exv10w13



 





Exhibit 10.13




OMNIBUS AMENDMENT AND CONSENT AGREEMENT




          This OMNIBUS AMENDMENT AND CONSENT AGREEMENT (the
“Amendment and Consent”) dated as of December 29, 2006 is by and among Option One Owner
Trust 2003-5 (the “Issuer”), Option One Mortgage Corporation (“OOMC”), in its capacity as loan
originator (in such capacity, the “Loan Originator”) and as servicer (in such capacity, the
“Servicer”), Option One Mortgage Capital Corporation (“Capital”), Option One Loan Warehouse
Corporation (the “Depositor”), Wells Fargo Bank, National Association (successor-in-interest to
Wells Fargo Bank Minnesota, National Association), as indenture trustee (the “Indenture Trustee”),
and Citigroup Global Markets Realty Corp. (the “Purchaser”). Capitalized terms used herein but not
specifically defined herein shall have the meanings given to such terms in the Sale and Servicing
Agreement (as defined below) or Indenture (as defined below).




PRELIMINARY STATEMENTS:




          A. The Issuer, OOMC, as the Servicer and as the Loan Originator, the
Depositor and the Indenture Trustee are parties to that certain Amended and Restated Sale and
Servicing Agreement dated as of November 12, 2004 (as amended, the “Sale and Servicing
Agreement”).




          B. The Issuer and the Indenture Trustee are parties to that certain Indenture
dated as of November 1, 2003 (as amended, the “Indenture”).




          C. The Purchaser, the Issuer, OOMC, as Servicer and the Indenture Trustee,
as both Indenture Trustee and custodian, are parties to that certain Custodial Agreement dated
as of November 1, 2003 (as amended, the “Custodial Agreement”).




          D. OOMC intends to transfer and assign to its wholly-owned subsidiary,
Capital, and Capital intends to accept and assume from OOMC, a
portion of OOMC’s business.




          E. OOMC has requested that the Depositor, the Purchaser, the Issuer and the Indenture
Trustee consent to certain amendments to the Sale and Servicing Agreement, the Indenture and the
Custodial Agreement, upon the terms and subject to the conditions set
forth herein.




          F. OOMC, Capital and Depositor have requested that the Purchaser, the
Issuer and the Indenture Trustee (a) consent to, promptly after the date hereof, the
conversion of the Depositor from a Delaware corporation to a Delaware limited liability company (the
“Depositor Conversion”) and (b) agree to promptly enter into after the date hereof a Fifth
Amended and Restated Loan Purchase and Contribution Agreement, dated as of December 29,
2006 (the “Proposed Fifth Amended and Restated LPA”), between Capital, as seller, and
Depositor, as purchaser (to reflect the terms of this Amendment and Consent).




          G. OOMC has requested that all references to “Loan Originator” in any of the
Basic Documents be defined to mean both OOMC and Capital, jointly and severally, unless
otherwise specifically set forth therein. OOMC has further requested that the definition of
“Loan Purchase and Contribution Agreement” in any of the Basic Documents be defined to mean each




 









 




of: (i) the Loan Purchase Agreement between OOMC, as seller, and Capital, as purchaser, dated as
of December 29, 2006 and all supplements and amendments thereto and (ii) the Proposed Fifth
Amended and Restated LPA, and all supplements and amendments thereto.




          H. In consideration of the consent of the Depositor, the Purchaser, the Issuer and the
Indenture Trustee, OOMC has agreed to be held jointly and severally liable for the Transfer
Obligation on the terms set forth herein.




          NOW, THEREFORE, the parties hereto agree as follows:




     SECTION 1. Amendments to the Sale and Servicing Agreement. Effective as of December
29, 2006 or such later date as OOMC shall designate (the “Effective Date”) and subject to the
satisfaction of the conditions precedent set forth in Section 9 hereof, the Sale and Servicing
Agreement is hereby amended as follows:



          (a) The definition of “Loan Originator” set forth in Section 1.01 of the Sale
and Servicing Agreement is hereby amended to provide as follows:





     “Loan Originator: Each of Option One and Option One Capital, and their respective
successors and assigns, jointly and severally.”



          (b) The definition of “Loan Purchase and Contribution Agreement” set forth
in Section 1.01 of the Sale and Servicing Agreement is hereby amended to provide as follows:





     “Loan Purchase and Contribution Agreement: Each of: (i) the Loan Purchase Agreement
between Option One, as loan originator, and Option One Capital, as transferee, dated as of
December 29, 2006 and all supplements and amendments thereto and (ii) the Fifth Amended and
Restated Loan Purchase and Contribution Agreement, between Option One Capital, as loan
originator, and Depositor, as depositor, dated as of December 29, 2006, and all supplements
and amendments thereto.”



          (c) The following definition of “Option One Capital” is hereby added to
Section 1.01 of the Sale and Servicing Agreement:





     “Option One Capital: Option One Mortgage Capital Corporation, a Delaware
corporation.”



