EXHIBIT 10.53
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AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
among
OPTION ONE OWNER TRUST 2001-1A
as Issuer
and
OPTION ONE LOAN WAREHOUSE CORPORATION
as Depositor
and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
as Purchaser
Dated as of April 16, 2004
OPTION ONE OWNER TRUST 2001-1A
MORTGAGE-BACKED NOTES
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms..................................... 1
SECTION 1.02. Other Definitional Provisions............................. 3
ARTICLE II
COMMITMENT; CLOSING AND PURCHASES OF
ADDITIONAL NOTE PRINCIPAL BALANCES
SECTION 2.01. Commitment; Collateral Value Increase Dates............... 3
SECTION 2.02. Closing................................................... 4
ARTICLE III
TRANSFER DATES AND FUNDING DATES
SECTION 3.01. Transfer Dates............................................ 4
SECTION 3.02. Funding Dates............................................. 5
ARTICLE IV
CONDITIONS PRECEDENT TO
EFFECTIVENESS OF COMMITMENT
SECTION 4.01. Closing Subject to Conditions Precedent................... 6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF
THE ISSUER AND THE DEPOSITOR
SECTION 5.01. Issuer.................................................... 9
SECTION 5.02. Securities Act............................................ 11
SECTION 5.03. No Fee.................................................... 11
SECTION 5.04. Information............................................... 11
SECTION 5.05. The Purchased Note........................................ 11
SECTION 5.06. Use of Proceeds........................................... 11
SECTION 5.07. The Depositor............................................. 12
SECTION 5.08. Taxes, etc................................................ 12
SECTION 5.09. Financial Condition....................................... 12
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE PURCHASER
SECTION 6.01. Organization............................................ 12
SECTION 6.02. Authority, etc.......................................... 12
SECTION 6.03. Securities Act.......................................... 13
SECTION 6.04. Conflicts With Law...................................... 13
SECTION 6.05. Conflicts With Agreements, etc.......................... 13
ARTICLE VII
COVENANTS OF THE ISSUER AND THE DEPOSITOR
SECTION 7.01. Information from the Issuer............................. 13
SECTION 7.02. Access to Information................................... 14
SECTION 7.03. Ownership and Security Interests; Further Assurances.... 14
SECTION 7.04. Covenants............................................... 14
SECTION 7.05. Amendments.............................................. 14
SECTION 7.06. With Respect to the Exempt Status of the Purchased
Note.................................................... 14
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01. Legal Conditions to Closing............................. 15
SECTION 8.02. Expenses................................................ 15
SECTION 8.03. Mutual Obligations...................................... 15
SECTION 8.04. Restrictions on Transfer................................ 16
SECTION 8.05. Confidentiality......................................... 16
SECTION 8.06. Information Provided by the Purchaser................... 16
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Indemnification of Purchaser............................ 16
SECTION 9.02. Procedure and Defense................................... 17
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments.............................................. 18
SECTION 10.02. Notices................................................. 18
SECTION 10.03. No Waiver; Remedies..................................... 18
SECTION 10.04. Binding Effect; Assignability........................... 18
SECTION 10.05. Provision of Documents and Information.................. 19
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SECTION 10.06. Governing Law; Jurisdiction............................ 19
SECTION 10.07. No Proceedings......................................... 19
SECTION 10.08. Execution in Counterparts.............................. 19
SECTION 10.09. No Recourse -- Purchaser and Depositor................. 19
SECTION 10.10. Survival............................................... 20
SECTION 10.12. Conflicts.............................................. 20
SECTION 10.13. Limitation on Liability................................ 20
Schedule I -- Information for Notices
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NOTE PURCHASE AGREEMENT
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT, dated and effective as
of April 16, 2004 (the "Note Purchase Agreement"), among OPTION ONE OWNER TRUST
2001-1A (the "Issuer"), OPTION ONE LOAN WAREHOUSE CORPORATION (the "Depositor"),
and GREENWICH CAPITAL FINANCIAL PRODUCTS, INC. ("Greenwich," and in its capacity
as Purchaser hereunder, the "Purchaser").
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms. Capitalized terms used herein
without definition shall have the meanings set forth in the Indenture and the
Sale and Servicing Agreement (as defined below). Additionally, the following
terms shall have the following meanings:
"Closing" shall have the meaning set forth in Section 2.02.
"Closing" shall have the meaning set forth in Section 2.02.
"Commitment" means the commitment of the Purchaser to purchase
Additional Note Principal Balances pursuant to Section 2.01.
"Confidential Information" means all marketing information,
financial information, terms sheets and other information concerning the
transactions contemplated thereby, prepared by the Purchaser and its Affiliates.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Governmental Actions" means any and all consents, approvals,
permits, orders, authorizations, waivers, exceptions, variances, exemptions or
licenses of, or registrations, declarations or filings with, any Governmental
Authority required under any Governmental Rules.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
"Governmental Rules" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Indemnified Party" means the Purchaser and any of its officers,
directors, employees, agents, representatives, assignees and Affiliates and any
Person who controls the
Purchaser or its Affiliates within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act.
"Indenture" means the Indenture dated as of April 1, 2001, and as
amended and restated through and including November 25, 2003, between the Issuer
as Issuer and Wells Fargo Bank Minnesota, National Association as Indenture
Trustee, as the same may be further amended or supplemented from time to time.
"Investment Company Act" shall have the meaning provided in Section
5.01(i).
"Lien" means, with respect to any asset, (a) any mortgage, lien,
pledge, charge, security interest, hypothecation, option or encumbrance of any
kind in respect of such asset or (b) the interest of a vendor or lessor under
any conditional sale agreement, financing lease or other title retention
agreement relating to such asset.
"Loan Originator" means Option One Mortgage Corporation, a
California corporation.
"Maximum Note Principal Balance" means an amount equal to (i) on any
date through and including December 30, 2003 and on or after January 1, 2004,
$2,000,000,000 or (ii) on December 31, 2003, $1,500,000,000, in each case less
(i) any reductions pursuant to Section 2.06 of the Sale and Servicing Agreement,
less (ii) the aggregate outstanding principal balance of the Option One Owner
Trust 2001-IB Mortgage-Backed Note issued by the Option One Owner Trust 2001-IB
and less (iii) the aggregate amount outstanding from time to time under any
secured loan or repurchase facility entered into by Greenwich, or its
Affiliates, and Option One Mortgage Corporation, or its Subsidiaries.
