Exhibit 10.70
AMENDMENT NUMBER SEVEN
to the
AMENDED AND RESTATED INDENTURE
between
OPTION ONE OWNER TRUST 2001-1A
and
WELLS FARGO BANK, N.A.
This AMENDMENT NUMBER SEVEN (this "Amendment") is made and is
effective as of this 28th day of April, 2006, between Option One Owner Trust
2001-1A (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 Amended and Restated Indenture dated as of November 25, 2003
(as amended, the "Indenture"), between the Issuer and the Indenture Trustee.
RECITALS
WHEREAS, the parties hereto desire to amend the Indenture to extend
the facility for an additional year and to revise certain events of default
subject to the terms and conditions of this Amendment Number Seven.
WHEREAS, the Indenture Trustee (as directed by the Noteholder), the
Noteholder, the Owner Trustee and the Indenture Trustee hereby waive the various
notice requirements in connection with this Amendment Number Seven set forth in
the Indenture and the Trust Agreement; and
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. Amendments. The Indenture is hereby amended as follows:
(a) 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:
"Maturity Date: means, with respect to the Notes, April 29, 2007."
(b) Section 5.01 of the Indenture is hereby amended by deleting in its
entirety clause (f) and replacing it with the following new clause (f) the
definition of "Maturity Date" and replacing it with the following:
(f) default by the Loan Originator in the payment of an amount in
excess of $1,000,000, if such payment default is not cured within two
(2) business days of Loan Originator's knowledge of such default, that
is then due and owing under any repurchase agreement, loan and
security agreement or other similar credit facility agreement or
derivative contract entered into by the Loan Originator and any third
party for borrowed funds or with a notional amount in excess of
$30,000,000 (each such agreement, a "Material Agreement"), including
any
payment default which entitles any party to require acceleration or
repayment of any indebtedness thereunder;
(c) Section 5.01 of the Indenture is hereby amended by adding "; or" to the
end of clause (j) in lieu of the "." and adding the following new clause (k)
immediately thereafter:
(k) a material default by the Loan Originator in the observance or
performance of any covenant or agreement (other than a default
specified in clause (f) above) under a Material Agreement (as defined
above in clause (f)), if such default is not cured (i) within sixty
(60) business days of Loan Originator's knowledge of such default, if
such default involves a failure to deliver financial statements or
(ii) within thirty (30) business days of Loan Originator's knowledge
of such default, if such default involves an event other than a
failure to deliver financial statements. For the avoidance of doubt,
any default which causes any party to actually accelerate or demand
repayment of any indebtedness or otherwise exercise remedies under a
Material Agreement shall be an Event of Default hereunder for which no
cure period shall apply; provided that such acceleration, demand or
exercise of rights is continuing;
SECTION 3. Direction and Instruction.
(a) The Issuer, by signing this Amendment Number Seven, hereby directs
and instructs the Indenture Trustee to enter into this Amendment Number Seven
pursuant to Section 9.02 of the Indenture. The Issuer, the Owner Trustee and the
Indenture Trustee hereby acknowledge and agree that the direction and
instruction set forth in the previous sentence shall constitute the Issuer Order
required by Section 9.02 of the Indenture. The Indenture Trustee hereby waives
receipt of an Opinion of Counsel required pursuant to Section 9.03 of the
Indenture.
(b) Option One Loan Warehouse Corporation, as holder of 100%
Percentage Interests in the Trust Certificate issued pursuant to the Trust
Agreement, hereby directs and instructs Wilmington Trust Company under the Trust
Agreement to execute this Amendment Number Seven in its capacity as Owner
Trustee and on behalf of the Trust, and agrees that Wilmington Trust Company is
covered by the fee and indemnification provisions of the Trust Agreement in
connection with this request.
SECTION 4. Consent and Waiver. The Noteholder, as the sole Noteholder
of 100% of the Notes issued under the Indenture, hereby consents to this
Amendment Number Seven, without regard to any adverse effect the substance of
this Amendment Number Eight may have on the Notes, and the Noteholder waives the
requirement under Section 9.02 of the Indenture that the Indenture Trustee
receive an Opinion of Counsel for the benefit of the Noteholder to the effect
that this Amendment Number Seven will not have a material adverse effect on the
Notes. The Indenture Trustee and the Noteholder hereby waive the requirement
under Section 9.02 of the Indenture that the Indenture Trustee provide the
Noteholder with a notice prepared by the Issuer setting forth the substance of
this Amendment Number Seven. The Owner Trustee, the Owner and the Noteholder
hereby waive the requirement under Section 4.1(a)(iii) of the Trust Agreement
that the Owner Trustee shall have provided thirty days' prior written
notification to the Owner and the Noteholder of the substance of this Amendment
Number Seven.
SECTION 5. Acknowledgement. The parties hereto acknowledge and agree
that this Amendment Seven shall constitute a Supplemental Indenture within the
meaning of Article IX of the Indenture.
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SECTION 6. 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 7. Ratification; Limited Effect. Except as expressly amended
hereby, the Indenture is in all respects ratified and confirmed and all the
terms, conditions and provisions thereof shall remain in full force and effect.
This Amendment Number Seven shall form a part of the Indenture for all purposes,
and every Holder heretofore or hereafter authenticated and delivered shall be
bound hereby. The Trustee makes no representation or warranty as to the validity
or sufficiency of this Amendment Number Seven. Reference to this Amendment
Number Seven 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 8. Fees and Expenses. The Issuer covenants to pay as and when
billed by the 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 9. 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 (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
SECTION 10. 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 11. 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 2001-1A 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]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by then duly authorized officers as of the day and
year first above written
OPTION ONE OWNER TRUST 2001-1A
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
WELLS FARGO BANK, N A, as Indenture
Trustee
By: /s/ Illegible
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The undersigned certifies that it is the holder of 100% of the Notes issued by
the Issuer under the Indenture, and hereby consents to this Amendment Number
Seven
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC., as Noteholder
By: /s/ Illegible
---------------------------------
Name:
-------------------------------
Title:
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The undersigned certifies that it is the holder of 100% of Percentage Interests
in the Trust Certificate issued pursuant to the Trust Agreement, and hereby
consents to Sections 3 and 4 of this Amendment Number Seven
OPTION ONE LOAN WAREHOUSE
CORPORATION, as Loan Originator
By: /s/ Philip Laren
---------------------------------
Name: Philip Laren
Title: Vice President
The undersigned hereby consents to Sections 3 and 4 of this Amendment Number
Seven
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
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