Exhibit 10.11
AMENDMENT NUMBER SIX
to the
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT,
dated as of November 25, 2003
among
OPTION ONE OWNER TRUST 2001-2,
OPTION ONE LOAN WAREHOUSE CORPORATION
and
BANK OF AMERICA, N.A.
This AMENDMENT NUMBER SIX (this "Amendment") is made and is effective
as of this 30th day of September, 2005 (the "Effective Date"), among Option One
Owner Trust 2001-2 (the "Issuer"), Option One Loan Warehouse Corporation (the
"Depositor") and Bank of America, N.A. ("BofA", and in its capacity as
Purchaser, the "Purchaser") to the Amended and Restated Note Purchase Agreement,
dated as of November 25, 2003, as amended (the "Note Purchase Agreement"), among
the Issuer, the Depositor and the Purchaser.
RECITALS
WHEREAS, the Issuer has requested that the Purchaser agree to amend
the Note Purchase Agreement to increase the Maximum Note Principal Balance from
$3,000,000,000 to $3,500,000,000 and the Purchaser has agreed to make such
amendments, 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 the mutual covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Any capitalized terms used but not otherwise
defined herein shall have the respective meanings set forth in the Note Purchase
Agreement.
SECTION 2. Amendment. As of the Effective Date, the definition of
"Maximum Note Principal Balance" in Section 1.01 is hereby deleted in its
entirety and replaced with the following:
"Maximum Note Principal Balance" means, an amount equal to
$3,500,000,000, less any reductions pursuant to Section 2.06 of the Sale and
Servicing Agreement.
SECTION 3. Representations. To induce the Purchaser to execute and
deliver this Amendment, each of the Issuer and the Depositor hereby represents
to the Purchaser that as of the date hereof, after giving effect to this
Amendment, (a) all of its respective representations and warranties in the Note
Purchase Agreement 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
Note Purchase Agreement.
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SECTION 4. Fees and Expenses. The Issuer and the Depositor jointly and
severally covenant to pay as and when billed by the Purchaser 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 Purchaser, (ii) all reasonable fees and expenses of the Indenture
Trustee and Owner Trustee and their counsel and (iii) all reasonable fees and
expenses of the Custodian and its counsel.
SECTION 5. Limited Effect. Except as expressly amended and modified by
this Amendment, the Note Purchase Agreement shall continue in full force and
effect in accordance with its terms. Reference to this Amendment need not be
made in the Note Purchase Agreement or any other instrument or document executed
in connection therewith, or in any certificate, letter or communication issued
or made pursuant to, or with respect to, the Note Purchase Agreement, any
reference in any of such items to the Note Purchase Agreement being sufficient
to refer to the Note Purchase Agreement as amended hereby.
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 in any number of separate counterparts, each of which when so
executed 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 2001-2 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 document.
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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 2001-2
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
By: /s/ CR Fulton
------------------------------------
Name: Charles R. Fulton
Title: Assistant Secretary
BANK OF AMERICA, N.A.
By: /s/ Christopher G. Young
------------------------------------
Name: Christopher G. Young
Title: Vice President
[Signature Page to Amendment Six to the Amended and Restated Note
Purchase Agreement]