          (d) Section 2.07(iv) of the Sale and Servicing Agreement is hereby amended
by substituting the following language:





     “(iv) Option One, Option One Capital or any of their Affiliates default under, or fail
to perform as requested under, or shall otherwise materially breach the terms of any
repurchase agreement, loan and security agreement or similar credit facility or agreement
entered into by Option One, Option One Capital or any of their Affiliates, including without
limitation, the Sale and Servicing Agreement, dated as of April 1, 2001, among the Option
One Owner Trust 2001-1A, the Depositor, Option One and the Indenture Trustee, the Sale and
Servicing Agreement, dated as of April 1, 2001, among the Option One Owner Trust 2001-2, the
Depositor, Option One and the Indenture Trustee, the Sale




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and Servicing Agreement, dated as of July 2, 2002, among the Option One Owner Trust 2002-3,
the Depositor, Option One and the Facility Administrator, the Sale and Servicing Agreement,
dated as of August 8, 2003, among the Option One Owner Trust 2003-4, the Depositor, Option
One and the Indenture Trustee, the Sale and Servicing Agreement, dated as of June 1, 2005,
among Option One Owner Trust 2005-6, the Depositor, Option One and the Indenture Trustee,
the Sale and Servicing Agreement, dated as of September 1, 2005, among the Option One Owner
Trust 2005-7, the Depositor, Option One and the Indenture Trustee, the Sale and Servicing
Agreement, dated as of October 1, 2005 among Option One Owner Trust 2005-8, the Depositor,
Option One and the Indenture Trustee and the Sale and Servicing Agreement, dated as of
December 30, 2005 among Option One Owner Trust 2005-9, the Depositor, Option One and the
Indenture Trustee and such default, failure or breach shall entitle any counterparty to
declare the Indebtedness thereunder to be due and payable prior to the maturity thereof.



          (e) Subsection (m) of Section 3.02 of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:





    “(m) Option One is in compliance with each of its financial covenants set forth in
Section 7.02; and”



          (f) Subsection (a)(8) of Section 9.01 of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:





    “(8) Option One fails to comply with any of the financial covenants set forth in
Section 7.02; or”



          (g) Subsection (k) of Section 3.02 of the Sale and Servicing Agreement is
hereby amended and restated in its entirety as follows:





    “(k) Option One has received fair consideration and reasonably equivalent value in
exchange for the Loans sold by it to Option One Capital and the Loan Originator has
received fair consideration and reasonably equivalent value in exchange for the Loans sold
by it on such Transfer Date to the Depositor;



          (h) Section 5.06 of the Sale and Servicing Agreement is hereby amended by adding the
following subsection:





    “(c) With respect to the obligations of the Loan Originator pursuant to this Section
5.06, Option One shall be obligated to make payments hereunder only if Option One Capital
does not make such payments prior to the time any such payment is required to be made. If
Option One Capital does not make any such payment prior to the time such payment is required
to be made, Option One shall be required to make such payment not later than the time such
payment is required to be made.”



          (i) Section 7.02 of the Sale and Servicing Agreement is hereby amended by substituting
“Option One” for “the Loan Originator” in each and every place where such term appears in such
section.




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          (j) Section 11.06 of the Sale and Servicing Agreement is hereby amended by deleting
clause (III) thereof and replacing such clause with the following:





     “(III) in the case of the Loan Originator, (A) if to Option One, to Option One
Mortgage Corporation, 3 Ada, Irvine, California 92618, Attention: William O’Neill, telecopy
number: (949) 790-7540, telephone number: (949) 790-7504 or (B) if to Option One Capital,
to Option One Mortgage Capital Corporation, 3 Ada Road, Irvine, California 92618,
Attention: Chief Financial Officer, telecopy number: (949) 790-7514, telephone number:
(949) 790-3600 ext 35524 or, in either case, to such other addresses or telecopy or
telephone numbers as may hereafter be furnished to the Securityholders and the other
parties hereto in writing by Option One or Option One Capital.



     SECTION 2. Amendments to the Indenture. Effective as of the Effective Date and
subject to the satisfaction of the conditions precedent set forth in Section 9 hereof, the
Indenture is hereby amended as follows:



          The definition of “Loan Originator” set forth in Section 1.01(a) of the Indenture is hereby
amended to provide as follows:





     “Loan Originator: has the meaning given to such term in the Sale and Servicing
Agreement.”



     SECTION 3. Amendments to the Custodial Agreement. Effective as of the Effective Date
and subject to the satisfaction of the conditions precedent set forth in Section 9 hereof, the
Custodial Agreement is hereby amended as follows:



          (a) The definition of “Loan Originator” set forth in Section 1 of the Custodial
Agreement is hereby amended to provide as follows:




          “Loan Originator: As defined in the Sale and Servicing Agreement.”





     (b) The definition of “Loan Purchase and Contribution Agreement” set forth
in Section 1 of the Custodial Agreement is hereby amended to provide as follows:




     “Loan Purchase and Contribution Agreement: As defined in the Sale and
Servicing Agreement.”



