Exhibit 10.6
NOTE PURCHASE AGREEMENT
AMONG
OPTION ONE OWNER TRUST 2005-7
AS ISSUER
AND
OPTION ONE LOAN WAREHOUSE CORPORATION
AS DEPOSITOR
HSBC SECURITIES (USA) INC.,
AS NOTEHOLDER AGENT
AND
HSBC BANK USA, N.A.
and
BRYANT PARK FUNDING LLC
AS PURCHASERS
AND
HSBC SECURITIES (USA) INC.,
AS ADMINISTRATIVE AGENT
DATED AS OF SEPTEMBER 1, 2005
OPTION ONE OWNER TRUST 2005-7
MORTGAGE-BACKED NOTES
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS ................................................... 1
SECTION 1.01 Certain Defined Terms ................................... 1
SECTION 1.02 Other Definitional Provisions ........................... 2
ARTICLE II COMMITMENT; CLOSING AND PURCHASES OF ADDITIONAL NOTE
PRINCIPAL BALANCES ...................................................... 3
SECTION 2.01 Commitment .............................................. 3
SECTION 2.02 Closing ................................................. 4
ARTICLE III TRANSFER DATES .............................................. 5
SECTION 3.01 Transfer Dates .......................................... 5
ARTICLE IV CONDITIONS PRECEDENT TO EFFECTIVENESS OF COMMITMENT .......... 6
SECTION 4.01 Subject to Conditions Precedent ......................... 6
ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE
DEPOSITOR ............................................................... 9
SECTION 5.01 Issuer .................................................. 9
SECTION 5.02 Securities Act .......................................... 11
SECTION 5.03 No Fee .................................................. 12
SECTION 5.04 Information ............................................. 12
SECTION 5.05 The Purchased Notes ..................................... 12
SECTION 5.06 Use of Proceeds ......................................... 12
SECTION 5.07 The Depositor ........................................... 12
SECTION 5.08 Taxes, etc .............................................. 12
SECTION 5.09 Financial Condition ..................................... 12
ARTICLE VI REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
PURCHASER ............................................................... 12
SECTION 6.01 Organization ............................................ 13
SECTION 6.02 Authority, etc .......................................... 13
SECTION 6.03 Securities Act .......................................... 13
SECTION 6.04 Conflicts With Law ...................................... 14
SECTION 6.05 Conflicts With Agreements, etc .......................... 14
ARTICLE VII COVENANTS OF THE ISSUER AND THE DEPOSITOR ................... 14
SECTION 7.01 Information from the Issuer ............................. 14
SECTION 7.02 Access to Information ................................... 14
SECTION 7.03 Ownership and Security Interests; Further Assurances .... 15
SECTION 7.04 Covenants ............................................... 15
SECTION 7.05 Amendments .............................................. 15
SECTION 7.06 With Respect to the Exempt Status of the
Purchased Notes ......................................... 15
ARTICLE VIII ADDITIONAL COVENANTS ....................................... 16
SECTION 8.01 Legal Conditions to Closing ............................. 16
SECTION 8.02 Expenses ................................................ 16
SECTION 8.03 Mutual Obligations ...................................... 16
SECTION 8.04 Restrictions on Transfer ................................ 16
SECTION 8.05 [Reserved] .............................................. 16
SECTION 8.06 Information Provided by the Noteholder Agent ............ 16
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TABLE OF CONTENTS
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ARTICLE IX INDEMNIFICATION .............................................. 17
SECTION 9.01 Indemnification of Purchasers .......................... 17
SECTION 9.02 Procedure and Defense .................................. 17
ARTICLE X MISCELLANEOUS ................................................. 18
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
SECTION 10.06 GOVERNING LAW; JURISDICTION ............................ 19
SECTION 10.07 No Proceedings ......................................... 19
SECTION 10.08 Execution in Counterparts .............................. 20
SECTION 10.09 No Recourse--Purchasers and Depositor .................. 20
SECTION 10.10 Survival ............................................... 20
SECTION 10.11 Waiver of Set-Off ...................................... 20
SECTION 10.12 Tax Characterization ................................... 20
SECTION 10.13 Conflicts .............................................. 21
SECTION 10.14 Service of Process ..................................... 21
SECTION 10.15 Administrative Agent ................................... 21
SECTION 10.16 Limitation on Liability ................................ 22
Schedule I -- Information for Notices
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NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT dated as of September 1, 2005 (the "Note
Purchase Agreement"), among OPTION ONE OWNER TRUST 2005-7 (the "Issuer"), OPTION
ONE LOAN WAREHOUSE CORPORATION (the "Depositor"), HSBC SECURITIES (USA) INC.
