Exhibit 10.54
AMENDMENT NO. 1 TO
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment"), dated as of April 29, 2005
amends the Amended and Restated Note Purchase Agreement, dated as of April 16,
2004 (the "Agreement"), among Option One Owner Trust 2001-1A, a Delaware
statutory trust (the "Company"), Greenwich Capital Financial Products, Inc. a
Delaware corporation (the "Purchaser") and Option One Loan Warehouse
Corporation, a California corporation (the "Depositor").
RECITALS
WHEREAS, the parties hereto have entered into the Agreement;
WHEREAS, the parties hereto now wish to amend certain provisions in
the Agreement pursuant to Section 10.01 of the Agreement;
NOW, THEREFORE, in consideration of the promises and mutual
agreements contained herein, the parties hereto agree to amend the Agreement
pursuant to Section 10.01 of the Agreement and restate certain provisions
thereof as follows:
1. Defined Terms. Unless defined in this Amendment, capitalized
terms used in this Amendment (including the preamble) shall have the meaning
given such terms in the Agreement.
2. Amendment to Section 1.1 of the Agreement. The following defined
term in Section 1.1 of the Agreement are hereby deleted in their entirety and
substituted therefor the following:
"Maximum Note Principal Balance" means an amount equal to (i) the
Maximum Note Principal Balance as defined in the Pricing Side Letter (including
only such portion thereof that is included at the sole discretion of the Initial
Noteholder as is actually advanced and then outstanding), less (i) any
reductions pursuant to Section 2.06 of the Sale and Servicing Agreement, less
(ii) the aggregate outstanding principal balance of the Option One Owner Trust
2001-1B Mortgage-Backed Note issued by the Option One Owner Trust 2001-1B and
less (iii) the aggregate amount outstanding from time to time under any secured
loan or repurchase facility entered into by Greenwich, or its Affiliates, and
Option One Mortgage Corporation, or its Subsidiaries.
3. Amendment to Section 4.01(o) of the Agreement. Subsection (o) of
Section 4.01 of the Agreement is hereby deleted in its entirety and substituted
therefor with the following:
(o) Financial Covenants. The Loan Originator and the Servicer shall
be in compliance with the Financial Covenants.
For the avoidance of doubt, this Amendment shall not affect the
obligation of the Loan Originator to pay at least $1,250,000 in release fees
earned during the period from July 8, 2002 to July 7, 2003.
4. Amendment to Section 5.01(g) of the Agreement. Subsection (g) of
Section 5.01 of the Agreement is hereby deleted in its entirety and substituted
therefor with the following:
(g) The Issuer is not in violation of its organizational documents
or in default under any agreement, indenture or instrument the effect of which
violation or default would be materially adverse to the Issuer or the
transactions contemplated by the Basic Documents. The Issuer is not a party to,
bound by or in breach or violation of any indenture or other agreement or
instrument, or subject to or in violation of any statute, order or regulation of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over the Issuer that materially and adversely affects, or may in
the future materially and adversely affect (i) the ability of the Issuer to
perform its obligations under any of the Basic Documents to which it is a party
or (ii) the business, operations, financial condition, properties, assets or
prospects of the Issuer.
5. Amendment to Section 5.01(h) of the Agreement. Subsection (h) of
Section 5.01 of the Agreement is hereby deleted in its entirety and substituted
therefor with the following:
(h) There are no actions or proceedings against, or investigations
of, the Issuer pending, or, to the knowledge of the Issuer threatened, before
any Governmental Authority, court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of any of the Basic Documents, or (ii)
seeking to prevent the issuance of the Purchased Note or the consummation of any
of the transactions contemplated by the Basic Documents or the Purchased Note,
or (iii) that, if adversely determined, could materially and adversely affect
the validity or enforceability of, or the performance by the Issuer of its
respective obligations under, any of the Basic Documents to which it is a party
or (iv) seeking to affect adversely the income tax attributes of the Purchased
Note.
5. Amendment to Section 8.05 of the Agreement. Section 8.05 of the
Agreement is hereby deleted in its entirety and substituted therefor with the
following:
SECTION 8.05. Confidentiality. Each of the Purchaser, the Issuer and
the Depositor shall hold in confidence all Confidential Information and shall
not, at any time hereafter, use, disclose or divulge any such information,
knowledge or data to any Person except:
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(a) Information which at the time of disclosure is a part of the
public knowledge or literature and readily accessible;
(b) Information as required to be disclosed by a Governmental
Authority;
(c) Disclosure to a Person that has entered into a confidentiality
agreement, acceptable to the Purchaser, the Issuer and the
Depositor; or
(d) Information that is deemed by the Purchaser reasonably
necessary to disclose in connection with its exercise of any
rights or remedies under the Basic Documents.
Nothing herein shall, however, prevent the ultimate corporate parent of the
Depositor, for so long as it shall be a company whose securities are registered
under the Securities Act, from disclosing the terms of, and filing with the
Securities and Exchange Commission copies of, and disseminating to other Persons
following such filing, the Basic Documents. All such disclosures are expressly
approved by all parties hereto.
6. Condition to Effectiveness. As a condition to the effectiveness
of this Amendment, the Purchaser shall have given its consent.
7. Effect of Amendment. Upon the execution of this Amendment and the
attached consent of Purchaser, the Agreement shall be modified and amended in
accordance herewith and the respective rights, limitations, obligations, duties,
liabilities and immunities of each party to the Agreement shall hereafter be
determined, exercised and enforced subject in all respects to such modifications
and amendments, and all the terms and conditions of this Amendment shall be and
be deemed to be part of the terms and conditions of the Agreement for any and
all purposes as of the date first set forth above. The Agreement, as amended
hereby, is hereby ratified and confirmed in all respects.
8. The Agreement in Full Force and Effect as Amended. Except as
specifically amended hereby, all the terms and conditions of the Agreement shall
remain in full force and effect and, except as expressly provided herein, the
effectiveness of this Amendment shall not operate as, or constitute a waiver or
modification of, any right, power or remedy of any party to the Agreement. All
references to the Agreement in any other document or instrument shall be deemed
to mean the Agreement as amended by this Amendment.
9. Counterparts. This Amendment may be executed by the parties in
several counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. This Amendment
shall become effective when counterparts hereof executed on behalf of such party
shall have been received.
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10. Governing Law. This Amendment shall be construed in accordance
with and governed by the laws of the State of New York applicable to agreements
made and to be performed therein.
IN WITNESS WHEREOF, the Company, the Purchaser and the Depositor
have caused this Amendment to be duly executed by their respective officers,
effective as of the day and year first above written.
OPTION ONE OWNER TRUST 2001-1A,
as Company
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By: /s/ Mary Kay Pupillo
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Name: Mary Kay Pupillo
Title: Assistant Vice President
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
as the Purchaser
By: /s/ Anthony Palmisano
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Name: Anthony Palmisano
Title: Managing Director
OPTION ONE LOAN WAREHOUSE CORPORATION
as the Depositor
By: /s/ David S. Wells
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Name: David S. Wells
Title: Assistant Secretary
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