1
EXHIBIT 10.1
MORTGAGE LOAN PURCHASE AGREEMENT
AMONG
[--------------------------]
[--------------------------]
[--------------------------]
SELLERS
AND
BANC ONE ABS CORPORATION
PURCHASER
DATED AS OF , 199
--------- --- --
BANC ONE HELOC TRUST 199 -
-- --
2
THIS MORTGAGE LOAN PURCHASE AGREEMENT is made as of _________
___, 199__, by and among THE SELLERS LISTED ON THE SIGNATURE PAGE HERETO (the
"Sellers"), and BANC ONE ABS CORPORATION (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 _________ __, 199__, among
the Purchaser, as Depositor, Bank One, N.A., as Servicer and
[_________________], as 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
SECTION 2.01 Conveyance of Mortgage Loans
(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 the amount of cash and other
consideration to or to the order of the applicable Seller as set forth on
Exhibit A hereto, 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 Asset Balance (including all
Additional Balances) set forth in the applicable Mortgage Loan Schedules
attached hereto as Exhibit B-1, B-2 and B-3, together with the Mortgage Files
relating thereto and all proceeds thereof [(other than amounts received on and
after the Cut-off Date in respect of interest accrued on such Mortgage Loans
prior to the Cut-off Date)].
3
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 its Mortgage Loans to
the Purchaser.
SECTION 2.03 Books and Records.
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 which shall be clearly marked to reflect the ownership of each
Mortgage Loan by the Purchaser.
SECTION 2.04 Delivery of Mortgage Loan Documents.
Each Seller has delivered or caused to be delivered to the
Purchaser or its designee, in accordance with the instructions of the Purchaser,
each of the documents referred to in Section 2.01 of the Pooling and Servicing
Agreement, as follows:
[(a) the original Mortgage Note;
(b) the original recorded Mortgage or, if, in connection with
any Mortgage Loan, the original recorded Mortgage with evidence of recording
thereon cannot be delivered on or prior to the Closing Date because of a delay
caused by the public recording office where such original Mortgage has been
delivered for recordation or because such original Mortgage has been lost, the
related Seller shall deliver or cause to be delivered, at the direction of the
Purchaser, a true and correct copy of such Mortgage, together with an officer's
Certificate of such Seller stating that such original Mortgage has been
dispatched to the appropriate public recording official or has been lost;
(c) if applicable, the original intervening assignments, if
any ("Intervening Assignments"), with evidence of recording thereon, showing a
complete chain of title to the Mortgage from the originator to the related
Seller or, if any such original Intervening Assignment has not been returned
from the applicable recording office or has been lost, a true and correct copy
thereof, together with an Officer's Certificate of such Seller stating that such
original Intervening Assignment has been dispatched to the appropriate public
recording official for recordation or has been lost;
3
4
(d) for each Mortgage Loan either a title insurance policy or
a title search or guaranty of title with respect to the related Mortgaged
Property to the extent in possession of the related Seller or its Affiliates;
(e) the original of any guaranty executed in connection with
the Mortgage Note;
(f) the original of each assumption, modification,
consolidation or substitution agreement, if any, relating to the Mortgage Loan;
and
(g) any security agreement, chattel mortgage or equivalent
instrument executed in connection with the Mortgage.]
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.