"Purchaser" means the Purchaser and its permitted successors and
assigns.
"Purchased Note" means the Option One Owner Trust 2001-1A
Mortgage-Backed Note issued by the Issuer pursuant to the Indenture.
"Residual Security" Any security sold to the Trust hereunder and
pledged to the Indenture Trustee, which security must be (i) a mortgage-backed
security issued by Option One Mortgage Acceptance Corp. and evidencing an
interest in a securitization trust backed by residential mortgage loans, which
mortgage loans are serviced by Option One Mortgage Corporation (in such
capacity, "Option One") (including, without limitation, securities designated as
class C certificates and class P certificates that meet the foregoing criteria)
or (ii) a net interest margin security issued by a trust sponsored by Option One
and backed by class C certificates and/or Class P certificates, which
certificates are in turn backed by residential mortgage loans serviced by Option
One.
"Sale and Servicing Agreement" means the Sale and Servicing
Agreement, dated as of April 1, 2001, and as amended and restated through and
including April 16, 2004, among the Issuer, the Depositor, the Loan Originator,
the Servicer and Wells Fargo Bank Minnesota, National Association as the
Indenture Trustee, as the same may be further amended or supplemented from time
to time.
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"Secured Loan Facility" means the secured loan facility entered into
by Option One Mortgage Corporation and Greenwich, as evidence by the Master Loan
and Security Agreement, dated May 2, 2002, between Option One Mortgage
Corporation and Greenwich, as amended or restated from time to time, and the
promissory note of Option One Mortgage Corporation in favor of Greenwich entered
into in connection therewith.
"Servicer" means Option One Mortgage Corporation or its permitted
successors and assigns.
SECTION 1.02. Other Definitional Provisions.
(a) All terms defined in this Note Purchase Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained herein shall control.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Note Purchase Agreement shall refer to this
Note Purchase Agreement as a whole and not to any particular provision of this
Note Purchase Agreement; and Section, subsection, Schedule and Exhibit
references contained in this Note Purchase Agreement are references to Sections,
subsections, and Exhibits in or to this Note Purchase Agreement unless otherwise
specified.
ARTICLE II
COMMITMENT; CLOSING AND PURCHASES OF
ADDITIONAL NOTE PRINCIPAL BALANCES
SECTION 2.01. Commitment; Collateral Value Increase Dates.
(a) At any time during the Revolving Period at least two Business
Days prior to a proposed Transfer Date or Funding Date, to the extent that the
aggregate outstanding Note Principal Balance (after giving effect to the
proposed purchase) is less than the Maximum Note Principal Balance, and subject
to the terms and conditions hereof and in accordance with the other Basic
Documents, the Issuer may request that the Purchaser purchase Additional Note
Principal Balances (each such request, a "Purchase Request"). Each Purchase
Request shall identify (i) with respect to each Transfer Date, the proposed
Transfer Date and an estimate of the number of Loans or Residual Securities and
aggregate Principal Balance of such Loans and aggregate Principal Balance of
such Residual Securities to be purchased by the Issuer on such Transfer Date and
(ii) with respect to each Funding Date, the proposed Funding Date and the
aggregate Receivables Balance of the Receivables to be purchased by the Advance
Trust on such Funding Date. On the
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identified Transfer Date or Funding Date, the Purchaser agrees to purchase the
Additional Note Principal Balances requested in the Purchase Request, subject to
the terms and conditions and in reliance upon the covenants, representations and
warranties set forth herein and in the other Basic Documents.
(b) On any Collateral Value Increase Date during the Revolving
Period, to the extent that the Note Principal Balance (after giving effect to
the proposed increase in the Note Principal Balance) is less than the Maximum
Note Principal Balance, and subject to the terms and conditions hereof and in
accordance with the other Basic Documents, the Issuer may request that the
Purchaser purchase Additional Note Principal Balances equal to the related
increase in the Collateral Value of the related Mortgage Loans. The Purchaser
may in its sole discretion agree to purchase such Additional Note Principal
Balances.
SECTION 2.02. Closing. The closing (the "Closing") of the execution
of the Basic Documents and Purchased Note shall take place at 10:00 a.m. at the
offices of Thacher Proffitt & Wood, 2 World Trade Center, New York, New York
10048 on April 18, 2001, 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
(the date of the Closing being referred to herein as the "Closing").
ARTICLE III
TRANSFER DATES AND FUNDING DATES
SECTION 3.01. Transfer Dates.
(a) Subject to the conditions and terms set forth herein and in
Section 2.06 of the Sale and Servicing Agreement with respect to each Transfer
Date, the Issuer may request, and the Purchaser agrees to purchase Additional
Note Principal Balances from the Issuer from time to time in accordance with,
and upon the satisfaction, as of the applicable Transfer Date, of each of the
following additional conditions:
(i) With respect to each Transfer Date, each condition set
forth in Section 2.06 of the Sale and Servicing Agreement shall have been
satisfied;
(ii) Each of the representations and warranties of the Issuer,
the Servicer, the Loan Originator and the Depositor made in the Basic Documents
shall be true and correct as of such date (except to the extent they expressly
relate to an earlier or later time);
(iii) The Issuer, the Servicer, the Loan Originator and the
Depositor shall be in compliance with all of their respective covenants
contained in the Basic Documents and the Purchased Note;
(iv) No Event of Default and no Default shall have occurred or
shall be occurring; and
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(v) With respect to each Transfer Date, the Purchaser shall
have received evidence reasonably satisfactory to it of the completion of all
recordings, registrations, and filings as may be necessary or, in the reasonable
opinion of the Purchaser, desirable to perfect or evidence the assignments
required to be effected on such Transfer Date in accordance with the Sale and
Servicing Agreement and the Residual Securities Transfer Agreement, including,
without limitation, the assignment of the Loans and the Residual Securities and
the proceeds thereof required to be assigned pursuant to the related LPA
Assignment, RSTA Assignment, S&SA Assignment and the Indenture.
(b) The Purchaser shall determine in its reasonable discretion
whether each of the above conditions have been met in accordance with the Sale
and Servicing Agreement and its determination shall be binding on the parties
hereto.