(the "Noteholder Agent"), HSBC BANK USA, N.A. and BRYANT PARK FUNDING LLC (the
"Purchasers") and HSBC SECURITIES (USA) INC. (the "Administrative Agent").
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:
"Administrative Agent" means HSBC Securities (USA) Inc., acting as the
administrative agent for the Conduit Purchaser and with the authority to take or
refrain from taking any action herein on behalf of the Conduit Purchaser, as set
forth in Section 10.15.
"Closing" shall have the meaning set forth in Section 2.02.
"Closing Date" shall have the meaning set forth in Section 2.02.
"Committed Purchaser" means HSBC Bank USA, N.A. and its permitted
successors and assigns or an Affiliate thereof identified in writing by HSBC
Bank USA, N.A. to the Indenture Trustee and the other parties hereto, subject to
the consent of the Loan Originator, which may not be unreasonably withheld or
delayed.
"Conduit Purchaser" means Bryant Park Funding LLC.
"Commitment" means the commitment of the Committed Purchaser to
purchase Additional Note Principal Balances pursuant to Section 2.01.
"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 each of the Committed Purchaser, the Conduit
Purchaser and any of their officers, directors, employees, agents,
representatives, assignees and Affiliates and any Person who controls any of the
Purchasers or their Affiliates within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and any provider of liquidity
or credit enhancement to the Conduit Purchaser.
"Indenture" means the Indenture dated as of September 1, 2005 between
the Issuer as Issuer and Wells Fargo Bank, N.A. as Indenture Trustee.
"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" has the meaning set forth in the
Pricing Letter.
"Pricing Letter" means the pricing letter among the Issuer, the
Depositor, Option One and the Indenture Trustee, dated the date hereof and any
amendments thereto.
"Purchased Notes" means the Option One Owner Trust 2005-7
Mortgage-Backed Notes issued by the Issuer pursuant to the Indenture.
"Purchasers" means the Committed Purchaser and the Conduit Purchaser
and their permitted successors and assigns.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement
dated as of September 1, 2005, among the Issuer, the Depositor, the Loan
Originator, the Servicer and Wells Fargo Bank, N.A. as the Indenture Trustee, as
the same may be amended, modified or supplemented from time to time.
"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.
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(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, schedules 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.
(a) (i) At any time during the Revolving Period at least two Business
Days in the case of a Loan that is not a Wet Funded Loan, or at least one
Business Day, in the case of a Wet Funded Loan, prior to a proposed Transfer
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 Purchasers purchase
Additional Note Principal Balances (each such request, a "Purchase Request").
Each Purchase Request shall identify the proposed Transfer Date, an estimate of
the number of Loans and aggregate Principal Balance of the Loans that will be
purchased by the Issuer on such Transfer Date. On the identified Transfer Date,
the Committed Purchaser agrees to purchase the Additional Note Principal Balance
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; provided however, that the portion of such
Additional Note Principal Balance required to be purchased by the Committed
Purchaser shall be reduced by the amount of such Additional Note Principal
Balance that the Conduit Purchaser purchases pursuant to Section 2.01(a)(ii).
(ii) In the event that the Conduit Purchaser elects, in its sole
discretion, to purchase any Additional Note Principal Balance with respect to
any Purchase Request hereunder, the Conduit Purchaser shall purchase such
related Additional Note Principal Balance hereunder and the amount of Additional
Note Principal Balance to be purchased by the Committed Purchaser shall be
reduced by such amount.
