NOTE PURCHASE AGREEMENT among OPTION ONE OWNER TRUST 2003-5 as Issuer and OPTION ONE LOAN WAREHOUSE CORPORATION as Depositor and CITIGROUP GLOBAL MARKETS REALTY CORP. as Purchaser Dated as of November 14, 2003 OPTION ONE OWNER TRUST 2003-5...
EXHIBIT 10.5
among
OPTION ONE OWNER TRUST 2003-5
as Issuer
and
OPTION ONE LOAN WAREHOUSE CORPORATION
as Depositor
and
CITIGROUP GLOBAL MARKETS REALTY CORP.
as Purchaser
Dated as of November 14, 2003
OPTION ONE OWNER TRUST 2003-5
MORTGAGE-BACKED NOTES
TABLE OF CONTENTS
Page |
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ARTICLE I |
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SECTION 1.01. Certain Defined Terms |
1 | |||
SECTION 1.02. Other Definitional Provisions |
2 | |||
ARTICLE II |
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COMMITMENT; CLOSING AND PURCHASES OF ADDITIONAL NOTE PRINCIPAL BALANCES |
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SECTION 2.01. Commitment |
3 | |||
SECTION 2.02. Closing |
3 | |||
ARTICLE III |
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TRANSFER DATES |
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SECTION 3.01. Transfer Dates |
4 | |||
ARTICLE IV |
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CONDITIONS PRECEDENT TO EFFECTIVENESS OF COMMITMENT |
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SECTION 4.01. Closing Subject to Conditions Precedent |
5 | |||
ARTICLE V |
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REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE DEPOSITOR |
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SECTION 5.01. Issuer |
7 | |||
SECTION 5.02. Securities Act |
9 | |||
SECTION 5.03. No Fee |
10 | |||
SECTION 5.04. Information |
10 | |||
SECTION 5.05. The Purchased Note |
10 | |||
SECTION 5.06. Use of Proceeds |
10 | |||
SECTION 5.07. The Depositor |
10 | |||
SECTION
5.08. Taxes, etc. |
10 | |||
SECTION 5.09. Financial Condition |
10 |
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Page |
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ARTICLE VI |
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REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASER |
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SECTION 6.01. Organization |
11 | |||
SECTION
6.02. Authority, etc. |
11 | |||
SECTION 6.03. Securities Act |
11 | |||
SECTION 6.04. Conflicts With Law |
11 | |||
SECTION
6.05. Conflicts With Agreements, etc. |
11 | |||
ARTICLE VII |
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COVENANTS OF THE ISSUER AND THE DEPOSITOR |
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SECTION 7.01. Information from the Issuer |
12 | |||
SECTION 7.02. Access to Information |
12 | |||
SECTION 7.03. Ownership and Security Interests; Further Assurances |
12 | |||
SECTION 7.04. Covenants |
13 | |||
SECTION 7.05. Amendments |
13 | |||
SECTION 7.06. With Respect to the Exempt Status of the Purchased Note |
13 | |||
ARTICLE VIII |
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ADDITIONAL COVENANTS |
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SECTION 8.01. Legal Conditions to Closing |
13 | |||
SECTION 8.02. Expenses |
13 | |||
SECTION 8.03. Mutual Obligations |
14 | |||
SECTION 8.04. Restrictions on Transfer |
14 | |||
SECTION 8.05. Confidentiality |
14 | |||
SECTION 8.06. Information Provided by the Purchaser |
14 | |||
ARTICLE IX |
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INDEMNIFICATION |
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SECTION 9.01. Indemnification of Purchaser |
15 | |||
SECTION 9.02. Procedure and Defense |
15 | |||
ARTICLE X |
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MISCELLANEOUS |
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SECTION 10.01. Amendments |
16 |
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Page |
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SECTION 10.02. Notices |
16 | |||
SECTION 10.03. No Waiver; Remedies |
16 | |||
SECTION 10.04. Binding Effect; Assignability |
16 | |||
SECTION 10.05. Provision of Documents and Information |
17 | |||
SECTION 10.06. GOVERNING LAW; JURISDICTION |
17 | |||
SECTION 10.07. No Proceedings |
17 | |||
SECTION 10.08. Execution in Counterparts |
17 | |||
SECTION 10.09. No Recourse — Purchaser and Depositor |
17 | |||
SECTION 10.10. Survival |
18 | |||
SECTION 10.12. Conflicts |
18 | |||
SECTION 10.13. Limitation on Liability |
18 |
Schedule I — Information for Notices
iii
NOTE PURCHASE AGREEMENT dated as of November 14, 2003 (the “Note Purchase Agreement”), among OPTION ONE OWNER TRUST 2003-5 (the “Issuer”), OPTION ONE LOAN WAREHOUSE CORPORATION (the “Depositor”), and CITIGROUP GLOBAL MARKETS REALTY CORP. (“Citigroup,” and in its capacity as Purchaser hereunder, the “Purchaser”).
The parties hereto agree as follows:
ARTICLE I
“Closing” shall have the meaning set forth in Section 2.02.
“Closing Date” 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.