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 items listed in
Section 2.04 (a), (b) and (c) above, in the form attached as Exhibit C hereto,
and declare that it will hold such documents 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, the Custodial
Agreement and this Agreement, 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 after the Closing Date to ascertain
that all required documents set forth in this Section 2.04 have been executed
and received, and that such documents related 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 during the process of reviewing the
Mortgage Files finds any document constituting a part of a Mortgage File which
is not executed, has not been received, is unrelated to the Mortgage Loan
identified in the Mortgage Loan Schedule, or does not conform to the
requirements of Section 2.04 or substantively to the description thereof as set
forth in the Mortgage Loan Schedule, the Trustee is required by the Pooling and
Servicing Agreement to promptly give notice of the same. It
4
5
is understood that the scope of the Trustee's review of the Mortgage Files is
limited solely to confirming that the documents listed in Section 2.04 (other
than those described in Section 2.04(f)) 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 a
material defect in a document constituting part of a Mortgage File of which such
Seller is so notified by the Trustee or the Credit Enhancer. If, however, within
90 days after notice to it respecting such defect, the applicable Seller has not
caused to be remedied the defect 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 (i) a defect in any document constituting a
part of its Mortgage File or (ii) an Assignment of Mortgage to the Trustee not
having been recorded as required by Section 2.04, 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 Asset Balance of such Mortgage Loan shall be deducted from the Pool
Balance; provided, however, that interest accrued on the Asset 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 Asset 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 Seller, then
within five Business Days after the Business Day of such retransfer the Seller
shall either (i) substitute an Eligible Substitute Mortgage Loan or (ii) deposit
into the Collection Account an amount (the "Transfer Deposit Amount") in
immediately available funds equal to the Transfer Deficiency or a combination of
both (i) and (ii) above. Such reduction or substitution and the actual payment
of any Transfer Deposit Amount, if any, shall be deemed to be payment in full
for such Mortgage Loan. It is understood and agreed that the obligation of the
Seller to accept a transfer of a Defective Mortgage Loan and to either convey an
Eligible Substitute Mortgage Loan or to make a deposit of any related Transfer
Deposit Amount into the Collection Account shall constitute the sole remedy
respecting such defect available to Certificateholders, the Trustee and the
Credit Enhancer against the Seller.
The Seller, promptly following the transfer of a Defective
Mortgage Loan from 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.
5
6
Notwithstanding any other provision of this Section 2.05(b), a
retransfer of a Defective Mortgage Loan to the 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 either the Seller 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) As to any Eligible Substitute Mortgage Loan or Loans, the
Seller shall deliver at the direction of the Purchaser (or, if a Delivery Event
has occurred, deliver to the Trustee) with respect to such Eligible Substitute
Mortgage Loan or Loans such documents and agreements as are required to be held
by the Trustee in accordance with Section 2.04. For any Collection Period during
which the Seller substitutes one or more Eligible Substitute Mortgage Loans, the
Transfer Deposit Amount (as determined by the Servicer pursuant to the Pooling
and Servicing Agreement) shall be deposited by the Seller in the Collection
Account at the time of substitution. Any amounts received in respect of the
Eligible Substitute Mortgage Loan or Loans during the Collection Period in which
the circumstances giving rise to such substitution occur shall not be a part of
the Trust Fund and shall not be deposited by the Seller in the Collection
Account. All amounts received by the Servicer during the Collection Period in
which the circumstances giving rise to such substitution occur in respect of any
Defective Mortgage Loan so removed by the Trust Fund shall be deposited by the
Servicer in the Collection Account. Upon such substitution, the Eligible
Substitute Mortgage Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Eligible Substitute Mortgage Loan or Loans, as of the date of
substitution, the covenants, representations and warranties set forth in Section
3.02. The procedures applied by the Seller in selecting each Eligible Substitute
Mortgage Loan shall not be materially adverse to the interests of the Trustee,
the Certificateholders and the Credit Enhancer.
SECTION 2.06 Acceptance by the Purchasers.
The Purchaser acknowledges the assignment to it of the
Mortgage Loans being transferred hereby by the related Sellers and the delivery
of the Mortgage Files to it or upon its order and, concurrently with such
delivery, has executed, authenticated and delivered to or upon the order of the
related Sellers, in exchange for such Mortgage Loans and the related Mortgage
Files, cash and other consideration as set forth in Section 2.01.
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
6
7
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 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 make this Agreement valid, binding and enforceable upon 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 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 con templated by this Agreement and the other documents on the part
of such Seller and the
7
8
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 which, 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 which
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;
(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 second mortgage origination
and servicing business.
