exv10w4



 








Exhibit 10.4



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 2001-2 (the “Issuer”) Option One
Mortgage Corporation (“OQMC”), 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 to Wells Fargo Bank Minnesota, National Association), as indenture trustee (the
“Indenture Trustee”), and Bank of America, N.A. (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 Second Amended and Restated Sale and Servicing
Agreement dated as of March 8, 2005 (as amended, the “Sale and Servicing Agreement”).




          B. The Issuer and the Indenture Trustee are parties to that certain Amended and Restated
Indenture dated as of November 25, 2003 (as amended, the
“Indenture”).




          C. The Purchaser, the Issuer, OOMC, as the Servicer and the Indenture Trustee, as both
Indenture Trustee and custodian, are parties to that certain Custodial Agreement dated as of
April 1, 2001 (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) The definition of “QSPE Affiliate” in Section 1.01 is hereby amended in its entirety to
provide as follows:





     “QSPE Affiliate: Any of Option One Owner Trust 2001 -1 A, Option One Owner Trust
2002-3, Option One Owner Trust 2003-4, Option One Owner Trust 2003-5, Option One Owner Trust
2005-6, Option One Owner Trust 2005-7, Option One Owner Trust 2005-8, Option One Owner Trust
2005-9, or any other Affiliate which is a ‘qualified special purpose entity’ in accordance
with Financial Accounting Standards Board’s Statement No.. 140.”



          (e) Section 2,03(d) of the Sale and Servicing Agreement is hereby amended by adding the
following language at the end thereof:




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     “The Depositor at its expense shall take such actions as may be necessary or
reasonably requested by the Issuer to ensure the perfection, and priority to all other
security interests, of the security interest described in the preceding paragraph including
without limitation the execution and delivery of such financing statements and amendments
thereto, continuation statements and other documents as the Issuer may reasonably request.”



          (f) 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;



          (g) 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.”



          (h) 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.




          (i) Section 9..01(a)(6) of the Sale and Servicing Agreement is hereby amended
and restated in its entirety as follows:





     ”(6) Option One fails to comply with the Financial Covenants; or”



          (j) Section 11.06 of the Sale and Servicing Agreement is hereby amended by deleting
clause (3) thereof and replacing such clause with the following:





     ”(3) 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) 790-7.514, telephone number: (949) 790-3600 ext
35.524 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;”



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     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:



          (a) 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.”



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





     ” ‘Sale and Servicing Agreement’ means the Second Amended and Restated Sale
and Servicing Agreement dated as of March 8,200.5, by and among the Issuer, the Depositor,
the Servicer, the Loan Originator and the Indenture Trustee on behalf of the Noteholders,
as amended from time to time.”



     SECTIONS. 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,



     valid and Finding obligations of suclTPerson 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



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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, 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.



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     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 2001-2,
 as Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Wilmington Trust Company, not in its

individual capacity, but solely as

Owner Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jennifer A. Luce	 	 
	 

	 	Name:
	 	 

Jennifer A. Luce
	 	 
	 

	 	Title:
	 	Sr. Financial Services Officer	 	 
	 
	 	 	 	 	 	 
	 	 	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 Vice President	 	 






Signature
Page to Omnibus Amendment




 









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Purchaser	 	 
	 

	 	By:
	 	/s/ Gregory S. Lettwich	 	 
	 

	 	Name:
	 	 

Gregory S. Lettwich
	 	 
	 

	 	Title:
	 	Principal	 	 






Signature Page to Omnibus Amendment