(c) The price paid by the Purchaser on each Transfer Date for the
Additional Note Principal Balance purchased on such Transfer Date shall be equal
to the amount of such Additional Note Principal Balance and shall be remitted
not later than 4:00 p.m. New York City time on the Transfer Date by wire
transfer of immediately available funds to the Advance Account.
(d) The Purchaser shall record on the schedule attached to the
Purchased Note, the date and amount of any Additional Note Principal Balance
purchased by it; provided, that failure to make such recordation on such
schedule or any error in such schedule shall not adversely affect the
Purchaser's rights with respect to its Note Principal Balance and its right to
receive interest payments in respect of the Note Principal Balance actually
held. Absent manifest error, the Note Principal Balance of the Purchased Note as
set forth in the Purchaser's records shall be binding upon the parties hereto,
notwithstanding any notation or record made or kept by any other party hereto.
SECTION 3.02. Funding Dates.
(a) Subject to the conditions and terms set forth herein and in
Section 2.06 of the Sale and Servicing Agreement with respect to each Funding
Date, the Issuer may request, and the Purchaser agrees to purchase Additional
Note Principal Balances from the Issuer from time to time in accordance with,
and upon the satisfaction, as of the applicable Funding Date, of each of the
following additional conditions:
(i) With respect to each Funding Date, each condition set
forth in Section 2.06 of the Sale and Servicing Agreement shall have been
satisfied;
(ii) Each of the representations and warranties of the Issuer,
the Servicer, the Loan Originator and the Depositor made in the Basic Documents
shall be true and correct as of such date (except to the extent they expressly
relate to an earlier or later time);
(iii) The Issuer, the Servicer, the Loan Originator and the
Depositor shall be in compliance with all of their respective covenants
contained in the Basic Documents and the Purchased Note;
(iv) No Event of Default and no Default shall have occurred or
shall be occurring; and
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(v) With respect to each Funding Date, the Purchaser shall
have received evidence reasonably satisfactory to it of the completion of all
recordings, registrations, and filings as may be necessary or, in the reasonable
opinion of the Purchaser, desirable to perfect or evidence the Indenture
Trustee's security interest in the Advance Note and the proceeds thereof.
(b) The Purchaser shall determine in its reasonable discretion
whether each of the above conditions have been met in accordance with the Sale
and Servicing Agreement and its determination shall be binding on the parties
hereto.
(c) The price paid by the Purchaser on each Funding Date for the
Additional Note Principal Balance purchased on such Funding Date shall be equal
to the amount of such Additional Note Principal Balance and shall be remitted
not later than 4:00 p.m. New York City time on the Funding Date by wire transfer
of immediately available funds to the Funding Account.
(d) The Purchaser shall record on the schedule attached to the
Purchased Note, the date and amount of any Additional Note Principal Balance
purchased by it; provided, that failure to make such recordation on such
schedule or any error in such schedule shall not adversely affect the
Purchaser's rights with respect to its Note Principal Balance and its right to
receive interest payments in respect of the Note Principal Balance actually
held. Absent manifest error, the Note Principal Balance of the Purchased Note as
set forth in the Purchaser's records shall be binding upon the parties hereto,
notwithstanding any notation or record made or kept by any other party hereto.
ARTICLE IV
CONDITIONS PRECEDENT TO
EFFECTIVENESS OF COMMITMENT
SECTION 4.01. Closing Subject to Conditions Precedent. The
effectiveness of the Commitment hereunder is subject to the satisfaction at the
time of the Closing of the following conditions (any or all of which may be
waived by the Purchaser in its sole discretion):
(a) Performance by the Issuer, the Depositor, the Servicer and the
Loan Originator. All the terms, covenants, agreements and conditions of the
Basic Documents to be complied with and performed by the Issuer, the Depositor,
the Servicer and the Loan Originator on or before the Closing Date shall have
been complied with and performed in all material respects.
(b) Representations and Warranties. Each of the representations and
warranties of the Issuer, the Depositor, the Servicer and the Loan Originator
made in the Basic Documents shall be true and correct in all material respects
as of the Closing Date (except to the extent they expressly relate to an earlier
or later time).
(c) Officer's Certificate. The Purchaser shall have received in form
and substance reasonably satisfactory to the Purchaser an Officer's Certificate
from the Loan Originator, the Depositor and the Servicer and a certificate of an
Authorized Officer of the Issuer, dated the Closing Date, certifying to the
satisfaction of the conditions set forth in the preceding paragraphs (a) and (b)
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(d) Opinions of Counsel to the Issuer, the Loan Originator, the
Servicer and the Depositor. Counsel to the Issuer, the Loan Originator, the
Servicer and the Depositor shall have delivered to the Purchaser favorable
opinions, dated as of the Closing Date and satisfactory in form and substance to
the Purchaser and its counsel. In addition to the foregoing, the Loan Originator
shall have caused its counsel to deliver to the Purchaser a favorable opinion to
the effect that the Issuer will not be treated as an association (or publicly
traded partnership) taxable as a corporation or as a taxable mortgage pool, for
federal income tax purposes.
(e) Opinions of Counsel to the Indenture Trustee. Counsel to the
Indenture Trustee shall have delivered to the Purchaser a favorable opinion,
dated as of the Closing Date and reasonably satisfactory in form and substance
to the Purchaser and its counsel.
(f) Opinions of Counsel to the Owner Trustee. Delaware counsel to
the Owner Trustee of the Issuer and the Depositor shall have delivered to the
Purchaser favorable opinions regarding the formation, existence and standing of
the Issuer and the Depositor and of the Issuer's and the Depositor's execution,
authorization and delivery of each of the Basic Documents to which it is a party
and such other matters as the Purchaser may reasonably request, dated as of the
Closing Date and reasonably satisfactory in form and substance to the Purchaser
and its counsel.
