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Exhibit 10.22
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FOURTH AMENDED AND RESTATED
LOAN PURCHASE AND CONTRIBUTION AGREEMENT
between
OPTION ONE LOAN WAREHOUSE CORPORATION
as Depositor
and
OPTION ONE MORTGAGE
CORPORATION
as Loan Originator
Dated as of September 1, 2005
MORTGAGE-BACKED NOTES
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS; CONSTRUCTION
..................................... 1
Section 1.01 Definitions
............................................... 1
Section 1.02 Construction
.............................................. 2
ARTICLE II SALE OF LOANS; PAYMENT OF
PURCHASE PRICE ..................... 2
Section 2.01 Sale of Loans to Depositor
................................ 2
Section 2.02 Obligations of Loan Originator
............................ 4
Section 2.03 Dispositions; Transfer Obligation
......................... 5
ARTICLE III REPRESENTATIONS AND WARRANTIES;
REMEDIES FOR
BREACH ......................................................
6
Section 3.01 Loan Originator's Representations
and Warranties .......... 6
ARTICLE IV LOAN ORIGINATOR COVENANTS
.................................... 6
Section 4.01 Covenants of the Loan Originator
.......................... 6
ARTICLE V TERMINATION
................................................... 7
Section 5.01 Termination
............................................... 7
ARTICLE VI MISCELLANEOUS PROVISIONS
..................................... 7
Section 6.01 Amendment
................................................. 7
Section 6.02 Governing Law
............................................. 7
Section 6.03 Notices
................................................... 7
Section 6.04 Severability of Provisions
................................ 8
Section 6.05 Counterparts
.............................................. 8
Section 6.06 Further Agreements
........................................ 8
Section 6.07 Intention of the Parties
.................................. 8
Section 6.08 Successors and Assigns; Assignment
of Agreement ........... 9
Section 6.09 Survival
.................................................. 9
Section 6.10 Successors and Assigns
.................................... 9
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EXHIBIT
Exhibit A Form of LPA Assignment
i
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THIRD AMENDED AND RESTATED
LOAN PURCHASE AND CONTRIBUTION AGREEMENT
THIRD AMENDED
AND RESTATED LOAN PURCHASE AND CONTRIBUTION AGREEMENT, dated
as of September 1, 2005 (this "Agreement"),
between OPTION ONE MORTGAGE
CORPORATION, a California corporation (the
"Loan Originator"), and OPTION ONE
LOAN WAREHOUSE CORPORATION, a Delaware
corporation (the "Depositor").
WITNESSETH
WHEREAS, the
Loan Originator owns and from time to time originates and
acquires certain loans (the "Loans")
secured primarily by mortgages, deeds of
trust and security deeds on certain
Mortgaged Properties and the Loan Documents
related thereto;
WHEREAS, the
Loan Originator is the owner of 100% of the capital stock of
the Depositor;
WHEREAS, the
parties hereto desire that on each Transfer Date, the Loan
Originator sell and contribute all its
right, title and interest in and to the
Loans and the related Loan Documents to
Depositor pursuant to the terms of this
Agreement; and
WHEREAS, the
Depositor will sell, transfer, assign and otherwise convey all
of its rights, title and interest in and to
each of the Loans and related Loan
Documents and its related rights under this
Agreement to one of several trusts
(each a "Trust" and collectively, the
"Trusts"), in each case pursuant to each
of the Sale and Servicing Agreements set
forth on Schedule I attached hereto (as
updated from time to time to reflect the
addition of any Trust added as a party
to the Master Disposition Agreement),
entered into by Option One, Depositor,
Wells Fargo and each of the Trusts,
respectively, (collectively, the "Sale and
Servicing Agreements" and each
individually, a "Sale and Servicing Agreement").
WHEREAS, the
parties hereto have entered into the First Amended and
Restated Loan Purchase and Contribution
Agreement, dated as of August 8, 2003
(the "First Amended and Restated Loan
Purchase and Contribution Agreement").
WHEREAS, the
parties hereto have entered into the Second Amended and
Restated Loan Purchase and Contribution
Agreement, dated as of November 14, 2003
(the "Second Amended and Restated Loan
Purchase and Contribution Agreement").
WHEREAS, the
parties hereto have entered into the Third Amended and
Restated Loan Purchase and Contribution
Agreement, dated as of June 1, 2005 (the
"Third Amended and Restated Loan Purchase
and Contribution Agreement").
WHEREAS, the
parties to the Third Amended and Restated Loan Purchase and
Contribution Agreement now seek to amend
the Third Amended and Restated Loan
Purchase and Contribution Agreement in its
entirety as set forth in this Fourth
Amended and Restated Loan Purchase and
Contribution Agreement (this
"Agreement");
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NOW, THEREFORE,
in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.01
Definitions. For purposes of this Agreement: (i) references to
the Trust or the Issuer shall mean the
Trust to which the Depositor sells the
related Loans; (ii) references to the Sale
and Servicing Agreement shall mean
the Sale and Servicing Agreement pursuant
to which the Depositor sells the
related Loans; (iii) references to the
Indenture Trustee shall mean Wells Fargo
Bank, N.A., or its successor, in its
capacity as Indenture Trustee under the
related Sale and Servicing Agreement; (iv)
references to the Noteholders shall
mean the Note Purchaser in connection with
sales to the 2002-3 Trust and the
Initial Noteholder in connection with sales
to the other Trusts listed on
Schedule I hereto and (v) references to the
Master Disposition Agreement shall
mean the Fourth Amended and Restated Master
Disposition Confirmation Agreement,
dated as of June 1, 2005, by and among
Option One, the Depositor, the Delaware
statutory trusts listed on Schedule I
thereto and each of the Lenders listed on
Schedule II thereto, as amended and
supplemented from time to time. All other
capitalized terms used but not defined
herein shall have the meanings assigned
thereto in the related Sale and Servicing
Agreement.
Section 1.02
Construction. For purposes of this Agreement: (i) the singular
includes the plural and the plural includes
the singular; (ii) words importing
any gender include the other genders; (iii)
the words "and" and "or" are used in
the conjunctive or disjunctive as the sense
and circumstances may require, (iv)
references to "writing" include printing,
typing, lithography and other means of
reproducing words in a visible form; (v)
references to agreements and other
contractual instruments include all
subsequent amendments thereto or changes
therein entered into in accordance with
their respective terms and not
prohibited by this Agreement or the Basic
Documents; (vi) references to Persons
include their permitted successors and
assigns; (vii) any form of the word
"include" shall be deemed to be followed by
the words "without limitation";
(viii) the phrase "in and to" shall be
deemed to include "under" and "with
respect to" whenever appropriate; (ix)
unless the context clearly requires
otherwise, the word "finance" shall be
deemed to include "refinance"; (x) the
words "herein", "hereof' and "hereunder"
and other words of similar import refer
to this Agreement as a whole and not to any
particular Article, Section or other
subdivision; and (xi) Article, Section,
Schedule and Exhibit references, unless
otherwise specified, refer to Articles and
Sections of and Schedules and
Exhibits to this Agreement. Unless
otherwise stated in this Agreement, in the
computation of a period of time from a
specified date to a later specified date,
the word "from" means "from and including"
and the words "to" and "until" each
mean "to but excluding."
ARTICLE II
SALE OF LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01
Sale of Loans to Depositor. (a) On the terms and conditions of
this Agreement, on each Transfer Date, the
Loan Originator agrees to offer for
sale, and to sell, a
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portion of each of the Loans (equal to the
Sales Price therefor) to the
Depositor and to contribute to the capital
stock of the Depositor the balance of
each of the Loans and to deliver the
related Loan Documents to or at the
direction of the Depositor. To the extent
the Depositor has or is able to obtain
sufficient funds to pay the Sales Price
thereof, the Depositor agrees to
purchase such Loans offered for sale by the
Loan Originator.
(b) The price paid by the Depositor for the portion of each of
the
Loans sold on each Transfer Date (the
"Sales Price") shall be the sum of the
Collateral Values as of the Transfer Date
with respect to the Loans conveyed on
such date (determined after giving effect
to all payments of principal received
thereon prior to the Transfer Cut-off Date
as determined by the Servicer). The
market value of each of the Loans in excess
of the Sales Price therefor shall be
a contribution to the capital of the
Depositor.
(c) On each Transfer Date, the Loan Originator shall convey to
the
Depositor the Loans and the other property
and rights related thereto described
in the related LPA Assignment, and the
Depositor, only upon the satisfaction of
each of the conditions set forth below on
or prior to such Transfer Date, shall
cause the deposit of cash in the amount of
the Sales Price in the Advance
Account and shall cause the Servicer to,
promptly after such deposit, withdraw
the Sales Price deposited in respect of
applicable Additional Note Principal
Balance from the Advance Account and
distribute such amount to or at the
direction of the Loan Originator:
(i) the Loan Originator shall have delivered to the Issuer, the
Depositor and the Noteholders a duly
executed LPA Assignment with respect to all
of the Loans conveyed on such Transfer
Date, which shall have attached thereto a
Loan Schedule setting forth the appropriate
information with respect to all
Loans conveyed on such Transfer Date and
shall have delivered to the Noteholders
a computer readable transmission of such
Loan Schedule;
(ii) the Loan Originator shall have provided to the Servicer
for
deposit in the related Collection Account
all collections received with respect
to each of the Loans on or after the
applicable Transfer Cut-off Date;
(iii) as of such date, neither the Loan Originator nor the
Depositor shall (A) be insolvent, (B) be
made insolvent by its respective sale
of Loans or (C) have reason to believe that
its insolvency is imminent;
(iv)
the Revolving Period shall not have terminated and shall be
in effect as of such Transfer Date;
(v) except in the case of Wet Funded Loans, the Loan Originator
shall have delivered the Custodial Loan
File to the Custodian in accordance with
the Custodial Agreement and the Noteholders
shall have received a copy of the
Loan Schedule and Exceptions Report and,
where required under the Custodial
Agreement, a copy of the Trust Receipt;
(vi) each of the representations and warranties made by the
Loan
Originator set forth in Exhibit E to each
of the Sale and Servicing Agreements
with respect to the Loans shall be true and
correct as of the related Transfer
Date with the same effect as if then
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made, and the Loan Originator shall have
performed all obligations to be
performed by it under each of the related
Basic Documents on and prior to such
Transfer Date;
(vii) the Loan Originator shall, at its own expense, within one
Business Day of the Transfer Date, indicate
in its computer files that the Loans
identified in the related LPA Assignment
have been sold to the Depositor
pursuant to this Agreement;
(viii) the Loan Originator shall have taken any action
requested
by the Indenture Trustee, the Issuer or the
Noteholders required to maintain the
ownership interest of the Issuer in the
Trust Estate and the first perfected
security interest therein of the Indenture
Trustee;
(ix) the Loan Originator shall have used no selection
procedures
that identified any of the Loans identified
in the related LPA Assignment as
being less desirable or valuable than other
comparable Loans originated or
acquired by the Loan Originator; and such
Loans collectively shall be
representative of the Loan Originator's
portfolio of fixed rate or adjustable
rate Loans, as the case may be;
(x) the Loan Originator shall have provided the Depositor, the
Trust and the Noteholders, no later than
1:00 p.m. Eastern time on the date that
is two (2) Business Days prior to the
issuance of Additional Note Principal
Balance, a Notice of Additional Note
Principal Balance in the form of Exhibit A
to the related Sale and Servicing
Agreement;
(xi) after giving effect to the Additional Note Principal
Balance
purchased on such date, the related Note
Principal Balance will not exceed the
related Maximum Note Principal Balance;
and
(xii) all conditions precedent to the Noteholder's purchase of
Additional Note Principal Balance pursuant
to the related Note Purchase
Agreement shall have been fulfilled as of
such date.
(d) Subject to Section 6.07, the parties hereto intend that each
of
the conveyances contemplated hereby be
sales from the Loan Originator to the
Depositor of all of the Loan Originator's
right, title and interest in and to
the Loans and other property described
above.
Section 2.02
Obligations of Loan Originator.
(a) Within ten days of the Closing Date and on or prior to each
Transfer Date, the Noteholders shall have
received evidence satisfactory to it
of (i) the completion of all recordings,
registrations and filings as may be
necessary or, in the opinion of the
Noteholders, 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 and related property
and the proceeds thereof, (ii) the
completion of all recordings, registrations
and filings as may be necessary or,
in the opinion of the Noteholders,
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 opinion of
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the Noteholders, desirable to perfect or
evidence the grant of a first priority
perfected security interest in the Trust's
ownership interest in the Trust
Estate including, without limitation, the
Loans and the proceeds thereof, in
favor of the Indenture Trustee. The Loan
Originator agrees to file all necessary
continuation statements and any amendments
to the UCC financing statements
required to reflect a change in the name or
corporate structure of the Loan
Originator and to file any additional UCC
financing statements required due to a
change in the legal name, chief executive
office, state of incorporation or
legal form of the Loan Originator as are
necessary to perfect the interest of
the Depositor, the Trust and the Indenture
Trustee in and to the Trust Estate
and to take such other action as may be
necessary or, in the opinion of the
Depositor or the Noteholders, desirable to
perfect or evidence the Depositor's,
the Trust's and Indenture Trustee's
interest in the Loans and Loan Documents
conveyed under the Basic Documents.
(b) In connection with each sale of a Loan hereunder, the Loan
Originator shall deliver to, and deposit
with the Custodian, on behalf of the
Indenture Trustee, as assignee of the
Depositor, the Custodial Loan File with
respect to each Loan conveyed on such
Transfer Date (i) in the case of each
non-Wet Funded Loan, o