(b) (i) Notwithstanding any other provision of this Note Purchase
Agreement, and in order to reduce the number of fund transfers among the parties
hereto, the Issuer, the Noteholder Agent and the Purchasers agree that the
Noteholder Agent may (but shall
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not be obligated to), and the Issuer and the Purchasers hereby irrevocably
authorize the Noteholder Agent to fund, on behalf of the Purchasers, purchases
of Additional Note Principal Balances pursuant to this Section 2.01; provided,
however, that the Noteholder Agent shall in no event fund such purchase of
Additional Note Principal Balances if the Noteholder Agent shall have determined
that one or more of the conditions precedent contained in Section 3.01(a) will
not be satisfied on the day of the proposed purchase of Additional Note
Principal Balances. If the Issuer gives a Purchase Request requesting a purchase
of Additional Note Principal Balances and the Noteholder Agent elects not to
fund such proposed purchase of Additional Note Principal Balances on behalf of
the Purchasers, then promptly after receipt of the Purchase Request requesting
such purchase of Additional Note Principal Balances, the Noteholder Agent shall
notify each Purchaser of the specifics contained in such Purchase Request and
that it will not fund such Purchase Request on behalf of the Purchasers. If the
Noteholder Agent notifies the Purchasers that it will not fund a requested
purchase of Additional Note Principal Balances on behalf of the Purchasers, each
Purchaser shall purchase its respective portion of the Additional Note Principal
Balance pursuant to Section 2.01(a), by remitting the required funds to the
Issuer pursuant to and in accordance with Section 3.01(b) hereof. If the
Noteholder Agent elects to fund a requested purchase of Additional Note
Principal Balances, the Noteholder Agent will remit the required funds for such
Purchase Request to the Issuer pursuant to and in accordance with Section
3.01(b) hereof.
(ii) If the Noteholder Agent has notified the Purchasers that the
Noteholder Agent, on behalf of the Purchasers, will fund a particular purchase
of Additional Note Principal Balances pursuant to Section 2.01(b)(i), the
Noteholder Agent may assume that such Purchaser has made such amount available
to the Noteholder Agent on such day and the Noteholder Agent, in its sole
discretion, may, but shall not be obligated to, cause a corresponding amount to
be made available to the Issuer on such day. If the Noteholder Agent makes such
corresponding amount available to the Issuer and such corresponding amount is
not in fact made available to the Noteholder Agent by such Purchaser, the
Noteholder Agent shall be entitled to recover such corresponding amount on
demand from such Purchaser together with interest thereon, for each day from the
date such payment was due until the date such amount is paid to the Noteholder
Agent, at the Note Interest Rate. During the period in which such Purchaser has
not paid such corresponding amount to the Noteholder Agent, notwithstanding
anything to the contrary contained in this Note Purchase Agreement or any other
Basic Document, the amount so advanced by the Noteholder Agent to the Issuer
shall, for all purposes hereof, be a purchase of Additional Note Principal
Balances made by the Noteholder Agent for its own account. Upon any such failure
by a Purchaser to pay the Noteholder Agent, the Noteholder Agent shall promptly
thereafter notify the Issuer of such failure and the Issuer shall immediately
pay such corresponding amount to the Noteholder Agent for its own account.
(iii) Nothing in this Section 2.01(b) shall be deemed to relieve
the Committed Purchaser from its obligations to fulfill its Commitment hereunder
or to prejudice any rights that the Noteholder Agent or the Issuer may have
against the Committed Purchaser as a result of any default by such Committed
Purchaser hereunder. The Issuer shall have no obligation under or arising out of
this Section 2.01(b).
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 Thacher
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Proffitt & Wood, Two World Financial Center, New York, New York 10281 on
September 22, 2005, 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 Date").