(g) Filings and Recordations. The Purchaser shall have received
evidence reasonably satisfactory to it of (i) the completion of all recordings,
registrations, and filings as may be necessary or, in the reasonable opinion of
the Purchaser, desirable to perfect or evidence the assignment by the Loan
Originator to the Depositor of the Loan Originator's ownership interest in the
Trust Estate including, without limitation, the Loans conveyed pursuant to the
Loan Purchase Agreement and the proceeds thereof and the Residual Securities
conveyed pursuant to the Residual Securities Transfer Agreement and the proceeds
thereof, (ii) the completion of all recordings, registrations and filings as may
be necessary or, in the reasonable opinion of the Purchaser, desirable to
perfect or evidence the assignment by the Depositor to the Issuer of the
Depositor's ownership interest in the Trust Estate including, without
limitation, the Loans and Residual Securities and the proceeds thereof and (iii)
the completion of all recordings, registrations, and filings as may be necessary
or, in the reasonable opinion of the Purchaser, desirable to perfect or evidence
the grant of a first priority perfected security interest in the Issuer's
ownership interest in the Trust Estate including, without limitation, the Loans
and the Residual Securities, in favor of the Indenture Trustee, subject to no
Liens prior to the Lien of the Indenture.
(h) Documents. The Purchaser shall have received a duly executed
counterpart of each of the Basic Documents, in form acceptable to the Purchaser,
the Purchased Note and each and every document or certification delivered by any
party in connection with any of the Basic Documents or the Purchased Note, and
each such document shall be in full force and effect.
(i) Actions or Proceedings. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, any of the
transactions contemplated by the Basic Documents, the Purchased Note and the
documents related thereto in any material respect.
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(j) Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Basic Documents, the Purchased Note and the documents related thereto
shall have been obtained or made.
(k) Accounts. The Purchaser shall have received evidence reasonably
satisfactory to it that each Trust Account has each been established in
accordance with the terms of the Sale and Servicing Agreement.
(l) Fees and Expenses. The fees and expenses payable by the Issuer
and the Depositor pursuant to Section 8.02(b) shall have been paid.
(m) Other Documents. The Issuer, the Loan Originator, the Depositor
and the Servicer shall have furnished to the Purchaser such other opinions,
information, certificates and documents as the Purchaser may reasonably request.
(n) Proceedings in Contemplation of Sale of Purchased Note. All
actions and proceedings undertaken by the Issuer, the Loan Originator, the
Depositor and the Servicer in connection with the issuance and sale of the
Purchased Note as herein contemplated shall be satisfactory in all respects to
the Purchaser and its counsel.
(o) Financial Covenants. The Loan Originator and the Servicer shall
be in compliance with the financial covenants set forth in Section 7.02 of the
Sale and Servicing Agreement.
(p) Trust Accounts Control Agreements. The Purchaser shall have
received control agreements relating to the Trust Accounts satisfactory to the
Purchaser.
(q) Wet Funding Agreement. The Issuer, the Depositor, the Loan
Originator and such other appropriate parties shall have entered into an
agreement concerning the terms, conditions and procedures applicable to the sale
of Wet Funded Loans to the Issuer and the pledge of such Loans to the Indenture
Trustee satisfactory to the Purchaser.
If any condition specified in this Section 4.01 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Purchaser by notice to the Loan Originator at any time at or prior to the
Closing Date, and the Purchaser shall incur no liability as a result of such
termination.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE
ISSUER AND THE DEPOSITOR
The Issuer and the Depositor hereby jointly and severally make the
following representations and warranties to the Purchaser, as of the Closing
Date, and as of each Transfer Date and each Funding Date and the Purchaser shall
be deemed to have relied on such representations and warranties in making (or
committing to make) purchases of Additional Note Principal Balances on each
Transfer Date and each Funding Date:
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SECTION 5.01. Issuer.
(a) The Issuer has been duly organized and is validly existing and
in good standing as a statutory trust under the laws of the State of Delaware,
with requisite trust power and authority to own its properties and to transact
the business in which it is now engaged, and is duly qualified to do business
and is in good standing (or is exempt from such requirements) in each State of
the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the Issuer or any adverse effect on the interests of
the Purchaser.
(b) The issuance, sale, assignment and conveyance of the Purchased
Note and the Additional Note Principal Balances, the performance of the Issuer's
obligations under each Basic Document to which it is a party and the
consummation of the transactions therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any Lien (other than any Lien
created by the Basic Documents), charge or encumbrance upon any of the property
or assets of the Issuer or any of its Affiliates pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it or any of its Affiliates is bound or to which any of its
property or assets is subject, nor will such action result in any violation of
the provisions of its organizational documents or any Governmental Rule
applicable to the Issuer, in each case which could be expected to have a
material adverse effect on the transactions contemplated therein.
(c) No Governmental Action which has not been obtained is required
by or with respect to the Issuer in connection with the execution and delivery
to the Purchaser of the Purchased Note. No Governmental Action which has not
been obtained is required by or with respect to the Issuer in connection with
the execution and delivery of any of the Basic Documents to which the Issuer is
a party or the consummation by the Issuer of the transactions contemplated
thereby except for any requirements under state securities or "blue sky" laws in
connection with any transfer of the Purchased Note.
(d) The Issuer possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
it, and has not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect its condition, financial or
otherwise, or its earnings, business affairs or business prospects.
(e) Each of the Basic Documents to which the Issuer is a party has
been duly authorized, executed and delivered by the Issuer and is a valid and
legally binding obligation of the Issuer, enforceable against the Issuer in
accordance with its terms, subject to enforcement of bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
(f) The execution, delivery and performance by the Issuer of each of
its obligations under each of the Basic Documents to which it is a party will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or
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instrument to which the Issuer is a party or by which the Issuer is bound or to
which any of its properties are subject or of any statute, order or regulation
applicable to the Issuer of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Issuer or any of its properties,
in each case which could be expected to have a material adverse effect on any of
the transactions contemplated therein.
(g) The Issuer is not in violation of its organizational documents
or in default under any agreement, indenture or instrument the effect of which
violation or default would be material to the Issuer or the transactions
contemplated by the Basic Documents. The Issuer is not a party to, bound by or
in breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Issuer that materially and adversely affects, or may in the future
materially and adversely affect (i) the ability of the Issuer to perform its
obligations under any of the Basic Documents to which it is a party or (ii) the
business, operations, financial condition, properties, assets or prospects of
the Issuer.
(h) There are no actions or proceedings against, or investigations
of, the Issuer pending, or, to the knowledge of the Issuer threatened, before
any Governmental Authority, court, arbitrator, administrative agency or other
tribunal (i) asserting the invalidity of any of the Basic Documents, or (ii)
seeking to prevent the issuance of the Purchased Note or the consummation of any
of the transactions contemplated by the Basic Documents or the Purchased Note,
or (iii) that, if adversely determined, could materially and adversely affect
the business, operations, financial condition, properties, assets or prospects
of the Issuer or the validity or enforceability of, or the performance by the
Issuer of its respective obligations under, any of the Basic Documents to which
it is a party or (iv) seeking to affect adversely the income tax attributes of
the Purchased Note.