“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 October 1, 2003 between the Issuer as Issuer and Xxxxx Fargo Bank Minnesota, National Association 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 Mortgage Corporation, a California corporation.
“Maximum Note Principal Balance” means an amount equal to $1,000,000,000.
“Purchaser” means the Purchaser and its permitted successors and assigns.
“Purchased Note” means the Option One Owner Trust 2003-5 Mortgage-Backed Note issued by the Issuer pursuant to the Indenture.
“Sale and Servicing Agreement” means the Sale and Servicing Agreement dated as of November 1, 2003, among the Issuer, the Depositor, the Loan Originator, the Servicer and Xxxxx Fargo Bank Minnesota, National Association 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.
(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.
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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, 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 the proposed Transfer Date and an estimate of the number of Loans and aggregate Principal Balance of such Loans to be purchased by the Issuer on such Transfer Date. On the identified Transfer 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 Percentage of the related Loans. The Purchaser may in its sole discretion agree to purchase such Additional Note Principal Balances.
ARTICLE III
(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:
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(i) With respect to each Transfer Date, each condition set forth in Section 2.6 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 Note; occurring;
(iv) No Event of Default and no Default shall have occurred or shall be
(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 including, without limitation, the assignment of the Loans and the proceeds thereof required to be assigned pursuant to the related LPA Assignment, S&SA Assignment and the Indenture;
(vi) Each Loan (i) has been originated in accordance with the Underwriting Guidelines and (ii) is not “abusive” or “predatory”; and
(vii) With respect to the first Transfer Date, the Purchaser shall have completed its initial due diligence review with respect to the Loans and the Loan Originator and determined, in the Purchaser’s sole discretion, that both the Loans and the origination, servicing and business practices of the Loan Originator are reasonably acceptable to the Purchaser. Unless otherwise agreed by the parties, the Purchaser shall make such determination, and shall deliver written notice of such determination to the Loan Originator, by the close of business on November 21, 2003. Should the Purchaser fail to deliver such notice to the Loan Originator by the close of business on November 21, 2003, this condition shall be deemed satisfied.
(viii) With respect to any Transfer Date after the first Transfer Date and on or before December 3, 2003 (unless otherwise agreed by the parties), the Purchaser shall not have delivered to the Loan Originator a written notice to the effect that it has completed its final due diligence review with respect to the Loans and the Loan Originator and has determined, in its sole discretion, that either the Loans or the origination, servicing or business practices of the Loan Originator or both are not reasonably acceptable to the Purchaser. Should the Purchaser fail to deliver such notice to the Loan Originator by the close of business on December 3, 2003, this condition shall be deemed satisfied.
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(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.
ARTICLE IV
CONDITIONS PRECEDENT TO
EFFECTIVENESS OF COMMITMENT
(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.
(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 reasonably 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
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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.
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(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 reasonably satisfactory in all respects to the Purchaser and its counsel.
(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 reasonably 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 through no fault of the Purchaser, 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 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:
(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
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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 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.
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(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 2003-5, c/o Wilmington Trust Company, as Owner Trustee, One Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, 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.
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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.
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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.
(a) The 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. The 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) The 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 the Purchaser to acquire interests in the Note (a) for
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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 Purchaser understands 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 the Purchaser’s investment intent (or intent to resell only in Rule 144A transactions) as expressed herein.
ARTICLE VII
COVENANTS OF THE ISSUER AND THE DEPOSITOR
(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 Purchaser may from time to time reasonably request;
(c) 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;
(d) 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; and
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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 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 as if it constituted “Confidential Information” (as defined therein).
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 7.06. 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.
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(c) On or prior to any Transfer 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 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 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
(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.
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SECTION 8.05. [Reserved].
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 for the related Payment Date.
ARTICLE IX
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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 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
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
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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 10.06. 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 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.
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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.
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OPTION ONE OWNER TRUST 2003-5 | ||||||
By: | Wilmington Trust Company not in its individual capacity but solely as owner trustee |
By: | /s/ Xxxxx X. Xxxxxx | ||||
Name: | Xxxxx X. Xxxxxx | ||||
Title: | Financial Services Officer | ||||
OPTION ONE LOAN WAREHOUSE CORPORATION |
|||||
By: | /s/ Xxx Xxxxxx | ||||
Name: | Xxx Xxxxxx | ||||
Title: | Vice President | ||||
CITIGROUP GLOBAL MARKETS REALTY CORP. |
|||||
By: | /s/ Xxxxx Xxxxx | ||||
Name: | Xxxxx Xxxxx | ||||
Title: |
Schedule I
Information for Notices
1. if to the Issuer:
Option One
Owner Trust 2003-5
c/o Wilmington Trust Company
as Owner Trustee
One Xxxxxx Square North
1100 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xttention: Corporate Trust Administration
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Option One
Mortgage Corporation
3 Xxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Xttention: Xxxxxxx X’Xxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
2. if to the Depositor:
Option One Loan Warehouse Corporation
3 Xxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Xttention: Xxxxxxx X’Xxxxx
Telecopy number: (000) 000-0000
Telephone number: (000) 000-0000
3. if to the Purchaser:
Citigroup Global Markets Realty Corp.
390 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xttention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
I-1