exv10w7



 








Exhibit 10.7




NOTE PURCHASE AGREEMENT




among




OPTION ONE OWNER TRUST 2005-9

as Issuer




and




OPTION ONE LOAN WAREHOUSE CORPORATION

as Depositor




DB STRUCTURED PRODUCTS, INC.,

as Noteholder Agent




and




DB STRUCTURED PRODUCTS, INC.,

GEMINI SECURITIZATION CORP., LLC

ASPEN FUNDING CORP.

and

NEWPORT FUNDING CORP.

as Purchasers




DATED AS OF DECEMBER 30, 2005




OPTION ONE OWNER TRUST 2005-9

MORTGAGE-BACKED NOTES






 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	Section 10.1 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
	 	 	3	 
	 
	 	 	 	 
	ARTICLE III TRANSFER DATES
	 	 	3	 
	Section 3.01 Transfer Dates
	 	 	3	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO EFFECTIVENESS OF COMMITMENT
	 	 	5	 
	Section 4.01 Subject to Conditions Precedent
	 	 	5	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ISSUER AND THE DEPOSITOR
	 	 	7	 
	Section 5.01 Issuer
	 	 	7	 
	Section 5.02 Securities Act
	 	 	9	 
	Section 5.03 No Fee
	 	 	9	 
	Section 5.04 Information
	 	 	10	 
	Section 5.05 The Purchased Notes
	 	 	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	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PURCHASERS
	 	 	10	 
	Section 6.01 Organization
	 	 	10	 
	Section 6.02 Authority, etc.
	 	 	10	 
	Section 6.03 Securities Act
	 	 	11	 
	Section 6.04 Conflicts With Law
	 	 	11	 
	Section 6.05 Conflicts with Agreements, etc.
	 	 	11	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS OF THE ISSUER AND THE DEPOSITOR
	 	 	12	 
	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 Notes
	 	 	13	 






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TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE VIII ADDITIONAL COVENANTS

	 	 	13	 
	Section 8.01 Legal Conditions as to Closing

	 	 	13	 
	Section 8.02 Expenses

	 	 	13	 
	Section 8.03 Mutual Obligations

	 	 	14	 
	Section 8.04 Restrictions on Transfer

	 	 	14	 
	Section 8.05 Reserved

	 	 	14	 
	Section 8.06 Information Provided by the Noteholder Agent

	 	 	14	 
	 
	 	 	 	 
	ARTICLE IX INDEMNIFICATION

	 	 	14	 
	Section 9.01 Indemnification of Purchasers

	 	 	14	 
	Section 9.02 Procedure and Defense

	 	 	14	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS


	 	 	15
	 
	
Section 10.01 Amendments

	 	 	15
	 
	Section 10.02 Notices

	 	 	15	 
	Section 10.03 No Waiver, Remedies

	 	 	15	 
	Section 10.04 Binding Effect; Assignability

	 	 	15	 
	Section 10.05 Provision of Documents and Information

	 	 	16	 
	Section 10.06 Governing Law; Jurisdiction

	 	 	16	 
	Section 10.07 No Proceedings

	 	 	16	 
	Section 10.08 Execution in Counterparts

	 	 	16	 
	Section 10.09 No Recourse – Purchasers and Depositor

	 	 	17	 
	Section 10.10 Survival

	 	 	17	 
	Section 10.11 Waiver of Set-Off

	 	 	17	 
	Section 10.12 Tax Characterization

	 	 	17	 
	Section 10.13 Conflicts

	 	 	18	 
	Section 10.14 Service of Process

	 	 	18	 
	Section 10.15 Limitation of Liability

	 	 	18	 
	 
	 	 	 	 
	Schedule I — Information for Notices
	 	 	 	 






-ii-




 









 








NOTE PURCHASE AGREEMENT




     NOTE PURCHASE AGREEMENT dated as of December 30, 2005 (the “Note Purchase
Agreement”), among OPTION ONE OWNER TRUST 2005-9 (the “Issuer”), OPTION ONE LOAN
WAREHOUSE CORPORATION (the “Depositor”), DB STRUCTURED PRODUCTS, INC. (the “Noteholder
Agent” and “Purchaser”), GEMINI SECURITIZATION CORP., LLC, ASPEN FUNDING CORP. and
NEWPORT FUNDING CORP. (the “Purchasers”).



     The parties hereto agree as follows:



ARTICLE I




DEFINITIONS




     SECTION 1.01 Certain Defined Terms. Capitalized terms used herein without definition
shall have the meanings set forth in the Indenture and the Sale and Servicing Agreement (as defined
below). Additionally, the following terms shall have the following meanings:



     “Closing” shall have the meaning set forth in Section 2.02.



     “Closing Date” shall have the meaning set forth in Section 2.02.



     “Commitment” means the commitment of the Committed Purchaser to purchase Additional
Note Principal Balances up to the Maximum Committed Note Principal Balance pursuant to Section
2.01.



     “Committed Purchaser” means DB Structured Products, Inc. and its permitted successors
and assigns or an Affiliate thereof identified in writing by DB Structured Products, Inc. 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 Gemini Securitization Corp., LLC, Aspen Funding Corp. and/or
Newport Funding Corp., as the case may be.