8
9
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,
as of the Cut-Off Date:
(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 Asset Balance), all monies due or to
become due with respect thereto, and all proceeds of such Cut-Off Date Asset
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(a) of this Agreement
as being conveyed to the Purchaser by such Seller, and (upon payment for the
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(a)
of this Agreement relating to the Additional Balances.
(b) As of the Closing Date with respect to the Mortgage Loans
and 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 Asset Balance has not been
assigned or pledged, and such Seller is the sole owner and holder of such
Cut-Off Date Asset 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, under all
governmental and regulatory bodies having jurisdiction over the ownership of the
applicable Mortgage Loan, to sell, assign or transfer the same pursuant to this
Agreement;
(d) As of the Closing Date with respect to the Mortgage Loans
and 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;
9
10
(e) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, the related Mortgage is a valid and subsisting first, second or
more junior lien, as set forth on the Mortgage Loan Schedule with respect to
each related Mortgage Loan, on the property therein described, and as of the
applicable Cut-off Date the related Mortgaged Property is free and clear of all
encumbrances and liens having priority over the first, second or more junior
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 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 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 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 the applicable Transfer Date with
respect to any Eligible Substitute Mortgage Loan, there are no mechanics' or
similar liens or claims which have been filed for work, labor or material
affecting the related Mortgaged Property which are, or may be, liens prior or
equal to the lien of the related Mortgage, except liens which are fully insured
against by the title insurance policy;
(j) No Minimum Monthly Payment is more than [89] days
delinquent (measured on a contractual basis); and with respect to the Mortgage
Loans no more than _____% (by Cut-Off Date Pool Balance) were [30-59] days
delinquent (measured on contractual basis) and no more than ____% (by Cut-Off
Date Pool Balance) were [60-89] days delinquent (measured on a contractual
basis);
10
11
(k) As of the Closing Date with respect to the Mortgage Loans
and the applicable Transfer Date with respect to any Eligible Substitute
Mortgage Loan, for each Mortgage Loan, the related Mortgage File 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 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 a Mortgage Loan and to which no title
insurance policy or binder was issued;
(n) As of the Closing Date with respect to the Mortgage Loans
and 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) No more than ____% of the Mortgage Loans, by aggregate
principal balance, are secured by Mortgaged Properties located in one United
States postal zip code;
(p) The Combined Loan-to-Value Ratio for each Mortgage Loan
was not in excess of 100%;
(q) 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;
(r) Such Seller has not transferred the Mortgage Loans to the
Trust with any intent to hinder, delay or defraud any of its creditors;
(s) The Minimum Monthly Payment with respect to any Mortgage
Loan is not less than the interest accrued at the applicable Loan Rate on the
daily Asset Balance during the interest period relating to the date on which
such Minimum Monthly Payment is due;
(t) Within 90 days of the Closing Date with respect to the
Mortgage Loans and, to the extent not already included in such filing with
respect to the Mortgage Loans, the applicable Transfer Date with respect to any
Eligible Substitute Mortgage Loan, such Seller will file UCC-1 financing
statements with
11
12
respect to the Mortgage Loans;
(u) As of the Closing Date with respect to the Mortgage Loans
and 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;
(v) As of the Closing Date with respect to the Mortgage Loans
and 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 any
party other than the Servicer;
(w) 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 C;
(x) The weighted average remaining term to maturity of the
Mortgage Loans on a contractual basis for the Mortgage Loans is approximately
___ months and no Mortgage Loan will mature according to its terms later
than____ _____. Over the term of each Mortgage Loan, the Loan Rate may not
exceed the related Loan Rate Cap, if any. The Loan Rate Caps range between
_____% and __% per annum. The Margins range between ___% and _____%. The Loan
Rates on such Mortgage Loans range between ____% and _____% per annum and the
weighted average Loan Rate is approximately ____% per annum;
(y) As of the Closing Date with respect to the Mortgage Loans
and 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;
(z) No more than ____% (by Cut-Off Date Pool Balance) of the
Mortgage Loans are secured by real property improved by individual condominium
units, planned development units, townhouses or two-to-four family residences
erected thereon, and at least _____% (by Cut-Off Date Pool Balance) of the
Mortgage Loans are secured by real property with a detached one-family residence
erected thereon;
(aa) The Credit Limits on the Mortgage Loans range between
$______ and $_______ with an average Credit Limit of approximately $________. No
Mortgage Loan had a principal balance in excess of approximately $__________ and
the average principal balance of the Mortgage Loans is equal to approximately
$__________; and
(bb) Approximately ________%, _______% and ______% of the
Mortgage Loans, by aggregate principal balance as of the Cut-
12
13
Off Date for the Mortgage Loans, are first, second or more junior liens,
respectively.
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. Upon discovery by a Seller, the Purchaser, the
Servicer or a Responsible Officer of the Trustee of a breach of any of such
representations and warranties which 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 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
transfer of such Mortgage Loan from the Trust or (b) substitute an Eligible
Substitute Mortgage Loan 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 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. Upon accepting such transfer and making
any required deposit into the Collection Account or substitution of an Eligible
Substitute Mortgage Loan, as the case may be, the 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 transfer of Mortgage
Loans under that Section.
It is understood and agreed that the obligations of any Seller
to accept a transfer of a Mortgage Loan as to which a breach has occurred and is
continuing and to make any required deposit in the Collection Account or to
substitute an Eligible Substitute Mortgage Loan, as the case may be, shall
constitute
13
14
the sole remedy against such Seller respecting such breach available to Investor
Certificateholders, the Trustee on behalf of Investor Certificateholders and the
Credit Enhancer. Notwithstanding the foregoing, with regard 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 Seller shall pay to the Trust the sum of the amount of the related Asset
Balances, plus unpaid accrued interest on each such Asset 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, in the form attached to
the Underwriting Agreement and 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 each Seller 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;
(iv) [A certificate or other evidence of merger or
change of name, signed or stamped by the applicable regulatory
authority, if any of the Mortgage Loans were acquired by the
applicable Seller by merger or acquired
14
15
or originated by the applicable Seller while conducting
business under a name other than its present name.]
(c) Other Documents. At the Closing, Sellers 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.
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 at 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 Third Party Servicers.
As of the Closing Date, the Sellers have represented to the
Purchaser that the Mortgage Loans are serviced by the Servicer or the Sellers
and are not subject to servicing agreements with third parties. It is understood
and agreed between the Sellers and the Purchaser that the Mortgage Loans which
are the subject of this Agreement are to be delivered free and clear of any
servicing agreements with third party servicers. Each Seller, without
reimbursement from the Purchaser, shall pay any fees or penalties required by
any third party servicer for releasing the Mortgage Loans from any such
servicing agreement and shall arrange for the orderly transfer of such servicing
from any such third party servicer to the Purchasers.]
SECTION 5.02 Enforceability; Merger or Consolidation of the
Sellers.
(a) Each Seller will keep in full effect its respective
existence, rights and franchises as a [national bank], and will 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
15
16
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 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, and each such Seller
agrees that it holds each Mortgage Loan in custody for the Purchaser subject to
the Purchaser's (i) right to reject any Mortgage Loan under the terms of this
Agreement and (ii) obligation to deliver cash and other consideration as set
forth in Section 2.01 for the Mortgage Loans. 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.
ARTICLE VI
ADDITIONAL AGREEMENTS
The Sellers agree with the Purchaser as follows:
SECTION 6.01 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 6.02 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
16
17
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 6.03 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 6.04 Purchase Events.
