EXHIBIT 10.58
AMENDMENT NUMBER SIX
to the
INDENTURE,
dated as of April 1, 2001, and as amended and restated
through and including November 25, 2003
between
OPTION ONE OWNER TRUST 2001-1B
and
WELLS FARGO BANK, N.A.
This AMENDMENT NUMBER SIX (this "Amendment") is made and is effective
as of this 30th day of April, 2004, between Option One Owner Trust 2001-1B (the
"Issuer") and Wells Fargo Bank, N.A. (formerly known as Wells Fargo Bank
Minnesota, National Association), as Indenture Trustee (the "Indenture
Trustee"), to the Indenture dated as of April 1, 2001, and as amended and
restated through and including November 25, 2003 (the "Indenture"), between the
Issuer and the Indenture Trustee.
RECITALS
WHEREAS, the parties hereto desire to amend the Indenture subject to
the terms and conditions of this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and of the mutual covenants
herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Any terms capitalized but not otherwise
defined herein shall have the respective meanings set forth in the Indenture.
SECTION 2. Amendment. Section 1.01 of the Indenture is hereby amended
by deleting in its entirety the definition of "Maturity Date" and replacing it
with the following:
(a) Section 1.01 of the Indenture is hereby amended by deleting
the definition of "Maturity Date" in its entirety and replacing it with the
following definition:
"Maturity Date: means, with respect to the Notes, April 29, 2005.
SECTION 3. Representations. In order to induce the parties hereto to
execute and deliver this Amendment, the Issuer hereby represents to the
Indenture Trustee and the Noteholders that as of the date hereof, after giving
effect to this Amendment, (a) all of its respective representations and
warranties in the Indenture and the other Basic Documents are true and correct,
and (b) it is otherwise in full compliance with all of the terms and conditions
of the Indenture.
SECTION 4. Limited Effect. Except as expressly amended and modified by
this Amendment, the Indenture shall continue in full force and effect in
accordance with its terms. Reference to this Amendment need not be made in the
Indenture or any other instrument or document executed in connection therewith
or herewith, or in any certificate, letter or communication issued or made
pursuant to, or with respect to, the Indenture, any reference in any of such
items to the Indenture being sufficient to refer to the Indenture as amended
hereby.
SECTION 5. Fees and Expenses. The Issuer covenants to pay as and when
billed by the Initial Noteholder all of the reasonable out-of-pocket costs and
expenses incurred in connection with the transactions contemplated hereby and
in the other Basic Documents including, without limitation, (i) all reasonable
fees, disbursements and expenses of counsel to the Initial Noteholder and (ii)
all reasonable fees and expenses of the Indenture Trustee and its counsel.
SECTION 6. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS DOCTRINE APPLIED IN SUCH STATE.
SECTION 7. Counterparts. This Amendment may be executed by each of the
parties hereto on any number of separate counterparts, each of which shall be
an original and all of which taken together shall constitute one and the same
instrument.
SECTION 8. Limitation on Liability. It is expressly understood and agreed
by the parties hereto that (a) this Amendment is executed and delivered by
Wilmington Trust Company, not individually or personally, but solely as Owner
Trustee of Option One Owner Trust 2001-1B in the exercise of the powers and
authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Issuer is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Issuer, (c) nothing herein contained shall be construed as creating
any liability on Wilmington Trust Company, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Issuer under this Amendment or any other related documents.
[signature page follows]
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the day and
year first above written.
OPTION ONE OWNER TRUST 2001-1B
By: Wilmington Trust Company, not in its
individual capacity but solely as owner
trustee
By: /s/ Mary Kay Pupillo
--------------------------------------
Name: Mary Kay Pupillo
Title: Senior Financial Services Officer
WELLS FARGO BANK, N.A., as Indenture
Trustee
By: /s/ Amy Doyle
--------------------------------------
Name: Amy Doyle
Title: