Exhibit 10.1
EXECUTION COPY
================================================================================
MORTGAGE LOAN PURCHASE AGREEMENT
AMONG
BANK ONE, N.A.
BANK ONE, ARIZONA, N.A.
BANK ONE, COLORADO, N.A.
BANK ONE, ILLINOIS, N.A.
BANK ONE, INDIANA, N.A.
BANK ONE, KENTUCKY, N.A.
BANK ONE, UTAH, N.A.
BANK ONE, WISCONSIN
SELLERS
AND
BANC ONE ABS CORPORATION
PURCHASER
DATED AS OF JUNE 23, 1999
BANC ONE HELOC TRUST 1999-1
================================================================================
ARTICLE I CERTAIN DEFINITIONS..............................................2
ARTICLE II CONVEYANCE OF THE MORTGAGE LOANS; SECURITY INTEREST..............2
Section 2.01. Conveyance of Mortgage Loans; Security Interest........2
Section 2.02. Possession of Mortgage Files...........................4
Section 2.03. Books and Records......................................4
Section 2.04. Delivery of Mortgage Loan Documents....................4
Section 2.05. Acceptance by Purchaser of the Mortgage Loans;
Certain Substitutions; Certification by the
Trustee................................................5
Section 2.06. Acceptance by the Purchaser............................7
Section 2.07. The Closing............................................7
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................7
Section 3.01. Representations and Warranties of the Sellers..........7
Section 3.02. Representations and Warranties as to the
Mortgage Loans.........................................8
Section 3.03. Purchase and Substitution.............................12
ARTICLE IV CONDITIONS......................................................13
Section 4.01. Conditions to Obligation of the Purchaser.............13
Section 4.02. Conditions To Obligation of each Seller...............13
ARTICLE V THE SELLERS.....................................................13
Section 5.01. [Reserved]............................................13
Section 5.02. Enforceability; Merger or Consolidation
of the Sellers........................................14
Section 5.03. Mandatory Sale; Grant of Security Interest............14
ARTICLE VI ADDITIONAL AGREEMENTS...........................................14
Section 6.01. Conflicts With Pooling and Servicing Agreement........14
Section 6.02. Protection of Title to Trust..........................15
Section 6.03. Other Liens or Interests..............................15
Section 6.04. Purchase Events.......................................15
Section 6.05. Indemnification.......................................15
Section 6.06. Trust.................................................16
ARTICLE VII MISCELLANEOUS PROVISIONS........................................16
Section 7.01. Amendment.............................................16
Section 7.02. Waivers...............................................16
Section 7.03. Costs and Expenses....................................16
Section 7.04. Survival..............................................16
Section 7.05. Confidential Information..............................16
Section 7.06. Severability Clause...................................16
Section 7.07. Headings and Cross-References.........................17
Section 7.08. Recordation of Agreement..............................17
Section 7.09. Governing Law.........................................17
Section 7.10. Notices...............................................17
Section 7.11. Counterparts..........................................17
Section 7.12. The Credit Enhancer...................................17
EXHIBIT A [RESERVED].....................................................A-1
EXHIBIT B-1 MORTGAGE LOANS TRANSFERRED BY Bank One, N.A....................B-1
EXHIBIT B-2 MORTGAGE LOANS TRANSFERRED BY Bank One, Arizona, N.A...........B-2
EXHIBIT B-3 MORTGAGE LOANS TRANSFERRED BY Bank One, Colorado, N.A..........B-3
EXHIBIT B-4 MORTGAGE LOANS TRANSFERRED BY Bank One, Illinois, N.A..........B-4
EXHIBIT B-5 MORTGAGE LOANS TRANSFERRED BY Bank One, Indiana, N.A...........B-5
EXHIBIT B-6 MORTGAGE LOANS TRANSFERRED BY Bank One, Kentucky, N.A..........B-6
EXHIBIT B-7 MORTGAGE LOANS TRANSFERRED BY Bank One, Utah, N.A..............B-7
EXHIBIT B-8 MORTGAGE LOANS TRANSFERRED BY Bank One, Wisconsin..............B-8
EXHIBIT C ACKNOWLEDGEMENT OF TRUSTEE AS TO RECEIPT OF MORTGAGE LOANS.....C-1
THIS MORTGAGE LOAN PURCHASE AGREEMENT is made as of June 23, 1999, by and
among THE SELLERS LISTED ON THE SIGNATURE PAGE HERETO (the "Sellers") and BANC
ONE ABS CORPORATION, its successors and assigns (the "Purchaser").
WHEREAS, the Sellers and the Purchaser wish to set forth the terms pursuant
to which the Mortgage Loans are to be sold by the Sellers to the Purchaser and
purchased by the Purchaser from the Sellers;
NOW, THEREFORE, in consideration of the foregoing, the other good and
valuable consideration and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.01. Certain capitalized terms used in this Agreement are defined
in and shall have the respective meanings assigned them in Article I to the
Pooling and Servicing Agreement, dated as of May 31, 1999, among the Purchaser,
as Depositor, Bank One, N.A., as Servicer and The Bank of New York, as Trustee
(the "Trustee") (the "Pooling and Servicing Agreement"). All references herein
to "the Agreement" or "this Agreement" are to this Mortgage Loan Purchase
Agreement, and all references herein to Articles, Sections and subsections are
to Articles, Sections or subsections of this Mortgage Loan Purchase Agreement
unless otherwise specified.
ARTICLE II
CONVEYANCE OF THE MORTGAGE LOANS; SECURITY INTEREST
Section 2.01. Conveyance of Mortgage Loans; Security Interest
(a) Immediately prior to consummation on the Closing Date of the
transactions contemplated by the Pooling and Servicing Agreement, in
consideration of the Purchaser's delivery of cash in the amount of $498,720,000
(which is net of underwriting commission), the Transferor Interest and other
consideration, each Seller does hereby transfer, assign, set over and convey to
the Purchaser without recourse, all of the right, title and interest of such
Seller in and to each Mortgage Loan, including its Principal Balance (including
all Additional Balances) set forth in the applicable Mortgage Loan Schedules
attached hereto as Exhibits B-1, B-2, B-3, B-4, B-5, B-6, B-7 and B-8, together
with the Mortgage Files relating thereto and all proceeds thereof received after
the Cut-Off Date.
