Exhibit 10.13
AMENDMENT NUMBER THREE
to the
SECOND AMENDED AND RESTATED SALE AND SERVICING AGREEMENT,
Dated as of March 8, 2005,
among
OPTION ONE OWNER TRUST 2001-2,
OPTION ONE LOAN WAREHOUSE CORPORATION,
OPTION ONE MORTGAGE CORPORATION
and
XXXXX FARGO BANK N.A.
This AMENDMENT NUMBER THREE (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"), Option One Mortgage Corporation (the "Loan
Originator" and the "Servicer") and Xxxxx Fargo Bank N.A., as Indenture Trustee
(the "Indenture Trustee"), to the Second Amended and Restated Sale and Servicing
Agreement, dated as of March 8, 2005, as amended (the "Sale and Servicing
Agreement"), among the Issuer, the Depositor, the Loan Originator, the Servicer
and the Indenture Trustee.
RECITALS
WHEREAS, the parties hereto desire to amend the Sale and Servicing
Agreement to temporarily increase the sublimit for Wet Funded Loans, as more
expressly set forth herein.
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. Amendment. As of the Effective Date, the following
amendments shall be in full force and effect.
(a) Section 1.01 of the Sale and Servicing Agreement is hereby amended by
deleting in its entirety clause (ix) in the definition of "Collateral
Value" and replacing such clause with the following:
(ix) for the period from September 30, 2005 to and including October
7, 2005, the aggregate Collateral Value of Loans that are Wet Funded
Loans may not exceed 60% of the Maximum Note Principal Balance and
after such period, the aggregate Collateral Value of the Loans that
are Wet Funded Loans may not exceed 50% of the Maximum Note Principal
Balance;
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.
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 (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
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
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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/ Xxxx Xxx Xxxxxxx
------------------------------------
Name: Xxxx Xxx Xxxxxxx
Title: Assistant Vice President
OPTION ONE LOAN WAREHOUSE
CORPORATION
By: /s/ XX Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
OPTION ONE MORTGAGE CORPORATION
By: /s/ XX Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK N.A., as Indenture
Trustee
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
[Signature Page to Amendment Three to the Second Amended and
Restated Sale and Servicing Agreement]
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