Exhibit 10.12
AMENDMENT NUMBER TWO
to the
AMENDED AND RESTATED SALE AND SERVICING AGREEMENT,
Dated as of November 25, 2003,
among
OPTION ONE OWNER TRUST 2001-2,
OPTION ONE LOAN WAREHOUSE CORPORATION,
OPTION ONE MORTGAGE CORPORATION
and
WELLS FARGO BANK N.A.
This AMENDMENT NUMBER TWO (this "Amendment") is made and is effective
as of this 17th day of December, 2004, among Option One Owner Trust 2001-2 (the
"Issuer"), Option One Loan Warehouse Corporation (the "Depositor"), Option One
Mortgage Corporation (the "Loan Originator" and the "Servicer") and Wells Fargo
Bank N.A., as Indenture Trustee (the "Indenture Trustee"), to the Amended and
Restated Sale and Servicing Agreement, dated as of November 25, 2003 (as
amended, the "Sale and Servicing Agreement"), among the Issuer, the Depositor,
the Loan Originator, the Servicer and the Indenture Trustee, as otherwise
amended.
RECITALS
WHEREAS, the parties hereto desire to amend the Sale and Servicing
Agreement 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 terms capitalized but not otherwise
defined herein shall have the respective meanings set forth in the Sale and
Servicing Agreement.
SECTION 2. Amendments. Effective as of December 17, 2004 the following
amendments shall be in full force and effect.
(i) Section 1.01 of the Sale and Servicing Agreement is hereby amended by
deleting in its entirety clause (a) in the definition of "Financial
Covenants" and replacing such definition with the following:
(a) Option One must maintain a minimum "Tangible Net Worth"
(defined and determined in accordance with GAAP and exclusive of (i)
any loans outstanding to any officer or director of Option One or its
Affiliates (ii) any intangibles (other than originated or purchased
servicing rights) and (iii) any receivables from H&R Block) of $425
million as of any day;
(ii) Section 1.01 of the Sale and Servicing Agreement is hereby amended by
deleting clause (b) in its entirety and replacing it with the
following:
(b) Option One must maintain a ratio of 1.0 or greater at any
time pursuant to the Capital Adequacy Test, attached as Exhibit H
hereto.
(iii) Section 1.01 of the Sale and Servicing Agreement is hereby amended by
deleting the number "100%" in clause (c) of the definition of
"Financial Covenants", of the third line thereof and replacing it with
"91%".
(iv) Section 1.01 of the Sale and Servicing Agreement is hereby amended by
deleting the number "80%" in clause (c) of the definition of
"Financial Covenants", of the third line thereof and replacing it with
"90%".
(v) Section 1.01 of the Sale and Servicing Agreement is hereby amended by
adding the following after clause (d) of the definition of "Financial
Covenants":
(e) Option One must maintain a minimum "Net Income" (defined and
determined in accordance with GAAP) of at least $1 based on the total
of the current quarter combined with the previous three quarters.
(vi) Schedule One to this Amendment shall be attached as Exhibit H of the
Sale and Servicing Agreement.
SECTION 3. Representations. In order to induce the parties hereto to
execute and deliver this Amendment, each of the Issuer, the Depositor and the
Loan Originator hereby jointly and severally represents to the other parties
hereto 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
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 Sale and Servicing Agreement.
SECTION 4. Limited Effect. Except as expressly amended and modified by
this Amendment, the Sale and Servicing Agreement shall continue in full force
and effect in accordance with its terms. Reference to this Amendment need not be
made in the Sale and Servicing Agreement 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 Sale and
Servicing Agreement, any reference in any of such items to the Sale and
Servicing Agreement being sufficient to refer to the Sale and Servicing
Agreement as amended hereby.
SECTION 5. Fees and Expenses. The Issuer and the Depositor jointly and
severally covenant 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, (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.
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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 2001-2 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 documents.
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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
OPTION ONE MORTGAGE CORPORATION
By: /s/ CR Fulton
------------------------------------
Name: Charles R. Fulton
Title: Vice President
WELLS FARGO BANK N.A., as Indenture
Trustee
By: /s/ Reid Denny
------------------------------------
Name: Reid Denny
Title: Vice President
[Signature Page to Amendment Two to the Amended and Restated
Sale and Servicing Agreement]
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SCHEDULE ONE
CAPITAL ADEQUACY TEST
*For each field multiply the HRB% by the Balance Sheet Amount for
Required Capital
HRB TEST BALANCE SHEET REQUIRED CAPITAL
-------- ------------- ----------------
Unrestricted Cash and Equivalents 0%
Restricted Cash 0%
Loans Held for Sale 9%
Servicing Advances 10%
Beneficial Interests in trusts 10%
Subprime Mortgage NIM Residual Interest 60%
Real Estate Held for Sale 10%
Furniture and Equipment 0%
Mortgage Servicing Rights 25%
Prepaid Expenses and Other Assets 10%
Accrued interest receivable 10%
Receivable from H&R Block 0%
Intangibles and goodwill 100%
Deferred Tax Assets 10%
Derivative Assets 10%
TOTAL REQUIRED CAPITAL
Total Owners Equity on Balance Sheet Date
Less: Receivables from H&R Block
Adjusted Net Worth
Adjusted Net Worth divided by Required Capital = Ratio for Capital Adequacy Test
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