(i) The Issuer is not, and neither the issuance and sale of the
Purchased Note to the Purchaser nor the activities of the Issuer pursuant to the
Basic Documents, shall render the Issuer an "investment company" or under the
"control" of an "investment company" as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(j) It is not necessary to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(k) The Issuer is solvent and has adequate capital for its business
and undertakings.
(l) The chief executive offices of the Issuer are located at Option
One Owner Trust 2001-1A, c/o Wilmington Trust Company, as Owner Trustee, One
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, or,
with the consent of the Purchaser, such other address as shall be designated by
the Issuer in a written notice to the other parties hereto.
(m) There are no contracts, agreements or understandings between the
Issuer and any Person granting such Person the right to require the filing at
any time of a registration statement under the Act with respect to the Purchased
Note.
10
SECTION 5.02. Securities Act. Assuming the accuracy of the
representations and warranties of and compliance with the covenants of the
Purchaser, contained herein, the sale of the Purchased Note and the sale of
Additional Note Principal Balances pursuant to this Agreement are each exempt
from the registration and prospectus delivery requirements of the Act. In the
case of the offer or sale of the Purchased Note, no form of general solicitation
or general advertising was used by the Issuer, any Affiliates of the Issuer or
any person acting on its or their behalf, including, but not limited to,
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Neither the Issuer, any Affiliates of the
Issuer nor any Person acting on its or their behalf has offered or sold, nor
will the Issuer or any Person acting on its behalf offer or sell directly or
indirectly, the Purchased Note or any other security in any manner that,
assuming the accuracy of the representations and warranties and the performance
of the covenants given by the Purchaser and compliance with the applicable
provisions of the Indenture with respect to each transfer of the Purchased Note,
would render the issuance and sale of the Purchased Note as contemplated hereby
a violation of Section 5 of the Securities Act or the registration or
qualification requirements of any state securities laws, nor has any such Person
authorized, nor will it authorize, any Person to act in such manner.
SECTION 5.03. No Fee. Neither the Issuer, nor the Depositor, nor any
of their Affiliates has paid or agreed to pay to any Person any compensation for
soliciting another to purchase the Purchased Note.
SECTION 5.04. Information. The information provided pursuant to
Section 7.01 (a) hereof will, at the date thereof, be true and correct in all
material respects.
SECTION 5.05. The Purchased Note. The Purchased Note has been duly
and validly authorized, and, when executed and authenticated in accordance with
the terms of the Indenture, and delivered to and paid for in accordance with
this Note Purchase Agreement, will be duly and validly issued and outstanding
and will be entitled to the benefits of the Indenture.
SECTION 5.06. Use of Proceeds. No proceeds of a purchase hereunder
will be used (i) for a purpose that violates or would be inconsistent with
Regulations T, U or X promulgated by the Board of Governors of the Federal
Reserve System from time to time or (ii) to acquire any security in any
transaction in violation of Section 13 or 14 of the Exchange Act.
SECTION 5.07. The Depositor. The Depositor hereby makes to the
Purchaser each of the representations, warranties and covenants set forth in
Section 3.01 of the Sale and Servicing Agreement as of the Closing Date and as
of each Transfer Date (except to the extent that any such representation,
warranty or covenant is expressly made as of another date).
SECTION 5.08. Taxes, etc. Any taxes, fees and other charges of
Governmental Authorities applicable to the Issuer and the Depositor, except for
franchise or income taxes, in connection with the execution, delivery and
performance by the Issuer and the Depositor of each Basic Document to which they
are parties, the issuance of the Purchased Note or otherwise applicable to the
Issuer or the Depositor in connection with the Trust Estate have been paid or
will
11
be paid by the Issuer or the Depositor, as applicable, at or prior to the
Closing Date or Transfer Date, to the extent then due.
SECTION 5.09. Financial Condition. On the date hereof and on each
Transfer Date and each Funding Date, neither the Issuer nor the Depositor is or
will be insolvent or the subject of any voluntary or involuntary bankruptcy
proceeding.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES WITH
RESPECT TO THE PURCHASER
The Purchaser hereby makes the following representations and
warranties, as to itself, to the Issuer and the Depositor on which the same are
relying in entering into this Note Purchase Agreement.
SECTION 6.01. Organization. The Purchaser has been duly organized
and is validly existing and in good standing under the laws of the jurisdiction
of its organization with power and authority to own its properties and to
transact the business in which it is now engaged.
SECTION 6.02. Authority, etc. The Purchaser has all requisite power
and authority to enter into and perform its obligations under this Note Purchase
Agreement and to consummate the transactions herein contemplated. The execution
and delivery by the Purchaser of this Note Purchase Agreement and the
consummation by the Purchaser of the transactions contemplated hereby have been
duly and validly authorized by all necessary organizational action on the part
of the Purchaser. This Note Purchase Agreement has been duly and validly
executed and delivered by the Purchaser and constitutes a legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, subject as to enforcement to bankruptcy,
reorganization, insolvency, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. Neither the execution and delivery by the Purchaser of
this Note Purchase Agreement nor the consummation by the Purchaser of any of the
transactions contemplated hereby, nor the fulfillment by the Purchaser of the
terms hereof, will conflict with, or violate, result in a breach of or
constitute a default under any term or provision of the Purchaser's
organizational documents or any Governmental Rule applicable to the Purchaser.
SECTION 6.03. Securities Act. The Purchaser will acquire the
Purchased Note pursuant to this Note Purchase Agreement without a view to any
public distribution thereof, and will not offer to sell or otherwise dispose of
the Purchased Note (or any interest therein) in violation of any of the
registration requirements of the Act or any applicable state or other securities
laws, or by means of any form of general solicitation or general advertising
(within the meaning of Regulation D under the Securities Act) and will comply
with the requirements of the Indenture. The Purchaser acknowledges that it has
no right to require the Issuer or any other Person to register the Purchased
Note under the Securities Act or any other securities law.