ARTICLE III
TRANSFER 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 Conduit Purchaser may, and the Committed
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 in all material respects 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 material compliance with all of their respective covenants
contained in the Basic Documents and the Purchased Notes;
(iv) No Event of Default and no Default shall have occurred or
shall be occurring;
(v) With respect to each Transfer Date, the Purchasers and the
Noteholder Agent shall have received evidence reasonably satisfactory to them of
the completion of all recordings, registrations, and filings as may be necessary
or, in the reasonable opinion of the Purchasers, 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 Loan Purchase Agreement
including, without limitation, the assignment of the Loans and the proceeds
thereof;
(vi) Each Loan (i) has been originated in accordance with the
Underwriting Guidelines and (ii) is not "abusive" or "predatory" as defined in
or in violation of any applicable statutes, regulations, ordinances or in any
other way that would be otherwise actionable by the Borrower or any governmental
authority;
(vii) With respect to the first Transfer Date, each of the
Purchasers shall have completed their initial due diligence review with respect
to the Loans and the Loan Originator and determined, in such Purchaser's sole
discretion, that both the Loans and the
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origination, servicing and business practices of the Loan Originator are
reasonably acceptable to such Purchaser; and
(viii) The Purchasers shall have received, in form and substance
reasonably satisfactory to the Purchasers, an Officer's Certificate from the
Loan Originator, dated the Closing Date, certifying to the satisfaction of the
conditions set forth in the preceding paragraphs (i), (ii), (iii), (iv) and
(vi).
(b) The price paid by the Purchasers 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 3:30 p.m. (New York City time) on the Transfer Date by wire
transfer of immediately available funds to the Advance Account.
(c) Each Purchaser shall record on the schedule attached to the
Purchased Notes, 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 any
Purchaser's rights with respect to its Note Principal Balance and any right to
receive interest payments in respect of the Note Principal Balance actually
held. Absent manifest error, the Note Principal Balance of the Purchased Notes
as set forth in each Purchaser's records shall be binding upon the parties
hereto, notwithstanding any notation or record made or kept by any other party
hereto.
(d) Each 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.
ARTICLE IV
CONDITIONS PRECEDENT TO EFFECTIVENESS OF COMMITMENT
SECTION 4.01 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 Committed
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).
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(c) Officer's Certificate. The Purchasers shall have received, in form
and substance reasonably satisfactory to the Purchasers, 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).
(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 Purchasers favorable
opinions, dated as of the Closing Date and reasonably satisfactory in form and
substance to the Purchasers and their counsel. In addition to the foregoing, the
Loan Originator shall have caused its counsel to deliver to the Purchasers 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 Purchasers a favorable opinion,
dated as of the Closing Date and reasonably satisfactory in form and substance
to the Purchasers and their 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
Purchasers 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 Purchasers may reasonably request, dated as of the
Closing Date and reasonably satisfactory in form and substance to the Purchasers
and their counsel.
(g) Filings and Recordations. Each 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 Purchasers, 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, (ii) the completion of all
recordings, registrations and filings as may be necessary or, in the reasonable
opinion of the Purchasers, 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 the proceeds thereof and
(iii) the completion of all recordings, registrations, and filings as may be
necessary or, in the reasonable opinion of the Purchasers, 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, in favor of the Indenture Trustee, subject to no Liens prior to the
Lien of the Indenture.
(h) Documents. The Purchasers shall have received a duly executed
counterpart of each of the Basic Documents, in form reasonably acceptable to the
Purchasers, the Purchased Notes and each and every document or certification
delivered by any party in connection with any of the Basic Documents or the
Purchased Notes, and each such document shall be in full force and effect.
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(i) Due Diligence. Each Purchaser shall have completed its due
diligence review with respect to the Loans, as provided for in Section 11.15 of
the Sale and Servicing Agreement.
(j) 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 Notes and the
documents related thereto in any material respect.
(k) Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Basic Documents, the Purchased Notes and the documents related thereto
shall have been obtained or made.
(l) Accounts. Each 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.
(m) Fees and Expenses. The fees and expenses payable by the Issuer and
the Depositor pursuant to Section 8.02(b) hereof shall have been paid.
(n) Other Documents. The Issuer, the Loan Originator, the Depositor
and the Servicer shall have furnished to the Purchasers such other opinions,
information, certificates and documents as the Purchasers may reasonably
request.
(o) Proceedings in Contemplation of Sale of Purchased Notes. 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 Notes as herein contemplated shall be reasonably satisfactory in all
respects to the Purchasers and their counsel.
(p) 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.
(q) Trust Accounts Control Agreements. The Purchasers shall have
received control agreements relating to the Trust Accounts reasonably
satisfactory to the Purchasers.
