EXHIBIT 10.64
EXECUTION COPY
AMENDMENT NO. 2
TO
SALE AND SERVICING AGREEMENT
This AMENDMENT NO. 2 (the "Amendment") dated as of August 24, 2004,
to the Sale and Servicing Agreement dated as of August 8, 2003 (as amended,
supplemented or otherwise modified hereby and from time to time hereafter, the
"Sale and Servicing Agreement") by and among Option One Owner Trust 2003-4 (the
"Issuer"), Option One Mortgage Corporation ("OOMC"), in its capacity as loan
originator (in such capacity, the "Loan Originator") and as servicer (in such
capacity, the "Servicer"), Option One Loan Warehouse Corporation (the
"Depositor") and Wells Fargo Bank Minnesota, National Association, as indenture
trustee (the "Indenture Trustee"). Capitalized terms used herein but not
specifically defined herein shall have the meanings given to such terms in the
Sale and Servicing Agreement.
PRELIMINARY STATEMENTS:
(1) The Issuer, OOMC, as the Servicer and as the Loan Originator,
the Depositor and the Indenture Trustee are parties to the Sale and Servicing
Agreement.
(2) The Issuer has requested that the Note Purchase Agreement be
amended to increase the Maximum Note Principal Balance and the Majority
Noteholder has consented to such increase.
(3) In consideration of the mutual agreements contained herein, and
for other valuable consideration, receipt of which is hereby acknowledged, the
parties hereto have agreed to amend the Sale and Servicing Agreement as set
forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment. Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2 hereof, clause
(b)(l) of the definition of "Nonutilization Fee" set forth in Section 1.01 of
the Sale and Servicing Agreement is hereby restated in its entirety to read "(1)
the product of 1.02 and the Maximum Note Principal Balance in effect during such
month".
SECTION 2. Conditions of Effectiveness. This Amendment shall become
effective as of the date hereof upon the execution hereof by all of the parties
hereto and the execution and delivery of the Consent to Amendment of Sale and
Servicing Agreement attached hereto.
SECTION 3. Representations and Warranties. Each of the parties hereto
represents and warrants that this Amendment and the Sale and Servicing
Agreement, as amended by this Amendment, constitute legal, valid and binding
obligations of such Person enforceable against such Person in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally and
general equitable principles.
SECTION 4. Reference to and the Effect on the Sale and Servicing
Agreement.
(a) On and after the effective date of this Amendment, each
reference in the Sale and Servicing Agreement to "this Agreement", "hereunder",
"hereof, "herein" or words of like import referring to the Sale and Servicing
Agreement and each reference to the Sale and Servicing Agreement in any
certificate delivered in connection therewith, shall mean and be a reference to
the Sale and Servicing Agreement as amended hereby.
(b) Each of the parties hereto hereby agrees that, except as
specifically amended above, the Sale and Servicing Agreement is hereby ratified
and confirmed and shall continue to be in full force and effect and enforceable,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors' rights
generally and general equitable principles.
SECTION 5. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement.
SECTION 6. Governing Law. This Amendment shall be construed in accordance
with, and governed by the laws of the State of New York, without giving effect
to its conflicts of law provisions.
-2-
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the day and year first above written.
OPTION ONE OWNER TRUST 2003-4,
as Issuer
By: Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
By: /s/ Mary Kay Pupillo
------------------------------------
Name: MARY KAY PUPILLO
Title: Assistant Vice President
OPTION ONE LOAN WAREHOUSE
CORPORATION, as Depositor
By: ____________________________________
Name:
Title:
OPTION ONE MORTGAGE CORPORATION, as
Loan Originator and as Servicer
By: ____________________________________
Name:
Title:
Signature Page
to
Amendment No. 2 to Sale and Servicing Agreement
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and year first above written.
OPTION ONE OWNER TRUST 2003-4,
as Issuer
By: Wilmington Trust Company, not in its
individual capacity, but solely as
Owner Trustee
BY: ____________________________________
Name:
Title:
OPTION ONE LOAN WAREHOUSE
CORPORATION, as Depositor
By: /s/ Charles R. Fulton
------------------------------------
Name: Charles R. Fulton
Title: Assistant Secretary
OPTION ONE MORTGAGE CORPORATION, as
Loan Originator and as Servicer
By: /s/ Charles R. Fulton
------------------------------------
Name: Charles R. Fulton
Title: Vice President
Signature Page
to
Amendment No. 2 to Sale and Servicing Agreement
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Indenture Trustee
By: /s/ Reid Denny
-----------------------------
Name: Reid Denny
Title: Vice President
Signature Page
to
Amendment No. 2 to Sale and Servicing Agreement
CONSENT TO AMENDMENT TO SERIES SUPPLEMENT
The undersigned, being the Majority Noteholder, hereby consents to
the terms and conditions of Amendment No. 2 to the Sale and Servicing Agreement
dated as of August 24, 2004 (the "Amendment"), to which this Consent is attached
and the execution thereof by the Issuer, the Depositor, OOMC and the Indenture
Trustee. Capitalized terms used in the preceding sentence shall have the
meanings given to such terms in the Amendment.
BANK ONE, N.A.
By: /s/ Daniel J. Clarke
------------------------------------
Name: Daniel J. Clarke, Jr.
Title: Managing Director
Signature Page
to
Consent to Amendment No. 2
to Sale and Servicing Agreement