(b) It is the express intent of the parties hereto that the conveyance of
the Mortgage Loans by the Sellers to the Purchaser as provided in this Agreement
be, and be construed as, a sale of all of the Sellers' right, title and interest
in the Mortgage Loans by the Sellers to the Purchaser and to the Trustee, as its
successor and assignee hereunder. Further, it is not the intention of the
parties that such conveyance be deemed a pledge of the Mortgage Loans by the
Sellers to the Purchaser to secure a debt or other obligation of the Sellers;
however, in the event that, notwithstanding the intent of the parties, the
Mortgage Loans are held to be property of the Sellers, or if for any reason this
Agreement is held or deemed to create a security interest
1
in the Mortgage Loans, then, (a) this Agreement also shall be deemed to be, and
hereby is, a security agreement within the meaning of Articles 8 and 9 of the
Uniform Commercial Code in effect in the applicable state; (b) the conveyance
provided for in this Agreement shall be deemed to be, and hereby is, a grant by
the Sellers to the Purchaser and to the Trustee as its successor and assignee
hereunder of a security interest in and to all of the Sellers' right, title, and
interest, whether now owned or hereafter acquired, in and to:
(I) All accounts, contract rights, general intangibles, chattel paper,
instruments, documents, money, deposit accounts, certificates of deposit,
goods, letters of credit, advices of credit, investment property and
financial assets consisting of, arising from or relating to any of the
property described in (A) through (D) below: (A) each Mortgage Loan
identified on the Mortgage Loan Schedule, including all Eligible Substitute
Mortgage Loans, together with (a) the Mortgage Note and the related
Mortgage and (b) its Principal Balance and all Additional Balances and all
collections in respect thereof received on or after the Cut-Off Date, (B)
property that secured a Mortgage Loan that is acquired by foreclosure or
deed in lieu of foreclosure; (C) the Purchase Agreement, (D) any hazard
insurance policies in respect of the Mortgage Loans; and (E) the amounts on
deposit in the Spread Account; and
(II) All proceeds of the collateral described in (I).
(c) The possession by the Purchaser and the Trustee or its designee as the
Purchaser's successor and assignee hereunder of the Mortgage Notes, Assignments
of Mortgages and such other goods, letters of credit, advices of credit,
instruments, money, documents, or chattel paper shall be deemed to be
"possession by the secured party," or possession by a purchaser or a person
designated by him or her, for purposes of perfecting the security interest
pursuant to the Uniform Commercial Code as in force in the relevant
jurisdiction; and notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, bailees or agents (as applicable) of the Trustee or its
designee for the purpose of perfecting such security interest under applicable
law. Subject to the provisions of the Pooling and Servicing Agreement permitting
the Servicer to commingle amounts collected with respect to the Mortgage Loans
with other general collections of the Servicer, the Sellers and the Trustee at
the direction of the Purchaser to the extent consistent with this Agreement,
shall take such actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Mortgage Loans and the proceeds
thereof, such security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be maintained as such
throughout the term of the Agreement; provided, however, that any security
interest in favor of the Purchaser shall be and hereby is expressly subordinate
and subject to the security interest granted in favor of the Trustee for the
benefit of the Investor Certificateholders. In connection herewith, the
Purchaser and the Trustee shall have all of the rights and remedies of a secured
party and creditor under the Uniform Commercial Code as in force in the relevant
jurisdiction.
(d) The Sellers acknowledge and agree that the Purchaser absolutely has
transferred, conveyed and assigned to the Trustee for the benefit of the
Investor Certificateholders its rights under this Agreement and the Mortgage
Loans. To the extent that any transfer of the Mortgage Loans or other property
by any of the Sellers to the Purchaser
2
pursuant to this Agreement is determined to be other than an absolute assignment
of the Mortgage Loans and other property described in this Agreement and the
Mortgage Loan Schedule, then the Sellers hereby grant directly to the Trustee,
for the benefit of the holders of the Investor Certificates, as security for the
Sellers' obligations under this Agreement (which obligations have been
absolutely assigned to the Trustee for the benefit of the Investor
Certificateholders), a security interest consisting of all of the Sellers'
right, title and interest, in, to and under the following: (1) All accounts,
contract rights, general intangibles, chattel paper, instruments, documents,
money, deposit accounts, certificates of deposit, goods, letters of credit,
advices of credit, investment property and financial assets consisting of,
arising from or relating to any of the property described in (A) through (D)
below: (A) each Mortgage Loan identified on the Mortgage Loan Schedule,
including all Eligible Substitute Mortgage Loans, together with (a) the Mortgage
Note and the related Mortgage and (b) its Principal Balance and all Additional
Balances and all collections in respect thereof received on or after the Cut-Off
Date, (B) property that secured a Mortgage Loan that is acquired by foreclosure
or deed in lieu of foreclosure; (C) the Purchase Agreement, (D) any hazard
insurance policies in respect of the Mortgage Loans; and (E) the amounts on
deposit in the Spread Account and (2) all proceeds of the collateral described
in (1).
Section 2.02. Possession of Mortgage Files
(a) Upon the delivery to each Seller of the consideration set forth in
Section 2.01, the ownership of each Seller's Mortgage Notes, related Mortgages
and the contents of the related Mortgage Files are vested in the Purchaser.
(b) Pursuant to Section 2.04, each Seller has delivered or caused to be
delivered each Mortgage File with respect to the Mortgage Loans transferred by
it to the Purchaser.
Section 2.03. Books and Records
(a) The transfer of each Mortgage Loan to the Purchaser shall be reflected
on the related Seller's balance sheets and other financial statements as a sale
of assets by such Seller. Each Seller shall be responsible for maintaining, and
shall maintain, a complete set of books and records for each Mortgage Loan that
shall be clearly marked to reflect the ownership of each Mortgage Loan by the
Purchaser.
(b) Each Seller hereby confirms to the Trustee that it has caused the
portions of the Electronic Ledgers relating to the Mortgage Loans to be clearly
and unambiguously marked, and has made the appropriate entries in its general
accounting records, to indicate that such Mortgage Loans have been transferred
to or at the direction of the Purchaser.
(c) In connection with the security interest granted pursuant to Section
2.01(d), the Sellers shall, at their own expense, cause their books and records
to be marked to show that a security interest in such assets has been granted to
the Trustee pursuant to this Agreement.
3
Section 2.04. Delivery of Mortgage Loan Documents
Each Seller shall deliver or cause to be delivered within 120 days of the
Closing Date to the Purchaser or its designee, in accordance with the
instructions of the Purchaser and pursuant to Section 2.01(b) of the Pooling and
Servicing Agreement, each original Mortgage Note, endorsed at the direction of
the Purchaser by the applicable Seller, on its face or by allonge attached
thereto, without recourse, in blank or to the order of the Trustee in the
following form: "Pay to the order of The Bank of New York, as trustee for the
registered holders of Banc One HELOC Trust 1999-1, HELOC Asset-Backed
Certificates, Series 1999-1, without recourse, representation or warranty,
express or implied," and an original Assignment of Mortgage endorsed in blank
prepared in recordable form (together, the "Related Documents"); provided,
however, that as to any Mortgage Loan, if (a) as evidenced by an Opinion of
Counsel delivered to and in form and substance satisfactory to the Trustee and
the Credit Enhancer, (x) an optical image or other representation of each
Related Document is enforceable in the relevant jurisdictions to the same extent
as the original of such document and (y) such optical image or other
representation does not impair the ability of an owner of such Mortgage Loan to
transfer its interest in such Mortgage Loan, and (b) the retention of the
Related Documents in such format will not result in a reduction in the then
current rating of the Investor Certificates, without regard to the Policy, then
such optical image or other representation may be delivered to the Trustee (or
any Custodian on behalf of the Trustee) or assignee in lieu of physical copies
of the Related Documents.
Each Seller agrees not to notify the obligors on the Mortgage Loans of the
transfer of the Mortgage Loans to the Purchaser, unless required by the terms of
the Mortgage Loans or applicable law.
Section 2.05. Acceptance by Purchaser of the Mortgage Loans; Certain
Substitutions; Certification by the Trustee
(a) The Purchaser agrees to execute and deliver on the Closing Date for
each Mortgage Loan an acknowledgment of receipt of the Mortgage Loans, in the
form attached as Exhibit C hereto, and declares that it will hold the documents
delivered to it pursuant to Section 2.04 and any amendments, replacements or
supplements thereto, as well as any other assets transferred pursuant to the
terms hereof. Pursuant to the Pooling and Servicing Agreement, any Custodial
Agreement and this Agreement, the Trustee (or any Custodian on behalf of the
Trustee) will, for the benefit of the Purchaser and the Credit Enhancer, review
(or cause to be reviewed) each of the documents set forth in Section 2.04 within
90 days following delivery to ascertain that all Related Documents have been
executed and received and that such documents relate to the Mortgage Loans
identified on the Mortgage Loan Schedule, and in so doing the Trustee may rely
on the purported due execution and genuineness of any signature thereon.
(b) If the Trustee (or any Custodian on behalf of the Trustee) during the
process of reviewing the Mortgage Files finds any document constituting a part
of a Mortgage File not to have been executed or received or to be unrelated to
the Mortgage Loan identified in the Mortgage Loan Schedule, or, if in the course
of its review, the Trustee (or any Custodian on behalf of the Trustee)
determines that such Mortgage File is otherwise defective in any material
respect, the Trustee is required by the Pooling and Servicing Agreement promptly
upon the conclusion of such review to give notice of the same to the Purchaser,
the applicable Seller and the Credit Enhancer to correct or cure such defect. It
is understood that the scope of the Trustee's
4
review of the Mortgage Files is limited solely to confirming that the Related
Documents have been executed and received and relate to the Mortgage Files
identified in the Mortgage Loan Schedule. The applicable Seller agrees to use
its reasonable efforts to cause to be remedied any material defect in a document
constituting part of a Mortgage File of which such Seller is so notified by the
Purchaser, the Trustee or the Credit Enhancer. If within 90 days after notice to
it respecting such defect the applicable Seller has not caused the defect to be
remedied, or if at any time any loss is suffered by the Trustee on behalf of the
Certificateholders or the Credit Enhancer in respect of any Mortgage Loan as a
result of a defect in any document constituting a part of its Mortgage File,
then on the next succeeding Business Day upon the deposit to the Collection
Account of the Transfer Deposit Amount, if any, and upon satisfaction of the
applicable conditions described herein, all right, title and interest of the
Trust in and to such Mortgage Loan shall be deemed to be retransferred,
reassigned and otherwise reconveyed, without recourse, representation or
warranty, to the Seller on such Business Day, and the Principal Balance of such
Mortgage Loan shall be deducted from the Pool Balance; provided, however, that
interest accrued on the Principal Balance of such Mortgage Loan to the end of
the related Collection Period shall be the property of the Trust. If the Trustee
determines pursuant to the Pooling and Servicing Agreement that the reduction of
such Principal Balance from the Pool Balance in accordance with the preceding
sentence would cause the Transferor Principal Balance to be less than the
Minimum Transferor Interest (a "Transfer Deficiency") and delivers written
notice of such deficiency to the applicable Seller, then within five Business
Days after the Business Day of such retransfer the applicable Seller shall
substitute one or more Eligible Substitute Mortgage Loans and/or deposit
immediately available funds into the Collection Account in an aggregate amount
determined by the Servicer pursuant to the Pooling and Servicing Agreement (the
"Transfer Deposit Amount") such that the sum of the outstanding Principal
Balances of any Eligible Substitute Mortgage Loans and the Transfer Deposit
Amount is equal to the Transfer Deficiency. Such reduction or substitution and
the actual payment of any Transfer Deposit Amount shall be deemed to be payment
in full for such Defective Mortgage Loan. It is understood and agreed that the
obligation of a Seller to accept a transfer of a Defective Mortgage Loan and to
convey one or more Eligible Substitute Mortgage Loans and/or to make a deposit
of any related Transfer Deposit Amount into the Collection Account shall
constitute the sole remedy with respect to such defect available to
Certificateholders, the Trustee and the Credit Enhancer against such Seller.
Each Seller, promptly following the retransfer of a Defective Mortgage Loan
or the transfer of an Eligible Substitute Mortgage Loan pursuant to this Section
2.05(b), shall appropriately mark its Electronic Ledger and make appropriate
entries in its general account records to reflect such retransfer.
Notwithstanding any other provision of this Section 2.05(b), a retransfer
of a Defective Mortgage Loan to a Seller pursuant to this Section 2.05(b) that
would cause the Transferor Principal Balance to be less than the Minimum
Transferor Interest shall not occur if such Seller either fails to convey an
Eligible Substitute Mortgage Loan or to deposit into the Collection Account any
related Transfer Deposit Amount required by this Section 2.05(b) with respect to
the transfer of such Defective Mortgage Loan.
(c) The related Seller shall deliver to the Trustee such documents and
agreements with respect to any Eligible Substitute Mortgage Loan or Loans as are
required to be held by the Trustee in accordance with Section 2.04. For any
Collection Period during which a
5
Seller substitutes one or more Eligible Substitute Mortgage Loans, any Transfer
Deposit Amount shall be deposited by such Seller in the Collection Account at
the time of substitution. Any amounts received in respect of an Eligible
Substitute Mortgage Loan or Loans during the Collection Period in which the
circumstances giving rise to such substitution occur shall not be an asset of
the Trust and shall not be deposited by the Seller in the Collection Account.
All amounts received by the Servicer in respect of any Defective Mortgage Loan
retransferred to a Seller during the Collection Period in which the
circumstances giving rise to such substitution occur shall be deposited by the
Servicer in the Collection Account. Upon any such substitution, the applicable
Eligible Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the applicable Seller shall be deemed to have
made the covenants, representations and warranties set forth in Section 3.02
with respect to such Eligible Substitute Mortgage Loan or Loans as of the date
of substitution. The procedures applied by a Seller in selecting an Eligible
Substitute Mortgage Loan shall not be materially adverse to the interests of the
Trustee, the Certificateholders or the Credit Enhancer.
Section 2.06. Acceptance by the Purchaser
The Purchaser acknowledges the assignment to it of the Mortgage Loans being
transferred hereby by the Sellers and the delivery of the Mortgage Files to it
or upon its order and has delivered cash and other consideration as set forth in
Section 2.01 to or upon the order of the related Sellers in exchange for such
Mortgage Loans and the related Mortgage Files concurrently with such delivery.
Section 2.07. The Closing
The conveyance of the Mortgage Loans shall take place at the offices of
Orrick, Herrington & Sutcliffe LLP, 666 Fifth Avenue, New York, New York 10103,
on the Closing Date, immediately prior to the closing of the transactions
contemplated by the Pooling and Servicing Agreement and the Underwriting
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Sellers
Each Seller hereby represents and warrants to the Purchaser as of the Closing
Date:
(a) Such Seller is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all licenses
necessary to carry on its business as now being conducted and is licensed,
qualified and in good standing in each State in which a Mortgaged Property is
located if the laws of such state require licensing or qualification in order to
conduct business of the type conducted by such Seller and to perform its
obligations as a Seller hereunder; such Seller has the power and authority to
execute and deliver this Agreement and to perform in accordance herewith; the
execution, delivery and performance of this Agreement (including all instruments
of transfer to be delivered pursuant to this Agreement) by such Seller and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary action; this Agreement is the valid, binding and
enforceable obligation of such Seller; and all requisite action has been taken
by such Seller to
6
make this Agreement valid, binding and enforceable against such Seller in
accordance with its terms, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors rights generally or the application of equitable principles in any
proceeding, whether at law or in equity;
(b) All actions, approvals, consents, waivers, exemptions, variances,
franchises, orders, permits, authorizations, rights and licenses required to be
taken, given or obtained, as the case may be, by or from any Federal, State or
other governmental authority or agency (other than any such actions, approvals,
etc. under any state securities laws, real estate syndication or "Blue Sky"
statutes, as to which such Seller makes no such representation or warranty),
that are necessary in connection with the origination of the Mortgage Loans and
the execution and delivery by such Seller of this Agreement, have been duly
taken, given or obtained, as the case may be, are in full force and effect, are
not subject to any pending proceedings or appeals (administrative, judicial or
otherwise) and either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be obtained
or appeal therefrom taken, and are adequate to authorize the consummation of the
transactions contemplated by this Agreement and the other documents on the part
of such Seller and the performance by such Seller of its obligations as a Seller
under this Agreement;
(c) The consummation of the transactions contemplated by this Agreement
will not result in the breach of any terms or provisions of the bylaws of such
Seller or result in the breach of any term or provision of, or conflict with or
constitute a default under or result in the acceleration of any obligation
under, any material agreement, indenture or loan or credit agreement or other
material instrument to which such Seller or its property is subject, or result
in the violation of any law, rule, regulation, order, judgment or decree to
which such Seller or its property is subject;
(d) There is no action, suit, proceeding or investigation pending or, to
the best of such Seller's knowledge, threatened against such Seller that, either
in any one instance or in the aggregate, may result in any material adverse
change in the business, operations, financial condition, properties or assets of
such Seller or in any material impairment of the right or ability of such Seller
to carry on its business substantially as now conducted, or in any material
liability on the part of such Seller or that would draw into question the
validity of this Agreement or the Mortgage Loans or of any action taken or to be
taken in connection with the obligations of such Seller contemplated herein, or
which would be likely to impair materially the ability of the Seller to perform
under the terms of this Agreement;
(e) Such Seller is not in default with respect to any order or decree of
any court or any order, regulation or demand of any federal, state, municipal or
governmental agency, which default might have consequences that would materially
and adversely affect the condition (financial or other) or operations of such
Seller or its properties or might have consequences that would materially and
adversely affect its performance hereunder;
(f) The transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by such Seller pursuant to this Agreement are not subject to the bulk
transfer laws or any similar statutory provisions in effect in any applicable
jurisdiction;
7
(g) Such Seller is solvent and such Seller will not be rendered insolvent
as a result of the transfer of the Mortgage Loans to the Purchaser; and
(h) The origination and collection practices used by such Seller with
respect to each Mortgage Note and Mortgage have been in all material respects
legal, proper, prudent and customary in the home equity line of credit loan
origination and servicing business.
Section 3.02. Representations and Warranties as to the Mortgage Loans
Each Seller hereby represents and warrants to the Purchaser, with respect
to each Mortgage Loan sold by it pursuant to this Agreement, that:
(a) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
this Agreement constitutes a valid transfer and assignment to the Purchaser of
all right, title and interest of such Seller in and to each related Mortgage
Loan (including its Cut-Off Date Principal Balance and any Additional Balances),
all monies due or to become due with respect thereto, and all proceeds of such
Cut-Off Date Principal Balances with respect to the Mortgage Loans and such
funds as are from time to time deposited in the Collection Account (excluding
any investment earnings thereon) and all other property specified in Section
2.01 of this Agreement as being conveyed to the Purchaser by such Seller, and
(upon payment for any Additional Balances) will constitute a valid transfer and
assignment to the Trustee of all right, title and interest of the Seller in and
to the Additional Balances, all monies due or to become due with respect
thereto, and all proceeds of such Additional Balances and all other property
specified in Section 2.01 of this Agreement relating to the Additional Balances.
(b) As of the Closing Date with respect to the Mortgage Loans, as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan
and as of the date any Additional Balance is created, the information set forth
in the Mortgage Loan Schedule for such Mortgage Loans is true and correct in all
material respects;
(c) The applicable Cut-Off Date Principal Balance has not been assigned or
pledged, and such Seller is the sole owner and holder of such Cut-Off Date
Principal Balance free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges or security interests of any
nature, and has full right and authority to sell, assign or transfer the same
pursuant to this Agreement;
(d) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
the related Mortgage Note and the Mortgage with respect to each Mortgage Loan
have not been assigned or pledged, and such Seller is the sole owner and holder
of the Mortgage Loan free and clear of any and all liens, claims, encumbrances,
participation interests, equities, pledges, charges or security interests of any
nature, and has full right and authority, under all governmental and regulatory
bodies having jurisdiction over the ownership of the applicable Mortgage Loans,
to sell, assign or transfer the same pursuant to this Agreement;
(e) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
the related Mortgage is a valid and subsisting first or second lien (as set
forth on the Mortgage Loan
8
Schedule), on the Mortgaged Property described in the Mortgage Loan Schedule,
and as of the applicable Cut-off Date such related Mortgaged Property is free
and clear of all encumbrances and liens having priority over the first or second
lien (as applicable) of such Mortgage except for liens for (i) real estate taxes
and special assessments not yet delinquent; (ii) income taxes, (iii) any first
or similar mortgage loan secured by such Mortgaged Property and specified on the
Mortgage Loan Schedule; (iv) covenants, conditions and restrictions, rights of
way, easements and other matters of public record as of the date of recording
that are acceptable to mortgage lending institutions generally; and (v) other
matters to which like properties are commonly subject that do not materially
interfere with the benefits of the security intended to be provided by such
Mortgage;
(f) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
there is no valid offset, defense or counterclaim of any obligor under any
Credit Line Agreement or Mortgage that has been asserted or threatened;
(g) To the best knowledge of such Seller, as of the Closing Date with
respect to the Mortgage Loans and as of the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, there are no delinquent
recordings or other tax or fee or assessment liens against any related Mortgaged
Property;
(h) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
there is no proceeding pending, nor has the Seller received notice of such
proceeding being threatened, for the total or partial condemnation of the
related Mortgaged Property and, to the best knowledge of the Seller, such
property is free of material damage;
(i) To the best knowledge of such Seller, as of the Closing Date with
respect to the Mortgage Loans and as of the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, there are no mechanics' or
similar liens or claims that have been filed for work, labor or material
affecting the related Mortgaged Property that are, or may be, liens prior or
equal to the lien of the related Mortgage, except liens that are fully insured
against by the title insurance policy;
(j) No Regular Payment is more than 29 days delinquent (measured on a
contractual basis);
(k) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
the related Mortgage File for each Mortgage Loan contains each of the documents
and instruments specified to be included therein;
(l) To the best knowledge of such Seller, the related Mortgage at
origination complied in all material respects with applicable State and Federal
laws, including without limitation usury, truth in lending, real estate
settlement procedures, consumer credit protection, equal credit opportunity or
disclosure laws applicable to the Mortgage Loan;
(m) To the best knowledge of such Seller, either a lender's title insurance
policy or binder was issued on the date of origination of the Mortgage Loan, and
each such
9
policy is valid and remains in full force and effect, or a title search or
guaranty of title customary in the relevant jurisdiction was obtained with
respect to the Mortgage Loan and no title insurance policy or binder was issued;
(n) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
none of the Mortgaged Properties is a mobile home or a manufactured housing unit
that is not considered or classified as part of the real estate under the laws
of the jurisdiction in which it is located;
(o) The Combined Loan-to-Value Ratio for each Mortgage Loan was not in
excess of 100%;
(p) No selection procedure reasonably believed by such Seller to be adverse
to the interests of the Certificateholders or the Credit Enhancer was utilized
in selecting the Mortgage Loans;
(q) Such Seller has not transferred the Mortgage Loans to the Trust with
any intent to hinder, delay or defraud any of its creditors;
(r) The Regular Payment with respect to any Mortgage Loan is not less than
the interest accrued at the applicable Loan Rate on the daily Principal Balance
during the interest period relating to the date on which such Regular Payment is
due;
(s) Within 30 days of the Closing Date with respect to the Mortgage Loans
and within 30 days of the applicable Transfer Date with respect to any Eligible
Substitute Mortgage Loan, to the extent not already included in such filing with
respect to the Mortgage Loans, such Seller will file UCC-1 financing statements
with respect to the Mortgage Loans;
(t) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
each Credit Line Agreement and each Mortgage Loan is an enforceable obligation
of the related Mortgagor, except as the enforceability thereof may be limited by
the bankruptcy, insolvency or similar laws affecting creditors' rights
generally;
(u) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
such Seller has not received a notice of default of any senior mortgage loan
related to a Mortgaged Property that has not been cured by a party other than
the Servicer;
(v) The definition of the applicable index in each Credit Line Agreement
relating to each Mortgage Loan does not differ materially from the Index as set
forth on Exhibit B;
(w) As of the Closing Date with respect to the Mortgage Loans and as of the
applicable Transfer Date with respect to any Eligible Substitute Mortgage Loan,
each Mortgaged Property consists of a single parcel of real property with a
one-to-four unit single family residence erected thereon, an individual
condominium unit, planned unit development unit or townhouse; and
10
(x) At the time of origination of each Mortgage Loan, the Seller caused
hazard insurance to be obtained for such Mortgage Loan, naming the Servicer or
the related subservicer as loss payee thereunder and providing extended coverage
in an amount that is at least equal to the lesser of (i) the replacement value
of the improvements securing such Mortgage Loan from time to time or (ii) the
combined principal balance owing on such Mortgage Loan and any mortgage loan
senior to such Mortgage Loan from time to time.
With respect to the representations and warranties set forth in this
Section 3.02 that are made to the best knowledge of a Seller, if it is
discovered by such Seller, the Purchaser, the Servicer or a Responsible Officer
of the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value of the
related Mortgage Loan, then notwithstanding such Seller's lack of knowledge with
respect to the substance of such representation and warranty being inaccurate at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty and subject such
Seller to the obligations set forth in Section 3.03.
Section 3.03. Purchase and Substitution
It is understood and agreed that the representations and warranties set
forth in Sections 3.01 and 3.02 shall survive delivery of the Mortgage Loans to
the Purchaser. It is understood and agreed that the Purchaser is making certain
representations and warranties with respect to the Mortgage Loans in the Pooling
and Servicing Agreement and that the Sellers have agreed to cure any breach of
such representations and warranties or to repurchase or substitute for any
affected Mortgage Loan as set forth herein. Upon discovery by a Seller, the
Purchaser, the Servicer or a Responsible Officer of the Trustee of (i) any
breach of the representation and warranty set forth in Section 2.04(b)(vi) of
the Pooling and Servicing Agreement or (ii) a breach of any of the
representations and warranties in Sections 3.01 and 3.02 or the representations
and warranties of the Purchaser with respect to the Mortgage Loans in Section
2.04 of the Pooling and Servicing Agreement that materially and adversely
affects the interests of the Trust or the Investor Certificateholders or the
Credit Enhancer in the related Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties and the Credit Enhancer.
Within 90 days of the earlier of its discovery or its receipt of notice of any
breach of a representation or warranty, the applicable Seller shall cure such
breach in all material respects or shall, not later than the Business Day next
preceding the Distribution Date in the month following the Collection Period in
which any such cure period expired (or such later date that is acceptable to the
Trustee and the Credit Enhancer as evidenced by their written consents), either
(a) accept a retransfer of such Mortgage Loan from the Trust or (b) substitute
one or more Eligible Substitute Mortgage Loans in the same manner and subject to
the same conditions as set forth in Section 2.05; provided, however, that the
cure for any breach of a representation and warranty of the Purchaser in Section
2.04 of the Pooling and Servicing Agreement relating to the characteristics of
the Mortgage Loans in the aggregate shall be a repurchase of or substitution for
only the Mortgage Loans necessary to cause such characteristics to be in
compliance with the related representation and warranty; and provided, further,
that in the event of such a breach relating to the characteristics of the
Mortgage Loans in the aggregate, each Seller shall contribute proportionally to
the repurchase or substitution of such Mortgage Loans, allocated according to
the proportion of Mortgage Loans contributed by each such Seller to the Trust.
Upon accepting such transfer and making any required deposit into the Collection
Account and/or substitution of
11
one or more Eligible Substitute Mortgage Loans, each Seller shall be entitled to
receive an instrument of assignment or transfer from the Trustee to the same
extent as set forth in Section 2.05 with respect to the retransfer of Mortgage
Loans under that Section.
It is understood and agreed that the obligations of any Seller to accept a
retransfer of a Mortgage Loan as to which a breach has occurred and is
continuing and to make any required deposit in the Collection Account and/or to
substitute one or more Eligible Substitute Mortgage Loans, shall constitute the
sole remedy against such Seller with respect to such breach available to
Investor Certificateholders, the Trustee on behalf of Investor
Certificateholders and the Credit Enhancer. Notwithstanding the foregoing, with
respect to any breach of the representation and warranty set forth in Section
3.02(d), the sale and assignment of the affected Mortgage Loans to the Trust
shall be deemed void and the applicable Seller shall pay to the Trust an amount
equal to the aggregate of the related Principal Balances, plus unpaid accrued
interest on each such Principal Balance at the applicable Loan Rate to the date
of payment.
ARTICLE IV
CONDITIONS
Section 4.01. Conditions to Obligation of the Purchaser The obligation of
the Purchaser to purchase the Mortgage Loans is subject to the satisfaction of
the following conditions:
(a) Representations and Warranties True. The representations and warranties
of the Sellers hereunder shall be true and correct on the Closing Date with the
same effect as if then made, and the Sellers shall have performed all
obligations to be performed by them hereunder on or prior to the Closing Date.
(b) Documents to be Delivered By the Sellers at the Closing.
(i) The Mortgage Loan Schedule specifying the Mortgage Loans to be
transferred hereunder, one copy to be attached to each counterpart of the
Pooling and Servicing Agreement as the Mortgage Loan Schedule thereto;
(ii) An Officer's Certificate with respect to each Seller, dated as of the
Closing Date, with the resolutions of such Seller authorizing the transactions
contemplated by this Agreement attached thereto, together with copies of the
charter, by-laws and a Certificate of Good Standing dated as of recent date
(acceptable to the Purchaser and its counsel) of such Seller;
(iii) An Opinion of Counsel to the Sellers dated as of the Closing Date in
the form attached to the Underwriting Agreement and any Opinion of Counsel
required to be delivered to any Rating Agency or the Credit Enhancer;
(c) Other Documents. On the Closing Date, each Seller shall provide such
other documents as the Purchaser may reasonably request.
(d) Other Transactions. The transactions contemplated by the Pooling and
Servicing Agreement shall be consummated on the Closing Date.
12
Section 4.02. Conditions To Obligation of each Seller
The obligation of the Sellers to transfer the Mortgage Loans to the
Purchaser is subject to the satisfaction of the condition that on the Closing
Date the Purchaser shall deliver to each Seller the consideration set forth on
Exhibit A hereto, as provided in Section 2.01.
ARTICLE V
THE SELLERS
Section 5.01. [Reserved]
Section 5.02. Enforceability; Merger or Consolidation of the Sellers
(a) Each Seller (other than Bank One, Wisconsin, which is a Wisconsin State
bank) shall keep in full effect its respective existence, rights and franchises
as a national bank (or State bank, in the case of Bank One, Wisconsin), and
shall obtain and preserve its qualification to do business as a foreign
corporation in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of this Agreement, the
Pooling and Servicing Agreement and any of the Mortgage Loans and to perform its
duties under such agreements.
(b) Any Person into which any Seller may be merged or consolidated, or any
corporation resulting from any merger, conversion or consolidation to which any
Seller shall be a party, or any Person succeeding to the business of any Seller,
shall be the successor of any Seller hereunder without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
Section 5.03. Mandatory Sale; Grant of Security Interest
The sale on the Closing Date by each Seller of its Mortgage Loans is
mandatory, it being specifically understood and agreed that each Mortgage Loan
is unique and identifiable on the date hereof and that an award of money damages
would be insufficient to compensate the Purchaser for the loss and damages
incurred by the Purchaser (including damages to prospective purchasers of the
Certificates) in the event of such Seller's failure to deliver the Mortgage
Loans on or before the Closing Date. Each Seller hereby grants to the Purchaser
and to the Trustee as its successor and assignee a lien on and continuing
security interest in each Mortgage Loan and each document and instrument
evidencing such Mortgage Loan to secure the performance by such Seller of its
obligations hereunder. All rights and remedies of the Purchaser under this
Agreement are distinct from, and cumulative with, any other rights or remedies
under this Agreement or afforded by law or equity, and all such rights and
remedies may be exercised concurrently, independently or successively.
13
ADDITIONAL AGREEMENTS
The Sellers agree with the Purchaser as follows:
Section 5.04. Conflicts With Pooling and Servicing Agreement
To the extent that any provision of Sections 6.02 through 6.04 of this
Agreement conflicts with any provision of the Pooling and Servicing Agreement,
the Pooling and Servicing Agreement shall govern.
Section 5.05. Protection of Title to Trust
(a) The Sellers shall from time to time execute and deliver all such
supplements and amendments hereto and all such financing statements,
continuation statements, instruments of further assurance and other instruments,
and shall take such other action necessary or advisable to:
(i) maintain or preserve the transfer evidenced by this Agreement or
carry out more effectively the purposes hereof; or
(ii) preserve and defend the Purchaser's title to the Mortgage Loans
and the rights of the Purchaser in such assets against the claims of all
persons and parties, and the Sellers hereby designate the Purchaser its
agent and attorney-in-fact to execute any financing statement, continuation
statement or other instrument required by the Purchaser pursuant to this
Section 6.02.
Section 5.06. Other Liens or Interests
Except for the conveyances hereunder and pursuant to this Agreement, the
Sellers shall not sell, pledge, assign or transfer the Mortgage Loans to any
other Person, or grant, create, incur, assume or suffer to exist any Lien on any
interest therein, and the Sellers shall defend the right, title and interest of
the Purchaser in, to and under such Mortgage Loans against all claims of third
parties claiming through or under the Sellers.
Section 5.07. Purchase Events
The Sellers acknowledge that the Purchaser has assigned all of its right,
title and interest in, to and under this Agreement (including the Purchaser's
right to cause the Sellers to repurchase the Mortgage Loans from the Purchaser
under certain circumstances) to the Trust pursuant to Section 2.01 of the
Pooling and Servicing Agreement and has assigned to the Trustee its right, title
and interest in this Agreement; provided, however, that neither the Trustee nor
the Trust assumes the obligation under any Credit Line Agreement that provides
for the funding of future advances to the Mortgagor thereunder, and neither the
Trust nor the Trustee shall be obligated or permitted to fund any such future
advances. The Sellers hereby covenant and agree with the Purchaser for the
benefit of the Purchaser, the Trustee, the Certificateholders and the Credit
Enhancer that the occurrence of a breach of any of the Sellers' representations
and warranties contained in Section 3.02 hereof shall constitute events
obligating the Seller to repurchase the applicable Mortgage Loan from the
Trustee, to the extent specified in Section 2.04 of the Pooling and Servicing
Agreement and without further notice from the Purchaser
14
hereunder. It is understood and agreed that the obligation of any Seller to
repurchase any Mortgage Loan as to which a breach has occurred and is continuing
shall, if such obligation is fulfilled, constitute the sole remedy against such
Seller for such breach available to the Trustee, the Certificateholders or the
Credit Enhancer.
Section 5.08. Indemnification
The Sellers shall indemnify the Purchaser for any liability as a result of
the failure of a Mortgage Loan to be originated in compliance with all
requirements of law. This indemnity obligation shall be in addition to any
obligation that the Sellers may otherwise have.
Section 5.09. Trust
The Sellers acknowledge that the Purchaser will transfer the Mortgage Loans
to the Trustee (for the benefit of the Certificateholders) pursuant to the
Pooling and Servicing Agreement, and the Purchaser shall assign its rights
hereunder to the Trustee (for the benefit of the Certificateholders) as set
forth in the Pooling and Servicing Agreement.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.01. Amendment
This Agreement may be amended from time to time (upon prior notice to each
of the Rating Agencies and with the prior written consent of the Credit
Enhancer) by a written amendment duly executed and delivered by the Sellers and
the Purchaser; provided, however, that any such amendment that materially
adversely affects the rights of the Certificateholders under the Pooling and
Servicing Agreement must be consented to by a majority of the
Certificateholders.
Section 6.02. Waivers
No failure or delay on the part of the Purchaser in exercising any power,
right or remedy under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy preclude
any other or further exercise thereof or the exercise of any other power, right
or remedy.
Section 6.03. Costs and Expenses
The Sellers agree to pay all reasonable out-of-pocket costs and expenses of
the Purchaser, including fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in, to and under the Mortgage Loans and the enforcement of any obligation of the
Sellers hereunder.
Section 6.04. Survival
The representations, warranties and covenants of the Seller set forth in
Sections 3.01 and 3.02 and Article V of this Agreement shall remain in full
force and effect and shall survive the closing under Section 2.07 and the
transfers contemplated by Sections 6.04 and 6.06.
15
Section 6.05. Confidential Information
The Purchaser agrees that it shall neither use nor disclose to any person
the names and addresses of the Mortgagors, except in connection with the
enforcement of the Purchaser's rights hereunder, or unenforceable under the
Mortgage Loans or as required by law.
Section 6.06. Severability Clause
Any part, provision, representation or warranty of this Agreement that is
prohibited or unenforceable or is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement that is prohibited or unenforceable
or is held to be void or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction as to any Mortgage Loan
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
Section 6.07. Headings and Cross-References
The various headings in this Agreement are included for convenience only
and shall not affect the meaning or interpretation of any provision of this
Agreement.
Section 6.08. Recordation of Agreement
To the extent permitted by applicable law, this Agreement is subject to
recordation in all appropriate public offices for real property records in all
the counties or other comparable jurisdictions in which any or all of the
properties subject to the Mortgages are situated, and in any other appropriate
public recording office or elsewhere, such recordation to be effected by the
Sellers at the Sellers' expense on direction of the Purchaser accompanied by an
Opinion of Counsel to the effect that such recordation materially and
beneficially affects the interests of the Purchaser.
Section 6.09. Governing Law
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF
LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 6.10. Notices
All demands, notices and communications under this Agreement shall be in
writing, personally delivered or mailed by certified mail with return receipt
requested, and shall be deemed to have been duly given upon receipt at the
appropriate address set forth in the Pooling and Servicing Agreement.
16
Section 6.11. Counterparts
This Agreement may be executed in two or more counterparts and by different
parties on separate counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
Section 6.12. The Credit Enhancer
Any right conferred to the Credit Enhancer hereunder shall be suspended
during any period in which the Credit Enhancer is in default in its payment
obligations under the Policy. At such time as the Certificates are no longer
outstanding under the Pooling and Servicing Agreement and no amounts owed to the
Credit Enhancer with respect to the Certificates remain unpaid, the Credit
Enhancer's rights hereunder shall terminate. The Credit Enhancer is an intended
third-party beneficiary of this Agreement.
17
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first above written.
PURCHASER
Banc One ABS Corporation
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Vice President
SELLERS
Bank One, N.A.
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Arizona, N.A.
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Colorado, N.A.
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Illinois, N.A.
By: /s/ Daniel A. Long
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
[Signature Page to Mortgage Loan Purchase Agreement]
Bank One, Indiana, N.A.
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Kentucky, N.A.
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Utah, N.A.
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Wisconsin
By: /s/ Daniel A. Long, Jr.
---------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
[Signature Page to Mortgage Loan Purchase Agreement]
Accepted and acknowledged for purposes of the grant of security interest set
forth in Section 2.01(d) by:
THE BANK OF NEW YORK,
as Trustee
Date: June 23rd, 1999
By: /s/ Franklin B. Austin
------------------------------------
Name: Franklin B. Austin
Title: Vice President
[Signature Page to Mortgage Loan Purchase Agreement]
EXHIBIT A
[RESERVED]
A-1
EXHIBIT B-1
MORTGAGE LOANS TRANSFERRED BY
Bank One, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-1
EXHIBIT B-2
MORTGAGE LOANS TRANSFERRED BY
Bank One, Arizona, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-2
EXHIBIT B-3
MORTGAGE LOANS TRANSFERRED BY
Bank One, Colorado, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-3
EXHIBIT B-4
MORTGAGE LOANS TRANSFERRED BY
Bank One, Illinois, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-4
EXHIBIT B-5
MORTGAGE LOANS TRANSFERRED BY
Bank One, Indiana, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-5
EXHIBIT B-6
MORTGAGE LOANS TRANSFERRED BY
Bank One, Kentucky, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-6
EXHIBIT B-7
MORTGAGE LOANS TRANSFERRED BY
Bank One, Utah, N.A.
Delivered to Trustee Only
[Deemed Incorporated]
B-7
EXHIBIT B-8
MORTGAGE LOANS TRANSFERRED BY
Bank One, Wisconsin
Delivered to Trustee Only
[Deemed Incorporated]
B-8
EXHIBIT C
ACKNOWLEDGEMENT OF TRUSTEE AS TO RECEIPT OF MORTGAGE LOANS
THE BANK OF NEW YORK, as Trustee (the "Trustee") under the Pooling and
Servicing Agreement (the "Pooling and Servicing Agreement"), dated as of May 31,
1999, among Banc One ABS Corporation, as Depositor (the "Depositor"), Bank One,
N.A. ("Bank One"), as Servicer, and the Trustee, hereby acknowledges receipt of
the Mortgage Loans, and further declares that it will hold the documents
delivered to it pursuant to Section 2.01 of the Pooling and Servicing Agreement
and Section 2.04 of the Mortgage Loan Purchase Agreement, dated as of June 23,
1999 (the "Purchase Agreement"), among Bank One, Bank One, Arizona, N.A., Bank
One, Colorado, N.A., Bank One, Illinois, N.A., Bank One, Indiana, N.A., Bank
One, Kentucky, N.A., Bank One, Utah, N.A. and Bank One, Wisconsin (each, a
"Seller" and, collectively, the "Sellers") and the Depositor, and any
amendments, replacements or supplements thereto, as well as any other assets
transferred pursuant to the terms of the Purchase Agreement.
The Trustee hereby also acknowledges the grant of security interest in the
Mortgage Loans by the Sellers to the Depositor and to the Trustee as its
successor and assignee under the Purchase Agreement.
THE BANK OF NEW YORK
By: __________________________
Name:
Title:
Dated: June 23, 1999
C-1