     SECTION 4. Consent to the Depositor Conversion and Proposed Fifth Amended and Restated
LPA. Each of the parties hereto consents to (a) the Depositor Conversion and (b) the Proposed
Fifth Amended and Restated LPA to amend and restate that certain Fourth Amended and Restated Loan
Purchase and Contribution Agreement, dated as of September 1, 2005, between OOMC, as seller, and
Depositor, as purchaser (to reflect the terms of this Amendment and Consent, including the
substitution of Capital for OOMC as the Loan Originator).



     SECTION 5. Representations and Warranties. Each of the parties hereto represents
and warrants that this Amendment and Consent, and the Sale and Servicing Agreement, Indenture and
Custodial Agreement, each as amended by this Amendment and Consent, constitute legal,



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valid and binding obligations of such Person enforceable against such Person in accordance with
their terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally and general equitable principles. Each of
OOMC, Capital and the Depositor represent to the Purchaser that as of the date hereof, after
giving effect to this Amendment and Consent, (a) all of their respective representations and
warranties in the Basic Documents are true and correct, and (b) such party is in full compliance
with all of the terms and conditions of the Basic Documents.




     SECTION 6. Reference to and the Effect on the Sale and Servicing Agreement, the
Indenture and the Custodial Agreement.



          (a) On and after the Effective Date, each reference in the Sale and Servicing
Agreement to “this Agreement”, “hereunder”, “hereof, “herein” or words of like import
referring to the Sale and Servicing Agreement and each reference to the Sale and Servicing
Agreement in any certificate delivered in connection therewith, shall mean and be a reference
to the Sale and Servicing Agreement as amended hereby.




          (b) Each of the parties hereto hereby agrees that, except as specifically
amended above, the Sale and Servicing Agreement is hereby ratified and confirmed and shall
continue to be in full force and effect and enforceable, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to
or limiting creditors’ rights generally and general equitable principles.




          (c) On and after the Effective Date, each reference in the Indenture to “this
Indenture”, “hereunder”, “hereof, “herein” or words of like import referring to the Indenture
and each reference to the Indenture in any certificate delivered in connection therewith,
shall mean and be a reference to the Indenture as amended hereby.




          (d) Each of the parties hereto hereby agrees that, except as specifically
amended above, the Indenture is hereby ratified and confirmed and shall continue to be in full
force and effect and enforceable, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or limiting
creditors’ rights generally and general equitable principles.




          (e) On and after the Effective Date, each reference in the Custodial
Agreement to “this Agreement”, “hereunder”, “hereof, “herein” or words of like import
referring to the Custodial Agreement and each reference to the Custodial Agreement in any
certificate delivered in connection therewith, shall mean and be a reference to the
Custodial Agreement as amended hereby.




          (f) Each of the parties hereto hereby agrees that, except as specifically
amended above, the Custodial Agreement is hereby ratified and confirmed and shall continue to
be in full force and effect and enforceable, except as such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors’ rights generally and general equitable principles.




     SECTION
7. Execution in Counterparts. This Amendment and Consent may be executed in
any number of counterparts and by different parties hereto in separate counterparts,



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each of which when so executed and delivered shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.




     SECTION 8. Governing Law. This Amendment and Consent shall be construed in accordance with,
and governed by the laws of the State of New York, without giving effect to its conflicts of law
provisions.



     SECTION 9. Conditions of Effectiveness. This Amendment and Consent shall become
effective as of the date hereof upon the receipt by the Purchaser of this Amendment and Consent
duly executed by all of the parties hereto.



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          IN WITNESS WHEREOF, the parties have executed this Amendment and Consent as of the day
and year first above written.




	 	 	 	 	 	 	 
	 	 	OPTION ONE OWNER TRUST 2003-5, as Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	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, as Depositor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Philip Laren
 

Name: Philip Laren
	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	OPTION ONE MORTGAGE

CORPORATION, as Loan Originator and as

Servicer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Philip Laren	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Philip Laren	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	OPTION ONE MORTGAGE CAPITAL
CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Philip Laren
 

Name: Philip Laren
	 	 
	 

	 	 	 	Title: Vice President	 	 






Signature Page to Omnibus Amendment




 









 





	 	 	 	 	 	 	 
	 	 	WELLS FARGO BANK,
NATIONAL ASSOCIATION,
as Indenture Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Darron C. Woodus
 

Name: Darron C. Woodus
	 	 
	 

	 	 	 	Title: Assistant Vise President	 	 






Signature
Page to Omnibus Amendment




 









 





	 	 	 	 	 	 	 
	 	 	CITIGROUP GLOBAL MARKETS REALTY
CORP., as Purchaser	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Bobbie Theivakumaran
 

Name: Bobbie Theivakumaran
	 	 
	 

	 	 	 	Title: Authorized Agent	 	 






Signature
Page to Omnibus Amendment