Exhibit 10.12.1


 


AMENDMENT


 


AMENDMENT
(this “Amendment”), dated as of April 29, 2005, by and among
MID-STATE TRUST IX, as borrower (the “Borrower”), YC SUSI TRUST, as a lender (a
“Lender”), ATLANTIC ASSET SECURITIZATION CORP., as a lender (a “Lender”, and together
with YC SUSI Trust, the “Lenders”), WACHOVIA BANK, NATIONAL ASSOCIATION, as
custodian/collateral agent (the “Collateral Agent”), BANK OF AMERICA, NATIONAL
ASSOCIATION, as agent (the “Agent”), a managing agent (a “Managing Agent”) and
a bank investor (a “Bank Investor”), CALYON NEW YORK BRANCH, as a managing
agent (a “Managing Agent”, and together with Bank of America, National
Association, the “Managing Agents”) and a bank investor (a “Bank Investor”) and
the other signatories hereto.


 


Capitalized terms
used and not defined in this Amendment or in any of the Operative Documents
shall have the meanings given such terms in Annex A to the Amended and Restated
Variable Funding Loan Agreement, dated as of November 19, 2004, as amended from
time to time (the “Loan Agreement”), among the Lenders, the Borrower, the
Collateral Agent, the Agent, each Bank Investor and the Managing Agents.


 


PRELIMINARY STATEMENTS


 


WHEREAS, each
of the signatories hereto is party to one or more of the Operative Documents;
and


 


WHEREAS, each
of the signatories hereto acknowledges and agrees that the Net Investment does
not exceed $200,000,000 and therefore does not exceed the Maximum Net
Investment as required by Section 2.1(a) of the Loan Agreement; and


 


WHEREAS, each
of the signatories hereto wish to amend certain of the Operative Documents, as
hereinafter provided;


 


NOW,
THEREFORE, in consideration of the mutual covenants contained herein and in the
Loan Agreement, and other good and valuable consideration, the receipt and
adequacy of which is hereby expressly acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:


 


SECTION 1.                                Amendments to the Loan Agreement.  The Loan Agreement is hereby amended as
follows:


 


(a)                                  Section 2.3(a) is amended by deleting
clause (i) therein in its entirety, deleting the reference to “(ii)” therein
and replacing it with “(i),” deleting the reference to “other” in such newly
designated clause “(i)” and deleting the reference to “(iii)” therein and
replacing it with “(ii).”


 


(b)                                 Section 4.2(m) is amended by
deleting the reference to “$250,000,000” therein and replacing it with “$125,000,000.”


 


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(c)                                  The references to “Group
Commitment” on the signature pages are amended by deleting the references to “$225,000,000”
and “$175,000,000” therein and replacing each with “$100,000,000.”


 


(d)                                 The definition of “Eligible
Account” in Annex A is amended by (i) deleting clause (aa) therein and
replacing it with the following:


 


“(aa)                      which
Account (i) has been originated in compliance with all applicable laws,
including, but not limited to, all applicable anti-predatory and abusive
lending laws, (ii) is not a High Cost Loan or Covered Loan, as applicable (as
such terms are defined in the then current Standard & Poor’s LEVELS®
Glossary, which is now Version 5.6b Revised, Appendix E), (iii) if originated
on or after October 1, 2002 through March 6, 2003, is not subject to the
Georgia Fair Lending Act; and (iv) is not subject to the provisions of the Home
Ownership and Equity Protection Act of 1994, as amended, nor is such Account a “high
cost” or “predatory” Account under any federal, state or local laws or
regulations;”


 


and (ii)
deleting clause (jj) therein in its entirety.


 


(e)                                  The definition of “Facility
Limit” in Annex A is amended by deleting the reference to “$400,000,000”
therein and replacing it with “$200,000,000.”


 


(f)                                    The definition of “Maximum Net
Investment” in Annex A is amended by deleting the reference to “$400,000,000” therein  and replacing it with “$200,000,000.”