(r) Underwriting Guidelines. The Purchasers shall have received a copy
of the current Underwriting Guidelines.
(s) Fees. The Loan Originator shall have paid all fees, costs and
expenses of the Purchasers required, by the terms of the Basic Documents, to be
paid by the Loan Originator on or before the Closing Date.
If any condition specified in this Section 4.01 shall not have been
fulfilled when and as required to be fulfilled through no fault of the
Purchasers, this Note Purchase Agreement may be terminated by the Purchasers by
notice to the Loan Originator at any time at or prior to the Closing Date, and
the Purchasers shall incur no liability as a result of such termination.
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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 Purchasers, as of the Closing
Date, and as of each Transfer Date and the Purchasers 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:
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, individually or
in the aggregate, have a material adverse effect on (a) the interests of the
Purchasers, (b) the legality, validity or enforceability of this Note Purchase
Agreement or any other Transaction Document or the rights or remedies of the
Purchasers or the Indenture Trustee hereunder or thereunder, (c) the ability of
the Issuer to perform its obligations under this Note Purchase Agreement or any
other Transaction Document, (d) the Indenture Trustee's security interest in the
Collateral generally or in any Loan or other item of Collateral or (e) the
enforceability or recoverability of any of the Loans (a "Material Adverse
Effect").
(b) The issuance, sale, assignment and conveyance of the Purchased
Notes 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.
(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 of
the Purchased Notes. 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 Notes.
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(d) The Issuer possesses all material licenses, certificates,
authorizations 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, authorization 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 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.
(g) The Issuer is not in violation of its organizational documents or
in default under any agreement, indenture or instrument which would have a
Material Adverse Effect. 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 could, individually or in the aggregate, be expected to have a Material
Adverse Effect.
(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 Notes or the consummation of
any of the transactions contemplated by the Basic Documents or the Purchased
Notes, or (iii) that, if adversely determined, could, individually or in the
aggregate, be expected to have a Material Adverse Effect.
(i) Neither this Note Purchase Agreement, the other Basic Documents
nor any transaction contemplated herein or therein shall result in a violation
of, or give rise to an obligation on the part of either Purchaser to register,
file or give notice under, Regulations T, U or X of the Federal Reserve Board or
any other regulation issued by the Federal Reserve Board pursuant to the
Exchange Act, in each case as in effect on the Closing Date.
(j) The Issuer has all necessary power and authority to execute and
deliver the Purchased Notes. Each Purchased Note has been duly and validly
authorized by the Issuer and, from and after the date on which such Purchased
Note is executed by the Issuer and authenticated by the Indenture Trustee in
accordance with the terms of the Indenture and
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delivered to and paid for by the Purchasers in accordance with the terms of this
Note Purchase Agreement, shall be validly issued and outstanding and shall
constitute a valid and legally binding obligation of the Issuer that is entitled
to the benefits of the Indenture and enforceable against the Issuer in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general principles of equity,
regardless of whether enforceability is considered in a proceeding in equity or
at law.
(k) The Issuer is not, and neither the issuance and sale of the
Purchased Notes to the Purchasers 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").
(l) It is not necessary to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(m) The Issuer is solvent and has adequate capital for its business
and undertakings.
(n) The chief executive offices of the Issuer are located at Option
One Owner Trust 2005-7, 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 Purchasers, such other address as shall be designated by
the Issuer in a written notice to the other parties hereto.
(o) 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
Notes.
(p) No Default or Event of Default exists.
SECTION 5.02 Securities Act. Assuming the accuracy of the
representations and warranties of and compliance with the covenants of the
Purchasers, contained herein, the sale of the Purchased Notes and the sale of
Additional Note Principal Balances pursuant to this Note Purchase 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 Notes, 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, any Affiliates of the Issuer or any Person acting on its
behalf offer or sell directly or indirectly, the Purchased Notes 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 Purchasers and
compliance with the applicable provisions of the Indenture with respect to each
transfer of the Purchased Notes, would render the
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issuance and sale of the Purchased Notes 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 the Issuer 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 Notes.
