OMNIBUS AMENDMENT NUMBER ONE to the OPTION ONE OWNER TRUST 2005-8 WAREHOUSE FACILITY
Exhibit 10.4
OMNIBUS AMENDMENT NUMBER ONE
to the
OPTION ONE OWNER TRUST 2005-8 WAREHOUSE FACILITY
This OMNIBUS AMENDMENT NUMBER ONE (this “Amendment”) is made
and is effective as of this 6th day of October, 2006, among Option One Owner Trust 2005-8, as
issuer (the “Issuer”), Option One Loan Warehouse Corporation, as depositor (the “Depositor”),
Option One Mortgage Corporation as loan originator and servicer (“Option One”), Xxxxx Fargo
Bank, N.A. as indenture trustee (the “Indenture Trustee”), Xxxxxxx Xxxxx Bank USA, as
noteholder agent and purchaser (“Xxxxxxx Xxxxx”) to (i) the Note Purchase Agreement, dated as
of October 1, 2005 (as amended, supplemented or otherwise modified from time to time, the
“Note Purchase Agreement”), among the Issuer, the Depositor and Xxxxxxx Xxxxx and (ii) the
Sale and Servicing Agreement, dated as of October 1, 2005 (as amended, supplemented or
otherwise modified from time to time, the “Sale and Servicing Agreement” and together with the
Note Purchase Agreement, the “Transaction Documents”), among the Issuer, the Depositor,
Option One and the Indenture Trustee.
RECITALS
WHEREAS, the parties have previously entered into the Transaction Documents; and
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. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Transaction Documents.
SECTION 2. Amendment to Sale and Servicing Agreement.
(a) The definition of “QSPE Affiliate” in Section 1.01 of the Sale and
Servicing Agreement is hereby deleted in its entirety and replaced with the following:
“QSPE Affiliate: Any of Option One Owner Trust 2001-1A, Option One
Owner Trust 2001-1B, 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 2005-8, 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 or 125.”
(b) The definition of “Revolving Period” in Section 1.01 of the Sale and Servicing
Agreement is hereby deleted in its entirety and replaced with the following:
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“Revolving Period: With respect to the Notes, the period commencing on
October 6, 2006 and ending on the earlier of (i) 364 days after such date, and (ii)
the date on which the Revolving Period is terminated pursuant to Section
2.07.”
(d) Section 2.07 of the Sale and Servicing Agreement is hereby amended by deleting
it in entirety and replacing it with the following:
“Upon the occurrence of (i) an Event of Default or Default or (ii) the
Unfunded Transfer Obligation Percentage equals 4% or less or (iii) Option One or
any of its Affiliates shall 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 or any of its Affiliates, including without limitation, the Sale and Servicing
Agreement, dated as of April 1, 2001, among the Option One Owner Trust
2001-1 A, 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-IB, the Depositor, Option One and the Indenture Trustee, the Sale and
Servicing Agreement, dated as of July 2, 2002, among the Option One Owner
Trust 2002-3, the Depositor, Option One and the Indenture Trustee, 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. The
Initial Noteholder may, in any such case, in its sole discretion, terminate the
Revolving Period.”
SECTION 3. Amendment to Note Purchase Agreement.
(a) Section 2.02 of the Note Purchase Agreement is hereby deleted in its entirety and
replaced with the following:
“SECTION
2.02 Closing. The closing (the “Closing”) of the execution of the
Basic Documents and issuance of the Notes shall take place at 10:00 a.m. at the offices of Xxxxxxx
Xxxxxxxx & Wood, Two World Financial Center, New York, New York 10281, or if the conditions
to closing set forth in Article IV of this Note Purchase Agreement shall not have been satisfied or
waived by such date, as soon as practicable after such conditions shall have been satisfied or
waived, or at such other time, date and place as the parties shall agree upon.”
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SECTION 4. Representations. To induce Xxxxxxx Xxxxx to execute and deliver
this Amendment, each of the Issuer and the Depositor hereby jointly and severally represents to
Xxxxxxx Xxxxx that as of the date hereof, after giving effect to this Amendment, (a) all of its
respective representations and warranties in the Basic Documents are true and correct, and (b) it
is otherwise in full compliance with all of the terms and conditions of the Basic Documents.
SECTION 5. Fees and Expenses. The Issuer and the Depositor jointly and
severally covenant to pay as and when billed by Xxxxxxx Xxxxx 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 Xxxxxxx Xxxxx, (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. Limited Effect. Except as expressly amended and modified by this
Amendment, the Transaction Documents shall continue in full force and effect in accordance
with its terms. Reference to this Amendment need not be made in any of the Transaction
Documents or any other instrument or document executed in connection therewith, or in any
certificate, letter or communication issued or made pursuant to, or with respect to, the
Transaction Documents, any reference in any of such items to the Transaction Documents being
sufficient to refer to the Transaction Documents as amended hereby.
SECTION 7. 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 8. Counterparts. This Amendment may be executed by each of the
parties hereto in any number of separate counterparts, each of which when so executed shall be
an original and all of which taken together shall constitute one and the same instrument.
SECTION 9. 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 2005-8 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 2005-8 | ||||||
| By: | Wilmington Trust
Company, not in its individual capacity but solely as owner trustee |
|||||
| By: | /s/ Xxxx Xxx Xxxxxxx | |||||
| Name: | ||||||
| Title: | Assistant Vice President | |||||
| OPTION ONE LOAN WAREHOUSE CORPORATION | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Vice President | |||||
| OPTION ONE MORTGAGE CORPORATION | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Senior Vice President | |||||
| XXXXX FARGO BANK, N.A. | ||||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxx | |||||
| Title: | VP | |||||
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 2005-8 | ||||||
| By: | Wilmington Trust Company, not in its individual capacity but solely as owner trustee |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| OPTION ONE LOAN WAREHOUSE CORPORATION | ||||||
| By: | /s/Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Vice President | |||||
| OPTION ONE MORTGAGE CORPORATION | ||||||
| By: | /s/Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Senior Vice President | |||||
| XXXXX FARGO BANK, N.A. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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 2005-8 | ||||||
| By: | Wilmington Trust Company, not in its individual capacity but solely as owner trustee |
|||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| OPTION ONE LOAN WAREHOUSE CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| OPTION ONE MORTGAGE CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXX FARGO BANK, N.A. | ||||||
| By: | /s/Xxxxx Xxxxxxxx | |||||
| Name: | Xxxxx Xxxxxxxx | |||||
| Title: | X X | |||||
| XXXXXXX XXXXX BANK USA, as Purchaser |
||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | ||||||
| Title: | Vice President | |||||
| XXXXXXX XXXXX BANK USA, as Noteholder Agent |
||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: | Xxxxxx Xxxxxx | |||||
| Title: | Director | |||||