 


(g)                                 The definition of “Scheduled
Termination Date” in Annex A is amended by deleting the reference to “April 29,
2005” therein and replacing it with “January 31, 2006.”


 


SECTION 2.                                Conditions Precedent.  This Amendment shall become effective, as of
the date hereof, on the date on which the following conditions precedent shall
have been fulfilled:


 


(a)                                  This Amendment. Each Managing Agent shall have
received counterparts of this Amendment, duly executed by each of the parties
hereto.


 


(b)                                 Variable Funding Notes.  Each Managing Agent shall surrender its
Variable Funding Note in exchange for a new Variable Funding Note reflecting
the amended Group Commitment for the related Group.


 


(c)                                  Additional Documents. Each Managing Agent shall have
received all additional approvals, certificates, documents, instruments and
items of information as each Managing Agent may reasonably request and all of
the foregoing shall be in form and substance reasonably satisfactory to each Managing
Agent.


 


(d)                                 Legal Matters.  All instruments and legal and corporate
proceedings in connection with the transactions contemplated by this Amendment
shall be satisfactory in form and substance to each Managing Agent and each
Managing Agent’s counsel and the 


 


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fees and expenses of counsel to each Managing
Agent incurred in connection with the execution of this Amendment and the
transactions contemplated hereby shall have been paid in full.


 


SECTION 3.                                Severability of Provisions.  Any provision of this Amendment which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.


 


SECTION 4.                                Captions.  The captions in this Amendment are for
convenience of reference only and shall not define or limit any of the terms or
provisions hereof.


 


SECTION 5.                                Agreement to Remain in Full
Force and Effect.  Except as amended hereby, the Loan Agreement
shall remain in full force and effect and is hereby ratified, adopted and
confirmed in all respects.  All
references in the Loan Agreement to “herein,” or words of like import, and all
references to the Loan Agreement in any agreement or document shall hereafter
be deemed to refer to the Loan Agreement as amended hereby.


 


SECTION 6.                                GOVERNING LAW.  EXCEPT WITH RESPECT TO SECTION 8 AND ANY
OTHER SECTIONS HEREIN TO THE EXTENT THAT THEY AFFECT THE TRUST AGREEMENT, WHICH
SECTIONS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, THIS AMENDMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


SECTION 7.                                Execution in Counterparts.  This Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same Amendment.


 


SECTION 8.                                Limitation of 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 trustee of the
Trust, in the exercise of the powers and authority conferred and vested in it
under the Trust Agreement, (b) each of the representations, undertakings and
agreements herein or therein made on the part of the Trust 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 only the
Trust and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any indebtedness or expenses of the Trust
or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Amendment.


 


SECTION 9.                                Representations and Warranties.  The Borrower hereby certifies that (i) the
representations and warranties made by it in Section 3.1 of the Loan Agreement
are true and correct as of the date hereof, as though made on and as of the
date hereof and (ii) as of the date hereof, there is no Event of Default or
event which, with the passage of time of the giving of notice, could result in
an Event of Default.


 


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SECTION 10.                          Waiver of Notice.  Each of the parties hereto hereby waives any
notice in connection with the execution and delivery of this Amendment.


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Amendment to be executed as of the
date and year first above written.


 


	
   

  	
  MID-STATE TRUST IX,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Wilmington Trust Company, not in its

  individual capacity but solely as Owner Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  YC SUSI TRUST,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bank of America, National Association,

  as Administrative Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ATLANTIC ASSET SECURITIZATION CORP.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Calyon New York Branch,

  as Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
								



 


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  BANK OF AMERICA, NATIONAL ASSOCIATION

  
	
   

  	
  as Agent, a Managing Agent and Bank Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Group Commitment: $100,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CALYON NEW YORK BRANCH,

  
	
   

  	
  as a Managing Agent and Bank Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Group Commitment: $100,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION,
  

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
							



 


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  MID-STATE HOMES, INC.,

  
	
   

  	
  as Depositor and Master Servicer

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMBAC ASSURANCE CORPORATION,

  
	
   

  	
  as Surety Provider and Controlling Party

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


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