exv10w9



 






EXHIBIT 10.9




AMENDMENT NUMBER ONE

to the

AMENDED AND RESTATED SALE AND SERVICING AGREEMENT,

Dated as of November 25, 2003,

among

OPTION ONE OWNER TRUST 2001-2,

OPTION ONE LOAN WAREHOUSE CORPORATION,

OPTION ONE MORTGAGE CORPORATION

and

WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION




          This AMENDMENT NUMBER ONE (this “Amendment”) is made and is effective as of this 30th day of
April, 2004, 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 Wells Fargo Bank Minnesota, National Association, as Indenture Trustee (the
“Indenture Trustee”), to the Amended and Restated Sale and Servicing Agreement, dated as of
November 25, 2003 (as amended, the “Sale and Servicing Agreement”), among the Issuer, the
Depositor, the Loan Originator, the Servicer and the Indenture Trustee, as otherwise amended.



RECITALS




          WHEREAS, the parties hereto desire to amend the Sale and Servicing Agreement subject to the
terms and conditions of this Amendment.



          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 Sale and Servicing Agreement.



          SECTION 2. Amendments.




	 	(a)  	Effective as of April 30, 2004, Section 1.01 of the Sale and Servicing
Agreement is hereby amended by deleting the definition of “Trust Accounts”
and replacing such definition with the following:





                         “Trust Accounts: The Distribution Account, the Collection Account, the Advance Account and the
Transfer Obligation Account.”




	 	(b)  	Effective as of April 30, 2004, Section 2.06(a) of the Sale and
Servicing Agreement is hereby amended by deleting the first paragraph of
such Section and replacing it in its entirety with the following:




 









 











                         “Two (2) Business Days prior to each Transfer Date, the Issuer shall give notice to the
Initial Noteholder of such upcoming Transfer Date and provide an estimate of the number of Loans
and aggregate Principal Balance of such Loans to be transferred on such Transfer Date. On the
Business Day prior to each Transfer Date, the Issuer shall provide the Initial Noteholder a final
Loan Schedule with respect to the Loans to be transferred on such Transfer Date. On each Transfer
Date, the Depositor or the applicable QSPE Affiliate shall convey to the Issuer, the Loans and the
other property and rights related thereto described in the related S&SA Assignment, and the Issuer,
only upon the satisfaction of each of the conditions set forth below on or prior to such Transfer
Date, shall deposit or cause to be deposited cash in the amount of the Additional Note Principal
Balance received from the Initial Noteholder in the Advance Account in respect thereof, and the
Paying Agent shall, promptly after such deposit, withdraw the amount deposited in respect of
applicable Additional Note Principal Balance from the Advance Account, and distribute such amount
to or at the direction of the Depositor or the applicable QSPE Affiliate in payment of the Sales
Price for the related Loans. If amounts are withdrawn from the Advance Account in payment of the
Sales Price of any Wet Funded Loan that is not actually funded to the related Borrower on the date
of withdrawal, the Loan Originator shall redeposit or cause to be redeposited such amounts into the
Advance Account prior to the close of business on such day. If the related Loan is not funded to
the related Borrower by 4:00 p.m. New York City time on the immediately following Business Day,
such amount shall be returned by the Paying Agent to the Initial Noteholder by wire transfer not
later than 4:30 p.m. New York City time on such immediately following Business Day.”




	 	(c)  	Effective as of April 30, 2004, Section 5.04 of the Sale and Servicing
Agreement is hereby amended by deleting such Section and replacing it in
its entirety with the following:





          “Section 5.04 Advance Account.



          (a) The Servicer, for the benefit of the Noteholders, shall cause to be established and
maintained an Advance Account (the “Advance Account”), which shall be a separate Eligible Account
entitled “Option One Owner Trust 2001-2 Advance Account, Wells Fargo Bank Minnesota, National
Association, as Indenture Trustee, for the benefit of the Option One Owner Trust 2001-2
Mortgage-Backed Notes.” The Advance Account shall be maintained with a depository institution and
shall satisfy the requirements set forth in the definition of Eligible Account. Funds in the
Collection Account shall not be invested.



          (b) Deposits and Withdrawals. Amounts in respect of Additional Note Principal Balances
purchased on Transfer Dates related to Loans shall be deposited in and withdrawn from the Advance
Account as provided in Sections 2.01(c) and 2.06 hereof and Section 3.01 of the Note Purchase
Agreement. All amounts on deposit in the Advance Account at any time shall be the property of the
Initial Noteholder and shall be held in escrow by the Indenture Trustee for application in accordance with this Agreement.”



          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



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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.



          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 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/ Patricia A. Evans
	

	 	 	 	 
	 	 	Name:	Patricia A. Evans
	 	 	Title:	Assistant Vice President
	 
	 	 	 	 
	 	 	OPTION ONE LOAN WAREHOUSE CORPORATION
	 
	 	 	 	 
	

	 	By:	 	/s/ Bob Fulton
	

	 	 	 	 
	 	 	Name:	Bob Fulton
	 	 	Title:	Assistant Secretary

	 
	 	 	 	 
	 	 	OPTION ONE MORTGAGE CORPORATION
	 
	 	 	 	 
	

	 	By:	 	/s/ Bob Fulton
	

	 	 	 	 
	 	 	Name:	Bob Fulton
	 	 	Title:	Assistant Secretary
	 
	 	 	 	 
	 	 	WELLS FARGO BANK MINNESOTA, NATIONAL
	 	 	ASSOCIATION, as Indenture Trustee
	 
	 	 	 	 
	

	 	By:	 	/s/ Reid Denny
	

	 	 	 	 
	 	 	Name:	Reid Denny
	 	 	Title:	V.P.