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 Notes. The Purchased Notes have 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
Purchasers 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 Notes or otherwise applicable to the
Issuer or the Depositor in connection with the Trust Estate have been paid or
will 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, 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 PURCHASERS
Each 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.
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SECTION 6.01 Organization. Each 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. Each 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 Purchasers of this Note Purchase Agreement and the
consummation by the Purchasers of the transactions contemplated hereby have been
duly and validly authorized by all necessary organizational action on the part
each Purchaser. This Note Purchase Agreement has been duly and validly executed
and delivered by the Purchasers and constitutes a legal, valid and binding
obligation of each Purchaser, enforceable against each Purchaser in accordance
with its terms, subject to enforcement of 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 Purchasers of this Note Purchase Agreement nor
the consummation by the Purchasers of any of the transactions contemplated
hereby, nor the fulfillment by the Purchasers of the terms hereof, will conflict
with, or violate, result in a breach of or constitute a default under any term
or provision of such Purchaser's organizational documents or any Governmental
Rule applicable to such Purchaser.
SECTION 6.03 Securities Act. The Purchasers hereby represents and
warrants to the Issuer and the Depositor as of the date of this Note Purchase
Agreement, as follows:
(a) Each Purchaser has such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of the
purchase of an interest in the Note. Each Purchaser (i) is (A) a "qualified
institutional buyer" as defined under Rule 144A promulgated under the Securities
Act of 1933, as amended (the "1933 Act"), acting for its own account or the
accounts of other "qualified institutional buyers" as defined under Rule 144A,
or (B) an "accredited investor" within the meaning of Regulation D promulgated
under the 1933 Act, and (ii) is aware that the Issuer intends to rely on the
exemption from registration requirements under the 1933 Act provided by Rule
144A or Regulation D, as applicable.
(b) Each Purchaser understands that neither the Note nor interests in
the Note have been registered or qualified under the 1933 Act, nor under the
securities laws of any state, and therefore neither the Note nor interests in
the Note can be resold unless they are registered or qualified thereunder or
unless an exemption from registration or qualification is available.
(c) It is the intention of each Purchaser to acquire interests in the
Note (a) for investment for its own account, or (b) for resale to "qualified
institutional buyers" in transactions under Rule 144A, and not in any event with
the view to, or for resale in connection with, any distribution thereof. The
Purchasers understand that the Note and interests therein have not been
registered under the 1933 Act by reason of a specific exemption from the
registration provisions of the 1933 Act which depends upon, among other things,
the bona fide nature of each Purchaser's investment intent (or intent to resell
only in Rule 144A transactions) as expressed herein.
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SECTION 6.04 Conflicts With Law. The execution, delivery and
performance by each 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 each such Purchaser is a party or by which each such Purchaser is bound or
of any statute, order or regulation applicable to each such Purchaser of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over each such 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. Each 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. Each 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 each such Purchaser that materially and adversely
affects, the ability of each 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
Notes remain outstanding, the Issuer and the Depositor shall each furnish to the
Purchasers:
(a) the financial information required to be delivered by the Servicer
under Section 4.02(a) of the Sale and Servicing Agreement;
(b) such information (including financial information), documents,
records or reports with respect to the Trust Estate, the Loans, the Issuer, the
Loan Originator, the Servicer or the Depositor as the Purchasers may from time
to time reasonably request;
(c) as soon as possible and in any event within two (2) 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
(d) promptly and in any event within thirty (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 Notes
remain 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 Purchasers, or their agents or representatives to:
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(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 or the Basic Documents as may be requested, and
(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
Purchasers 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 as if it constituted "Confidential
Information" (as defined therein).
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 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 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
Purchasers 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 a party.
SECTION 7.05 Amendments. Neither the Issuer nor the Depositor shall
make, nor 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
Purchasers.
SECTION 7.06 With Respect to the Exempt Status of the Purchased Notes.
(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 Notes
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 Notes.
(c) On or prior to any Transfer Date, the Issuer and the Depositor
will furnish or cause to be furnished to the Purchasers and any subsequent
purchaser therefrom of Additional Note Principal Balance, if the Purchasers or
any such subsequent purchaser so request, 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 in which such Person shall state that
such
15
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 Closing Date or such Transfer 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.
