Exhibit 10.2
AMENDMENT
TO
PURCHASE AND ASSUMPTION AGREEMENT
This Amendment ("Amendment") to the Purchase and Assumption Agreement
("Agreement") is entered into as of this 18th day of April, 2003 by and between
MATRIX FINANCIAL SERVICES CORPORATION, an Arizona corporation ("Seller"), MATRIX
CAPITAL BANK, a federal savings bank ("Parent"), and AMPRO MORTGAGE CORPORATION,
a Delaware corporation ("Purchaser"). Capitalized terms used herein and not
otherwise defined shall have the meanings given them in the Agreement.
WHEREAS, the loan production levels of the Acquired Division have
increased to a level where the parties believe it is in the best interests of
Seller to enter into the Countrywide Early Purchase Program (as defined below);
and
WHEREAS, the parties have determined, based on internal business
considerations of Seller and Parent, not to expand the limits of the Warehouse
Agreement; and
WHEREAS, the parties desire to amend certain of the terms of the
Agreement in accordance with, and as set forth in, this Amendment.
NOW, THEREFORE, in consideration of the premises and the mutual
undertakings set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Amendment of Exhibit A-1. Exhibits A-1 of the Agreement shall be and
hereby is amended to include (in addition to the contents of Exhibit A-1
immediately prior to the effective date of this Amendment) each of the
additional bullet point items set forth below:
o all fees, costs and expenses expressly set forth in the
Countrywide Early Purchase Program (as defined in the
Operating Plan, as amended hereby);
o if and only to the extent that the unpaid principal balance of
all Mortgage Loans that are subject to the Warehouse Agreement
at any particular time exceeds the sum of (A) $425,000,000
plus (B) any additional amounts as may be agreed to
periodically (e.g., on a day-by-day basis or week-by-week
basis, etc.) by Parent in its sole discretion in writing (the
sum of (A) and (B) being referred to herein on each periodic
basis as the "Warehouse Limit" for such period), then the
interest rate payable by the Acquired Division under the
Warehouse Agreement with respect to such excess Mortgage Loans
(i.e., the portion of the Mortgage Loans in excess of the
Warehouse Limit for that period) shall be deemed to be the
weighted average coupon rate on all Mortgage Loans outstanding
under the Warehouse Agreement for that particular period of
time (for such period or date in question, the "WAC Rate").
For purposes of this provision, the agreement of Parent to
accept a Warehouse Limit in excess of $425,000,000 for a
period of time may be made only in a writing, which may
include e-mail, executed by the President, CEO, CFO or COO of
the Parent; and such writing must specify the period of time
during which such additional Warehouse Limit in excess of
$425,000,000 is effective (otherwise, such writing or
agreement shall be ineffective for purposes of this
provision). By way of example, if (C) the total unpaid
principal balance of all loans that are subject to the
Warehouse Agreement on May 1, 2003 is $475,000,000 and (D)
through an e-mail from the CFO of Parent to the CFO of the
Acquired Division, Parent has agreed that for May 1, 2003 only
the Warehouse Limit for that day is $450,000,000, then the
weighted average coupon rate on the $475,000,000 outstanding
on May 1, 2003 shall be the interest rate payable by the
Acquired Division with respect to the excess Mortgage Loans
with unpaid principal balance of $25 million. Notwithstanding
the foregoing, for the period from (E) the Initial Closing
Date to the date through and including April 18, 2003, if and
only to the extent that the unpaid principal balance of all
Mortgage Loans that are or were the subject of the Warehouse
Agreement exceeds $425,000,000, then the interest rate payable
by the Acquired Division under the Warehouse Agreement with
respect to such excess Mortgage Loans shall be deemed to be
the WAC Rate and (F) for the days of April 19, 20, 21 and 22,
no such excess shall be deemed to have existed (i.e., the
Applicable-Covered Rate and not the WAC Rate shall be the
applicable rate charged for such excess Mortgage Loans for
those four days).
o without limiting the generality of the foregoing, on any
Mortgage Loans delivered to Countrywide under the Countrywide
Early Purchase Program , the Applicable-Covered Rate (as
defined in the Warehouse Agreement) in lieu of the rate
charged to Seller under Section 7(a) of the Countrywide Early
Purchase Program (which is the sum of (i) the applicable SRP
Enhancement Percent plus (ii) the one month LIBOR rate);
2. Amendment of Exhibit B. Exhibit B of the Agreement shall be and
hereby is amended to add as a new sixth paragraph to Exhibit B the following:
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Notwithstanding anything in the immediately previous paragraph
to the contrary, the Acquired Division shall enter into that certain
Early Purchase Program Addendum to Loan Purchase Agreement with
Countrywide Home Loans, Inc. in an initial amount of $100,000,000 (the
"Countrywide Early Payment Program"). The Acquired Division will use
commercially reasonable efforts to use the financing available under
the Warehouse Agreement before submitting loans for sale under the
Countrywide Early Purchase Program. Purchaser hereby covenants and
agrees that the Acquired Division shall not submit for sale any
Mortgage Loans under the Countrywide Early Purchase Program unless at
the time in question the unpaid principal balance of all Mortgage Loans
subject to the Warehouse Agreement exceeds $420,000,000(or such lesser
amount as has been made available at that time to the Acquired Division
under the Warehouse Agreement less $5,000,000); provided that the
Purchaser shall not be deemed to have violated or breached this
covenant if the Executive Committee or the board of directors of Seller
specifically directs in writing the Acquired Division to utilize the
Countrywide Early Purchase Program notwithstanding the outstanding
balance under the Warehouse Agreement at the time in question.
3. Other Terms.
(a) Purchaser hereby acknowledges and agrees that the execution,
delivery and performance by Seller of the Countrywide Early Purchase Program
shall not be deemed to be a breach of any representation, warranty, covenant or
agreement on the part of Purchaser, Seller or Parent. Purchaser specifically
consents to and approves of the Countrywide Early Purchase Program.
(b) In addition to and without limiting the generality of the
provisions of Section 7.2 of the Agreement, but subject to the terms and
conditions set forth in the Agreement (other than those expressly amended by
this Amendment), Purchaser shall indemnify and hold Seller and Parent, and their
respective officers, directors, employees, agents and Affiliates (as defined in
the Agreement) harmless against and in respect of, and shall reimburse each
Indemnified Party (as defined in the Agreement) for, any and all Losses (as
defined in the Agreement) arising out of, resulting from or relating to any
breach or non-performance by the Acquired Division (through Seller) of any term,
condition or provision of the Countrywide Early Purchase Program and/or the
agreements and documents delivered in connection therewith. The foregoing
indemnification shall not be subject to the "indemnification cap" specified in
Section 7.3(c) of the Agreement and shall be subject to the four (4) year
limitations period specified in Section 7.3(b) of the Agreement. Notwithstanding
the foregoing, the foregoing indemnification shall not apply and shall have no
force and effect with respect to any particular indemnified event if the breach
or non-performance by the Acquired Division results directly from an action or
inaction on the part of the Acquired Division taken or not taken specifically at
the written direction of the Executive Committee or the board of directors of
Seller.
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4. No Other Terms Amended. Except to the extent expressly provided in
Section 1 of this Amendment, all terms of the Agreement shall remain in full
force and effect and unaffected by the terms of this Amendment.
5. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first written above.
MATRIX FINANCIAL SERVICES CORPORATION
By:______________________________
Name:
Title:
MATRIX CAPITAL BANK
By:______________________________
Name:
Title:
AMPRO MORTGAGE CORPORATION
By:______________________________
Name:
Title:
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