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SECTION 6.04. Conflicts With Law. The execution, delivery and
performance by the Purchaser of its obligations under this Note Purchase
Agreement will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any agreement or instrument to
which the Purchaser is a party or by which the Purchaser is bound or of any
statute, order or regulation applicable to the Purchaser of any court,
regulatory body, administrative agency or governmental body having jurisdiction
over the Purchaser, in each case which could be expected to have a material
adverse effect on the transactions contemplated therein.
SECTION 6.05. Conflicts With Agreements, etc. The Purchaser is not
in violation of its organizational documents or in default under any agreement,
indenture or instrument the effect of which violation or default would be
materially adverse to the Purchaser in the performance of its obligations or
duties under any of the Basic Documents to which it is a party. The Purchaser is
not a party to, bound by or in breach or violation of any indenture or other
agreement or instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over the Purchaser that materially and adversely
affects, or which could be expected in the future to materially and adversely
affect the ability of the Purchaser to perform its obligations under this Note
Purchase Agreement.
ARTICLE VII
COVENANTS OF THE ISSUER AND THE DEPOSITOR
SECTION 7.01. Information from the Issuer. So long as the Purchased
Note remains outstanding, the Issuer and the Depositor shall each furnish to the
Purchaser:
(a) such information (including financial information), documents,
records or reports with respect to the Trust Estate, the Loans, the Residual
Securities, the Advance Note, the Issuer, the Loan Originator, the Servicer or
the Depositor as the Purchaser may from time to time reasonably request;
(b) as soon as possible and in any event within five (5) Business
Days after the occurrence thereof, notice of each Event of Default under the
Sale and Servicing Agreement or the Indenture, and each Default; and
(c) promptly and in any event within 30 days after the occurrence
thereof, written notice of a change in address of the chief executive office of
the Issuer, the Loan Originator or the Depositor.
SECTION 7.02. Access to Information. So long as the Purchased Note
remains outstanding, each of the Issuer and the Depositor shall, at any time and
from time to time during regular business hours, or at such other reasonable
times upon reasonable notice to the Issuer or the Depositor, as applicable,
permit the Purchaser, or their agents or representatives to:
(a) examine all books, records and documents (including computer
tapes and disks) in the possession or under the control of the Issuer or the
Depositor relating to the Loans, the Residual Securities or the Basic Documents
as may be requested, and
13
(b) visit the offices and property of the Issuer and the Depositor
for the purpose of examining such materials described in clause (a) above.
Except as provided in Section 10.05, information obtained by the
Purchaser pursuant to this Section 7.02 and Section 7.01 herein shall be held in
confidence in accordance with and to the extent provided in Sections 11.15 and
11.17 of the Sale and Servicing Agreement.
SECTION 7.03. Ownership and Security Interests; Further Assurances.
The Depositor will take all action necessary to maintain the Issuer's ownership
interest in the Loans, the Residual Securities and the other items sold pursuant
to Article II of the Sale and Servicing Agreement. The Issuer will take all
action necessary to maintain the Indenture Trustee's security interest in the
Loans, the Residual Securities and the other items pledged to the Indenture
Trustee pursuant to the Indenture.
The Issuer and the Depositor agree to take any and all acts and to
execute any and all further instruments reasonably necessary or requested by the
Purchaser to more fully effect the purposes of this Note Purchase Agreement.
SECTION 7.04. Covenants. The Issuer and the Depositor shall each
duly observe and perform each of their respective covenants set forth in each of
the Basic Documents to which they are parties.
SECTION 7.05. Amendments. Neither the Issuer nor the Depositor shall
make, or permit any Person to make, any amendment, modification or change to, or
provide any waiver under any Basic Document to which the Issuer or the
Depositor, as applicable, is a party without the prior written consent of the
Purchaser.
SECTION 7.06. With Respect to the Exempt Status of the Purchased
Note.
(a) Neither the Issuer nor the Depositor, nor any of their
respective Affiliates, nor any Person acting on their behalf will, directly or
indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the
Purchased Note under the Securities Act.
(b) Neither the Issuer nor the Depositor, nor any of their
Affiliates, nor any Person acting on their behalf will engage in any form of
general solicitation or general advertising (within the meaning of Regulation D
promulgated under the Securities Act) in connection with any offer or sale of
the Purchased Note.
(c) On or prior to any Transfer Date or Funding Date, the Issuer and
the Depositor will furnish or cause to be furnished to the Purchaser and any
subsequent purchaser therefrom of Additional Note Principal Balance, if the
Purchaser or such subsequent purchaser so requests, a letter from each Person
furnishing a certificate or opinion on the Closing Date as described in Section
4.01 hereof or on or before any such Transfer Date or Funding Date in which such
Person shall state that such subsequent purchaser may rely upon such original
certificate or opinion as though delivered and addressed to such subsequent
purchaser and made on and as of the
14
Closing Date or such Transfer Date or Funding Date, as the case may be, except
for such exceptions set forth in such letter as are attributable to events
occurring after the Closing Date or such Transfer Date or Funding Date.
ARTICLE VIII
ADDITIONAL COVENANTS
SECTION 8.01. Legal Conditions to Closing. The parties hereto will
take all reasonable action necessary to obtain (and will cooperate with one
another in obtaining) any consent, authorization, permit, license, franchise,
order or approval of, or any exemption by, any Governmental Authority or any
other Person, required to be obtained or made by it in connection with any of
the transactions contemplated by this Note Purchase Agreement.
SECTION 8.02. Expenses.
(a) The Issuer and the Depositor jointly and severally covenant
that, whether or not the Closing takes place, except as otherwise expressly
provided herein, all reasonable costs and expenses incurred in connection with
this Note Purchase Agreement and the transactions contemplated hereby shall be
paid by the Issuer or the Depositor.
(b) The Issuer and the Depositor jointly and severally covenant to
pay as and when billed by the Purchaser all of the reasonable out-of-pocket
costs and expenses incurred in connection with the consummation and
administration of the transactions contemplated hereby and in the other Basic
Documents including, without limitation, (i) all reasonable fees, disbursements
and expenses of counsel to the Purchaser, (ii) all reasonable fees and expenses
of the Indenture Trustee and the Owner Trustee and their counsel and (iii) all
reasonable fees and expenses of the Custodian and its counsel.