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 Purchasers, subject to the applicable limit on Due
Diligence Fees set forth in Section 11.15 of the Sale and Servicing Agreement,
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 Purchasers, (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
any other party hereto 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. Each Purchaser agrees that it
will comply with the restrictions on transfer of the Purchased Notes set forth
in the Indenture and will resell the Purchased Notes only in compliance with
such restrictions.
SECTION 8.05 [Reserved].
SECTION 8.06 Information Provided by the Noteholder Agent. The
Noteholder Agent 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 Noteholder Agent shall cause the Market Value
Agent to give notice to the Indenture Trustee, the Issuer and the Depositor of
16
any Hedge Funding Requirement on or before the Determination Date related to any
Payment Date. In addition, on each Determination Date, the Noteholder Agent
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
for the related Payment Date.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01 Indemnification of Purchasers. 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,
reasonable expenses or judgments (including reasonable accounting fees and
reasonable legal fees and other reasonable 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 or the Depositor 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 or with respect to the Loans, 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 or as a result of an Indemnified Party's gross negligence or
willful misconduct 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 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 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
17
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 for which the Issuer and the Depositor are responsible
hereunder 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 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 Purchasers and their respective
permitted successors and assigns (including any subsequent holders of the
Purchased Notes); 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
Purchasers.
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(b) The Purchasers 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 Purchasers of participating interests to a Participant, the Purchasers'
rights and obligations under this Note Purchase Agreement shall remain
unchanged, the Purchasers shall remain solely responsible for the performance
thereof, and the Issuer and the Depositor shall continue to deal solely and
directly with the Purchasers and shall have no obligations to deal with any
Participant in connection with the Purchasers' 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 Notes 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 each 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 and the Loans delivered to each 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 7.02 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 OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW. 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 TO THIS
NOTE PURCHASE AGREEMENT 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.
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 Purchasers hereby covenant and agree
that they will not institute against the Issuer or the Depositor or the Conduit
Purchaser, or join in any institution against the Issuer or the Depositor or the
Conduit Purchaser of, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any United States federal or
state bankruptcy or similar law.
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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 -- Purchasers and Depositor.
(a) The obligations of the Purchasers under this Note Purchase
Agreement, or any other agreement, instrument, document or certificate executed
and delivered by or issued by the Purchasers or any officer thereof are solely
the partnership or corporate obligations of the Purchasers, 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 Purchasers or any officer thereof in connection therewith, against any
stockholder, limited partner, employee, officer, director or incorporator of the
Purchasers.
(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 Depositor or any officer thereof in connection therewith, against any
stockholder, limited partner, employee, officer, director or incorporator of the
Depositor.
(c) The Purchasers, by accepting the Purchased Notes, acknowledge that
such Purchased Notes represent an obligation of the Issuer and do 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 Note
Purchase Agreement, the Purchased Notes 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 Notes and the termination of this Note Purchase Agreement.
SECTION 10.11 Waiver of Set-Off. All payments due to Noteholders
hereunder and under any of the Basic Documents, including without limitation all
payments on account of principal, interest and fees, if any, shall be made to
the Noteholders, without set-off, recoupment or counterclaim, and each of the
Depositor and the Issuer hereby waive any and all right of set-off, recoupment
or counterclaim hereunder or under any of the Basic Documents.
SECTION 10.12 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 Notes
will be treated as evidence of indebtedness secured by
20
the Loans 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 Notes 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 10.13 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 10.14 Service of Process. Each of the Depositor and the Issuer
agrees that until such time as the Purchased Notes have been paid in full, each
such party shall have appointed an agent registered with the Secretary of State
of the State of New York, with an office in the County of New York in the State
of New York, as its true and lawful attorney and duly authorized agent for
acceptance of service of legal process. Each of the Depositor and the Issuer
agrees that service of such process upon such person shall constitute personal
service of such process upon it.
