purchase Price. The parties agree that all other
provisions relating to the purchase of Servicing Rights shall
be deemed to also apply to the termination of Ocwen as
subservicer in accordance with the foregoing.
D. EFFECT OF AMENDMENT. It is the intention of the parties that this Amendment
together with the Agreement, the exhibits and schedules to the Agreement,
constitute the entire agreement of the parties and supersedes all prior
agreements and undertakings, both written and oral, except as otherwise
expressly provided herein and in the Agreement.
E. BINDING EFFECT. The provisions of this Amendment shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties
hereto.
F. COUNTERPARTS. This Amendment may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but on and the same
instrument.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to
Servicing Rights Purchase Agreement to be executed by their duly authorized
officers as of the date first above written.
OCWEN FEDERAL BANK FSB
(Purchaser)
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
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Title: President
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METWEST MORTGAGE SERVICES, INC.
(Seller)
By: /s/ XXXXXXX XXXXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxxxx
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Title: Corporate Counsel
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METROPOLITAN MORTGAGE & SECURITIES CO.,
INC.
(Seller)
By: /s/ XXXXXXX XXXXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxxxx
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Title: Corporate Counsel
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WESTERN UNITED LIFE ASSURANCE COMPANY
(Seller)
By: /s/ XXXXXXX XXXXXXXXXXX
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Name: Xxxxxxx Xxxxxxxxxxx
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Title: Corporate Counsel
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SUMMIT SECURITIES, INC.
(Seller)
By: /s/ XXX XXXXXX
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Name: Xxx Xxxxxx
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Title: President
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OLD STANDARD LIFE INSURANCE COMPANY
(Seller)
By: /s/ XXX XXXXXX
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Name: Xxx Xxxxxx
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Title: Vice President Secretary Treasurer
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OLD WEST ANNUITY AND LIFE INSURANCE
COMPANY
(Seller)
By: /s/ XXX XXXXXX
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Name: Xxx Xxxxxx
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Title: Secretary Treasurer
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SCHEDULE E
SECURITIZED PORTFOLIO
REPURCHASE PRICES
POOL UPB LOANS YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
---- ------------ ------------ ---------- ---------- ---------- ---------- ----------
Metro 96-1 & 96-A 77,418,465 2,348 0.5845% 0.5588% 0.5545% 0.5195% 0.4987%
Metro 97-B 66,854,677 1,673 0.1512% 0.1356% 0.1125% 0.0943% 0.0615%
Metro 98-A & 98-B 207,716,154 4,156 0.2105% 0.1976% 0.2161% 0.1790% 0.1185%
Metro 99-A & 99-B 243,705,090 3,892 0.5373% 0.4672% 0.4543% 0.4227% 0.3993%
Metro 99-C 36,933,111 908 0.8118% 0.7694% 0.7357% 0.6668% 0.5990%
Metro 99-D 119,604,888 1,798 0.7845% 0.7248% 0.6977% 0.6367% 0.5771%
Metro 2000-A & 2000-B 408,308,645 5,226 0.8371% 0.7011% 0.6435% 0.5859% 0.5341%
Metro Timeshare 97-A 6,759,201 2,045 0.1512% 0.0000% 0.0000% 0.0000% 0.0000%
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