SECTION 8.03. Mutual Obligations. On and after the Closing, each
party hereto will do, execute and perform all such other acts, deeds and
documents as the other party may from time to time reasonably require in order
to carry out the intent of this Note Purchase Agreement.
SECTION 8.04. Restrictions on Transfer. The Purchaser agrees that it
will comply with the restrictions on transfer of the Purchased Note set forth in
the Indenture and resell the Purchased Note only in compliance with such
restrictions.
SECTION 8.05. Confidentiality. Each of the Purchaser, the Issuer and
the Depositor shall hold in confidence all Confidential Information and shall
not, at any time hereafter, use, disclose or divulge any such information,
knowledge or data to any Person except:
(a) Information which at the time of disclosure is a part of the
public knowledge or literature and readily accessible;
(b) Information as required to be disclosed by a Governmental
Authority;
15
(c) Disclosure to a Person that has entered into a confidentiality
agreement, acceptable to the Purchaser, the Issuer and the
Depositor; or
(d) Information that is deemed by the Purchaser reasonably
necessary to disclose in connection with its exercise of any
rights or remedies under the Basic Documents.
SECTION 8.06. Information Provided by the Purchaser. The Purchaser
hereby covenants to determine One-Month LIBOR in accordance with the definition
thereof in the Basic Documents and shall give notice to the Indenture Trustee,
the Issuer and the Depositor of the Interest Payment Amount on each
Determination Date. The Purchaser shall cause the Market Value Agent to give
notice to the Indenture Trustee, the Issuer and the Depositor of any Hedge
Funding Requirement on or before the Determination Date related to any Payment
Date. In addition, on each Determination Date, the Purchaser hereby covenants to
give notice to the Indenture Trustee, the Issuer and the Depositor of (i) the
Issuer/Depositor Indemnities (as defined in the Trust Agreement), (ii) Due
Diligence Fees and (iii) the Collateral Value for each Loan and each Residual
Security for the related Payment Date.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Indemnification of Purchaser. Each of the Issuer and
the Depositor hereby agree to, jointly and severally, indemnify and hold
harmless each Indemnified Party against any and all losses, claims, damages,
liabilities, expenses or judgments (including accounting fees and reasonable
legal fees and other expenses incurred in connection with this Note Purchase
Agreement or any other Basic Document and any action, suit or proceeding or any
claim asserted) (collectively, "Losses"), as incurred (payable promptly upon
written request), for or on account of or arising from or in connection with any
information prepared by and furnished or to be furnished by any of the Issuer,
the Loan Originator, the Depositor, the Advance Trust, the Advance Depositor or
the Receivables Seller pursuant to or in connection with the transactions
contemplated hereby including, without limitation, such written information as
may have been and may be furnished in connection with any due diligence
investigation with respect to the business, operations, financial condition of
the Issuer, the Loan Originator, the Depositor, the Advance Trust, the Advance
Depositor or the Receivables Seller or with respect to the Loans, the Residual
Securities or the Advance Note, to the extent such information contains any
untrue statement of material fact or omits to state a material fact necessary to
make the statements contained therein in the light of the circumstances under
which such statements were made not misleading, except with respect to any such
information used by such Indemnified Party in violation of the Basic Documents
which results in such Losses. The indemnities contained in this Section 9.01
will be in addition to any liability which the Issuer or the Depositor may
otherwise have pursuant to this Note Purchase Agreement and any other Basic
Document.
SECTION 9.02. Procedure and Defense. In case any action or
proceeding (including any governmental or regulatory investigation or
proceeding) shall be instituted involving any Indemnified Party in respect of
which indemnity may be sought pursuant to Section 9.01, such Indemnified Party
shall promptly notify the Issuer and the Depositor in writing and, upon request
16
of the Indemnified Party, the Issuer and the Depositor shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
indemnifying party may designate and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding; provided that failure
to give such notice or deliver such documents shall not affect the rights to
indemnity hereunder unless such failure materially prejudices the rights of the
Indemnified Party. The Indemnified Party will have the right to employ its own
counsel in any such action in addition to the counsel of the Issuer and/or the
Depositor, but the reasonable fees and expenses of such counsel will be at the
expense of such Indemnified Party, unless (i) the employment of counsel by the
Indemnified Party at its expense has been reasonably authorized in writing by
the Depositor or the Issuer, (ii) the Depositor or the Issuer has not in fact
employed counsel to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include the Depositor or the Issuer and one or more Indemnified Parties, and the
Indemnified Parties shall have been advised by counsel that there may be one or
more legal defenses available to them which are different from or additional to
those available to the Depositor or the Issuer. Reasonable expenses of counsel
to any Indemnified Party shall be reimbursed by the Issuer and the Depositor as
they are incurred. The Issuer and the Depositor shall not be liable for any
settlement of any proceeding affected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. Neither the
Issuer nor the Depositor will, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such proceeding.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments. No amendment or waiver of any provision
of this Note Purchase Agreement shall in any event be effective unless the same
shall be in writing and signed by all of the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
SECTION 10.02. Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including telecopies) and mailed, telecopied (with a copy delivered by
overnight courier) or delivered, as to each party hereto, at its address as set
forth in Schedule I hereto or at such other address as shall be designated by
such party in a written notice to the other parties hereto. All such notices and
communications shall be deemed effective upon receipt thereof, and in the case
of telecopies, when receipt is confirmed by telephone.
SECTION 10.03. No Waiver; Remedies. No failure on the part of any
party hereto to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise
17
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 10.04. Binding Effect; Assignability.
(a) This Note Purchase Agreement shall be binding upon and inure to
the benefit of the Issuer, the Depositor and the Purchaser and their respective
permitted successors and assigns (including any subsequent holders of the
Purchased Note); provided, however, neither the Issuer nor the Depositor shall
have any right to assign their respective rights hereunder or interest herein
(by operation of law or otherwise) without the prior written consent of the
Purchaser.
(b) The Purchaser may, in the ordinary course of its business and in
accordance with the Basic Documents and applicable law, including applicable
securities laws, at any time sell to one or more Persons (each, a
"Participant"), participating interests in all or a portion of its rights and
obligations under this Note Purchase Agreement. Notwithstanding any such sale by
the Purchaser of participating interests to a Participant, the Purchaser's
rights and obligations under this Note Purchase Agreement shall remain
unchanged, the Purchaser shall remain solely responsible for the performance
thereof, and the Issuer and the Depositor shall continue to deal solely and
directly with the Purchaser and shall have no obligations to deal with any
Participant in connection with the Purchaser's rights and obligations under this
Note Purchase Agreement.