SECTION 10.15 Administrative Agent. The Conduit Purchaser hereby
irrevocably appoints and authorizes the Administrative Agent to perform the
duties of the Conduit Purchaser. As to any matters not expressly provided for by
this Note Purchase Agreement or the other Basic Documents, the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Conduit
Purchaser; provided, however, that the Administrative Agent shall not be
required to take any action which, in the reasonable opinion of the
Administrative Agent, exposes the Administrative Agent to liability or which is
contrary to this Note Purchase Agreement or any other Basic Document or
applicable law. The duties of the Administrative Agent shall be mechanical and
administrative in nature. The Administrative Agent shall not have by reason of
this Note Purchase Agreement or any other Basic Document a fiduciary
relationship in respect of any Noteholder. Nothing in this Note Purchase
Agreement or any other Basic Document, express or implied, is intended to or
shall be construed to impose upon the Administrative Agent any obligations in
respect of this Note Purchase Agreement or any other Basic Document except as
expressly set forth herein or therein. The Administrative Agent and its
directors, officers, agents or employees shall not be liable for any action
taken or omitted to be taken by it under or in connection with this Note
Purchase Agreement or any other Basic Document unless such action or inaction
shall constitute gross negligence or willful misconduct on the part of the
Administrative Agent or its directors, officers, agents or employees. The
Administrative Agent may at any time request instructions from the Conduit
Purchaser with respect to any actions or approvals which by the terms of this
Note Purchase Agreement or any other Basic Document the Administrative Agent is
permitted or required to take or to grant, and if such instructions are promptly
requested, the Administrative Agent shall be absolutely entitled to refrain from
taking any action or to withhold any approval under any of the other Basic
Document until it shall have received such instructions from the Conduit
Purchaser. Without limiting the foregoing, the Conduit Purchaser shall not have
any right of action whatsoever against the Administrative Agent as a result of
the Administrative Agent acting or refraining from acting under this Note
Purchase Agreement, the Notes or any of the other Basic Document in accordance
with the instructions of the Conduit Purchaser.
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SECTION 10.16 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 2005-7, 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.
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IN WITNESS WHEREOF, the parties have caused this Note Purchase
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
OPTION ONE OWNER TRUST 2005-7
By: Wilmington Trust Company, not in its
individual capacity but solely as
owner trustee
By: /s/ Mary Kay Pupillo
------------------------------------
Name: Mary Kay Pupillo
Title: Assistant Vice President
OPTION ONE LOAN WAREHOUSE CORPORATION
By: /s/ CR Fulton
------------------------------------
Name: Charles R. Fulton
Title: Assistant Secretary
HSBC Bank USA, N.A.,
as Committed Purchaser
By: /s/ Peter Nealon
------------------------------------
Name: Peter Nealon
Title:
Bryant Park Funding LLC,
as Conduit Purchaser
By: /s/ Andrew Yearde
------------------------------------
Name: Andrew Yearde
Title:
Note Purchase Agreement 2005-7
HSBC Securities (USA) Inc.,
as Noteholder Agent
By: /s/ Thomas Carrol
------------------------------------
Name: Thomas Carrol
Title:
HSBC Securities (USA) Inc.,
as Administrative Agent
By: /s/ Thomas Carrol
------------------------------------
Name: Thomas Carrol
Title:
Note Purchase Agreement 2005-7
SCHEDULE I
INFORMATION FOR NOTICES
1. if to the Issuer:
Option One Owner Trust 2005-7
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) 636-1000
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 Purchasers:
HSBC Bank USA, N.A.
452 Fifth Avenue
New York, New York 10018
Attention: Peter Nealon
Telecopy number: (212) 525-2479
Telephone number: (212) 525-8141
Bryant Park Funding LLC
c/o Global Securitization Services, LLC
445 Broad Hollow Road, Suite 239
Melville, New York 11747
Attention: Andrew Yearde
Telecopy number: (212) 302-5151
Schedule I
Telephone number: (212) 302-8767
4. if to the Noteholder Agent:
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
Attention: Thomas Carroll
Telecopy number: (646) 366-3476
Telephone number: (212) 525-2059
5. if to the Administrative Agent:
HSBC Securities (USA) Inc.
452 Fifth Avenue
New York, New York 10018
Attention: Thomas Carroll
Telecopy number: (646) 366-3476
Telephone number: (212) 525-2059
Schedule I