Exhibit 10.8
OMNIBUS AMENDMENT NO. 1
This Omnibus Amendment No. 1 (the "Amendment"), dated as of September 8,
2005, among OPTION ONE OWNER TRUST 2002-3, a Delaware statutory trust, UBS REAL
ESTATE SECURITIES INC. (f/k/a UBS Warburg Real Estate Securities Inc.), a
Delaware corporation, and OPTION ONE MORTGAGE CORPORATION, a California
corporation, amends the following agreements (the "Amended Agreements"):
(A) AMENDED AND RESTATED NOTE PURCHASE AGREEMENT, dated as of March 18,
2005, among Option One Owner Trust 2002-3 (the "Company"), UBS Real Estate
Securities Inc. (the "Note Purchaser"), and Option One Mortgage Corporation
("OOMC", or the "Loan Originator") (the "Note Purchase Agreement"); and
(B) PRICING SIDE LETTER, dated as of March 18, 2005, among the Company, the
Note Purchaser and the Loan Originator (the "Pricing Side Letter").
This Amendment shall constitute Amendment No. 1 to the Note Purchase
Agreement and Amendment No. 1 to the Pricing Side Letter.
A. Amendment to the Note Purchase Agreement
1. The definition of "Commitment Term" in Section 1.1 of the Note Purchase
Agreement is hereby deleted in its entirety and replaced with the
following:
"'Commitment Term'" shall mean that period of time commencing on
September 9, 2005 and continuing until the earlier of (i) September 8,
2006 (or, if applicable, such later date as may be in effect from time
to time pursuant to Section 2.10(d)), and (ii) the date upon which the
Obligations are declared to be, or become, due and payable in full in
accordance with Article X."
B. Amendment to the Pricing Side Letter
1. The section heading numbers following Section 2 are hereby renumbered as
follows: "Section 2 - Removal of Mortgage Loans from the Facility" shall
read "Section 3 - Removal of Mortgage Loans from the Facility"; "Section 3
- Negative Pledge of Hedging Agreements" shall read "Section 4 - Negative
Pledge of Hedging Agreements"; "Section 4 - Confidential Information" shall
read "Section 5 - Confidential Information"; "Section 5 - No Recourse"
shall read "Section 6 - No Recourse"; and "Section 6 - General Provisions"
shall read "Section 7 - General Provisions".
2. Section 2 of the Pricing Side Letter is hereby deleted in its entirety and
replaced with the following:
"Section 2 - Minimum Usage
The Company and OOMC hereby acknowledge that the Note Purchaser is
entering into this facility with the understanding that the Note
Purchaser expects to receive at least $6,563,744.82 (the "Minimum
Usage Fee") in spread ("spread" being the cumulative dollar amount of
that portion of the Note interest represented by the Margin) during
the Commitment Term (i.e., on or prior to September 8, 2006). If, by
the end of the Commitment Term, the total spread paid to the Note
Purchaser is less than the Minimum Usage Fee, then the Company and
OOMC, jointly and severally, shall pay to the Note Purchaser, on the
last day of the Commitment Term, an amount equal to such shortfall."
C. General Provisions
1. Defined Terms. Unless defined in this Amendment, capitalized terms used in
this Amendment shall have the meaning given such terms in the Amended
Agreements.
2. Expenses. The Loan Originator agrees to pay and reimburse the Note
Purchaser for all of the reasonable out-of pocket costs and expenses
incurred by the Note Purchaser in connection with the preparation,
execution and delivery of this Amendment, including, without limitation,
the reasonable fees and disbursements of Dewey Ballantine LLP, counsel to
the Note Purchaser.
3. Liability. It is expressly understood and agreed by the parties that (a)
this Amendment is executed and delivered by Wilmington Trust Company, not
individually or personally, but solely as Owner Trustee, in the exercise of
the powers and authority conferred and vested in it, pursuant to the Trust
Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Company is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company
but is made and intended for the purpose of binding the Company with
respect thereto, (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressly or impliedly contained
herein, and the right to claim any and 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 Company or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the Company hereunder or under any other related documents.
Nothing expressed or implied in the preceding sentence, however, shall
alter the terms and conditions of Section 7.1 of the Trust Agreement.
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4. Condition to Effectiveness. As a condition to the effectiveness of this
Amendment, the Note Purchaser shall have given its consent.
5. Effect of Amendment. Upon the execution of this Amendment and the attached
consent of Note 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 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.
6. The Amended Agreements in Full Force and Effect as Amended. Except as
specifically amended hereby, all the terms and conditions of the Amended
Agreements 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 Amended Agreements. All references to the Amended
Agreements in any other document or instrument shall be deemed to mean the
Amended Agreements as amended by this Amendment.
7. 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.
8. 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.
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IN WITNESS WHEREOF, the parties hereto 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 2002-3,
as the Company
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
UBS REAL ESTATE SECURITIES INC.,
as the Note Purchaser
By: /s/ Robert Carpenter
------------------------------------
Name: Robert Carpenter
Title: Executive Director
By: /s/ George A. Mangiaracina
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Name: George A. Mangiaracina
Title: Managing Director
OPTION ONE MORTGAGE CORPORATION
as the Loan Originator
By: /s/ CR Fulton
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Name: Charles R. Fulton
Title: Vice President
[SIGNATURE PAGE TO OMNIBUS AMENDMENT NO. 1]