(c) This Note Purchase Agreement shall create and constitute the
continuing obligation of the parties hereto in accordance with its terms, and
shall remain in full force and effect until such time as all amounts payable
with respect to the Purchased Note shall have been paid in full.
SECTION 10.05. Provision of Documents and Information. Each of the
Issuer and the Depositor acknowledges and agrees that the Purchaser is permitted
to provide to any subsequent Purchaser, permitted assignees and Participants,
opinions, certificates, documents and other information relating to the Issuer,
the Depositor, the Loans and the Residual Securities delivered to the Purchaser
pursuant to this Note Purchase Agreement provided that with respect to
Confidential Information, such subsequent Purchaser, permitted assignees and
Participants agree to be bound by Section 8.05 hereof.
SECTION 10.06. GOVERNING LAW; JURISDICTION. THIS NOTE PURCHASE
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS. EACH
OF THE PARTIES TO THIS NOTE PURCHASE AGREEMENT HEREBY AGREES TO THE JURISDICTION
OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND
ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF
THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY
OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
18
SECTION 10.07. No Proceedings. Until the date that is one year and
one day after the last day on which any amount is outstanding under this Note
Purchase Agreement, the Depositor and the Purchaser hereby covenant and agree
that they will not institute against the Issuer or the Depositor, or join in any
institution against the Issuer or the Depositor of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law.
SECTION 10.08. Execution in Counterparts. This Note Purchase
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement.
SECTION 10.09. No Recourse -- Purchaser and Depositor.
(a) The obligations of the Purchaser under this Note Purchase
Agreement, or any other agreement, instrument, document or certificate executed
and delivered by or issued by the Purchaser or any officer thereof are solely
the partnership or corporate obligations of the Purchaser, as the case may be.
No recourse shall be had for payment of any fee or other obligation or claim
arising out of or relating to this Note Purchase Agreement or any other
agreement, instrument, document or certificate executed and delivered or issued
by the Purchaser or any officer thereof in connection therewith, against any
stockholder, limited partner, employee, officer, director or incorporator of the
Purchaser.
(b) The obligations of the Depositor under this Note Purchase
Agreement, or any other agreement, instrument, document or certificate executed
and delivered by or issued by the Depositor or any officer thereof are solely
the partnership or corporate obligations of the Depositor, as the case may be.
No recourse shall be had for payment of any fee or other obligation or claim
arising out of or relating to this Note Purchase Agreement or any other
agreement, instrument, document or certificate executed and delivered or issued
by the Purchaser or any officer thereof in connection therewith, against any
stockholder, limited partner, employee, officer, director or incorporator of the
Depositor.
(c) The Purchaser, by accepting the Purchased Note, acknowledges
that such Purchased Note represents an obligation of the Issuer and does not
represent an interest in or an obligation of the Loan Originator, the Servicer,
the Depositor, the Administrator, the Owner Trustee, the Indenture Trustee or
any Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Purchased Note or the Basic Documents.
SECTION 10.10. Survival. All representations, warranties, covenants,
guaranties and indemnifications contained in this Note Purchase Agreement and in
any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the sale, transfer or repayment of the
Purchased Note.
19
SECTION 10.11. Tax Characterization. Each party to this Note
Purchase Agreement (a) acknowledges and agrees that it is the intent of the
parties to this Note Purchase Agreement that for all purposes, including
federal, state and local income, single business and franchise tax purposes, the
Purchased Note will be treated as evidence of indebtedness secured by the Loans
and the Residual Securities and proceeds thereof and the trust created under the
Indenture will not be characterized as an association (or publicly traded
partnership) taxable as a corporation, (b) agrees to treat the Purchased Note
for federal, state and local income and franchise tax purposes as indebtedness
and (c) agrees that the provisions of all Basic Documents shall be construed to
further these intentions of the parties.
SECTION 10.12. Conflicts. Notwithstanding anything contained herein
to the contrary, in the event of the conflict between the terms of the Sale and
Servicing Agreement and this Note Purchase Agreement, the terms of the Sale and
Servicing Agreement shall control.
SECTION 10.13. Limitation on Liability. It is expressly understood
and agreed by the parties hereto that (a) this Note Purchase Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally, but solely as Owner Trustee of Option One Owner Trust 2001-1 A, 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 Note Purchase Agreement or any other
related documents.
20
IN WITNESS WHEREOF, the parties have caused this Amended and
Restated Note Purchase Agreement to be executed by their respective officers
hereunto duly authorized, as of the date first above written.
OPTION ONE OWNER TRUST 2001-1A
By: Wilmington Trust Company not in its
individual capacity but solely as
owner trustee
By: /s/ Rachel L. Simpson
----------------------------------------
NAME: Rachel L. Simpson
Title: Financial Services Officer
OPTION ONE LOAN WAREHOUSE CORPORATION
By: /s/ C.R. Fulton
----------------------------------------
Name: Charles R. Fulton
Title:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By: /s/ Anthony Palmisano
----------------------------------------
Name: Anthony Palmisano
Title: Vice President
SCHEDULE I
INFORMATION FOR NOTICES
1. if to the Issuer:
Option One Owner Trust 2001-1A
c/o Wilmington Trust Company
as Owner Trustee
One Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Corporate Trust Administration
Telecopy: (302) 636-4144
Telephone: (302)651-1000
with a copy to:
Option One Mortgage Corporation
3 Ada Road
Irvine, California 92618
Attention: William O'Neill
Telecopy number: (949) 790-7540
Telephone number: (949) 790-7504
2. if to the Depositor:
Option One Loan Warehouse Corporation
3 Ada Road
Irvine, California 92618
Attention: William O'Neill
Telecopy number: (949) 790-7540
Telephone number: (949) 790-7504
3. if to the Purchaser:
Greenwich Capital Financial Products, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Attention: Anthony Palmisano
Telecopy: (203)618-2135
Telephone: (203)618-2341
with a copy to:
I-1
Greenwich Capital Financial Products, Inc.
600 Steamboat Road
Greenwich, Connecticut 06830
Attn: Legal Department
Telecopy: (203)618-2132
Telephone: (203)618-2700
I-2