     “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 Purchasers 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 December 30, 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 Committed Note Principal Balance” has the meaning set forth in the Pricing
Letter.



     “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 December 30, 2005 and any amendments thereto.



     “Purchased Notes” means the Option One Owner Trust 2005-9 Mortgage-Backed Notes issued
by the Issuer pursuant to the Indenture.



     “Purchasers” means the Committed Purchaser and the Conduit Purchasers and their
permitted successors and assigns.



     “Sale and Servicing Agreement” means the Sale and Servicing Agreement dated as of ,
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.



     (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







2









 







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 (2) Business Days in
the case of a Loan that is not a Wet Funded Loan, or at least one (1) 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”). On the identified Transfer Date, the
Committed Purchaser agrees to purchase the Additional Note Principal Balance requested in the
Purchase Request to the extent that the aggregate outstanding Note Principal Balance (after giving
effect to the proposed purchase) is less than the Maximum Committed Note Principal Balance, 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 any Conduit Purchaser
purchases pursuant to Section 2.01(a)(ii).



          (ii) In the event that a Conduit Purchaser elects, in its sole discretion, to
purchase any Additional Note Principal Balance with respect to any Purchase Request hereunder, such
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) Reserved.



         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
Proffitt & Wood, Two World Financial Center, New York, New York 10281 on December 30, 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 Purchasers may, and the Committed Purchaser shall (up to the Maximum
Committed Note Principal Balance), purchase Additional Note Principal Balances (up to the Maximum
Note Principal Balance)







3









 







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 origination, servicing and business practices of the Loan Originator are reasonably
acceptable to such Purchaser;




     (viii) With respect to the first Transfer Date, the Purchasers’ signature
pages to the Master Disposition Confirmation Agreement, together with the revised Schedule I,
Schedule II and Exhibit E thereto, each indicating the addition of the Purchasers as parties
thereto, shall have been delivered to each of the other parties to the Master Disposition
Confirmation Agreement; and




     (ix) 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), (vi) and (viii).



     (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.









4









 








     (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; Financial Covenants. Each of
the representations and warranties of the Issuer, the Depositor, the Servicer and the Loan
Originator made in the Basic Documents shall be true and correct in all material respects as of the
Closing Date (except to the extent they expressly relate to an earlier or later time).



     (c) Officer’s Certificate. The 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







5









 







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.



     (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) 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.








6









 







          (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) Underwriting Guidelines. The Purchasers shall have received a copy of the
current Underwriting Guidelines.



          (r) 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.



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 Basic 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 Basic 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.



7









 





          (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.



          (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



8









 







Trustee in accordance with the terms of the Indenture and delivered to and paid for by the
applicable Purchaser 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 2005-9, 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 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.



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          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 as of
the Closing Date to the Issuer and the Depositor on which the same are relying in entering into
this Note Purchase Agreement.



          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



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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.



          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.



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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:



          (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.



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          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 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



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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 any Hedge
Funding Requirement (if any) 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



14









 







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 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.



15









 





          (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.



          (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.



          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



16









 







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 limited liability company 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 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.



17









 





          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 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
2005-9, 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.



[Signature Page Follows]





18










 







          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 2005-9
	 
	 	 	 	 
	 

	 	By:
	 	Wilmington Trust Company, not in its individual
	 

	 	 	 	capacity but solely as owner trustee






	 	 	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	Joann A. Rozell
	 

	 	Title:
	 	Assistant Vice President
	 
	 	 	 	 
	 	 	OPTION ONE LOAN WAREHOUSE CORPORATION
	 
	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	Charles R. Fulton
	 

	 	Title:
	 	Assistant Secretary
	 
	 	 	 	 
	 	 	DB STRUCTURED PRODUCTS, INC.,
	 	 	as Noteholder Agent and Committed Purchaser
	 
	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	Glenn Minkoff
	 

	 	Title:
	 	Director
	 
	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	John McCarthy
	 

	 	Title:
	 	Authorized Signatory
	 
	 	 	 	 
	 	 	GEMINI SECURITIZATION CORP., LLC,
	 	 	as Conduit Purchaser
	 
	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	R. Douglas Donaldson
	 

	 	Title:
	 	Treasurer
	 
	 	 	 	 
	 	 	ASPEN FUNDING CORP., as Conduit Purchaser
	 
	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	Doris J. Hearn
	 

	 	Title:
	 	Vice President
	 
	 	 	 	 
	 	 	NEWPORT FUNDING CORP., as Conduit Purchaser
	 
	 	 	 	 
	 

	 	By:
	 	           /s/
	 

	 	 	 	 
	 

	 	Name:
	 	Doris J. Hearn
	 

	 	Title:
	 	Vice President






Note Purchase Agreement




 









 





Schedule I

Information for Notices




if to the Issuer:



Option One Owner Trust 2005-9

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




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




if to the Purchasers:



60 Wall Street

New York, NY 10005

Attention: Glenn Minkoff

Telecopy number: (212) 250-5160

Telephone number: (212) 250-3406




if to the Noteholder Agent:



DB Structured Products, Inc.

60 Wall Street

New York, NY 10005

Attention: Glenn Minkoff

Telecopy number: (212) 250-5160

Telephone number: (212) 250-3406




Note Purchase Agreement