The Sellers acknowledge that the Purchaser have assigned all
of their right, title and interest in, to and under this Agreement, including
the Purchaser's right to cause the Sellers to purchase 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, the 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 the extent specified in Section 2.04 of the
Pooling and Servicing Agreement, and without further notice from the Purchaser
hereunder, to purchase an Mortgage Loan from the Trustee. It is understood and
agreed that the obligation of any Seller to purchase 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 6.05 Indemnification.
The Sellers shall indemnify the Purchaser for any liability as
a result of the failure of an 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.
17
18
SECTION 6.06 Trust.
The Sellers acknowledge that the Purchaser shall, pursuant to
the Pooling and Servicing Agreement, transfer the Mortgage Loans to the Trustee
(for the benefit of the Certificateholders), and the Purchaser assign their
rights hereunder to the Trustee (for the benefit of the Certificateholders) as
set forth in the Pooling and Servicing Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01 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 7.02 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 7.03 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 7.04 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.
18
19
SECTION 7.05 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 (i) hereunder, (ii) under the Mortgage
Loans or (iii) as required by law.
SECTION 7.06 Severability Clause.
Any part, provision, representation or warranty of this
Agreement which is prohibited or which 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 which 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 7.07 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 7.08 Recordation of Agreement.
To the extent permitted by applicable law, the 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 7.09 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.
19
20
SECTION 7.10 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.
SECTION 7.11 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 7.12 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.
20
21
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:_______________________________
Name:
Title:
SELLERS
[_______________________________]
By:_______________________________
Name:
Title:
[_______________________________]
By:_______________________________
Name:
Title:
[_______________________________]
By:_______________________________
Name:
Title:
22
EXHIBIT A
AMOUNTS TRANSFERRED BY PURCHASER
TO SELLERS
BANC ONE ABS CORPORATION
HAS TRANSFERRED THE FOLLOWING AMOUNTS:
a) $____________ to [_________________________________]
b) $____________ to [_________________________________]
c) $____________ to [_________________________________]
d) $____________ to [_________________________________]
A-1
23
EXHIBIT B-1
MORTGAGE LOANS TRANSFERRED BY
[_______________________________]
B-1-1
24
EXHIBIT B-2
MORTGAGE LOANS TRANSFERRED BY
[_______________________________]
B-2-1
25
EXHIBIT B-3
MORTGAGE LOANS TRANSFERRED BY
[_______________________________]
B-3-1
26
TABLE OF CONTENTS
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01 ........................................................................................1
ARTICLE II
CONVEYANCE OF THE MORTGAGE LOANS
SECTION 2.01 Conveyance of Mortgage Loans............................................................1
SECTION 2.02 Possession of Mortgage Files............................................................2
SECTION 2.03 Books and Records.......................................................................2
SECTION 2.04 Delivery of Mortgage Loan Documents.....................................................2
SECTION 2.05 Acceptance by Purchaser of the Mortgage Loans;
Certain Substitutions; Certification
by the Trustee..........................................................................3
SECTION 2.06 Acceptance by the Purchasers............................................................5
SECTION 2.07 The Closing.............................................................................5
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Representations and Warranties of the Sellers...........................................6
SECTION 3.02 Representations and Warranties as to the
Mortgage Loans..........................................................................8
SECTION 3.03 Purchase and Substitution..............................................................12
ARTICLE IV
CONDITIONS
SECTION 4.01 Conditions to Obligation of the Purchaser..............................................13
SECTION 4.02 Conditions To Obligation of each Seller................................................14
ARTICLE V
THE SELLERS
SECTION 5.01 Third Party Servicers..................................................................14
SECTION 5.02 Enforceability; Merger or Consolidation of the
Sellers................................................................................15
SECTION 5.03 Mandatory Sale; Grant of Security Interest.............................................15
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01 Conflicts With Pooling and Servicing Agreement.........................................16
SECTION 6.02 Protection of Title to Trust...........................................................16
SECTION 6.03 Other Liens or Interests...............................................................16
SECTION 6.04 Purchase Events........................................................................17
SECTION 6.05 Indemnification........................................................................17
SECTION 6.06 Trust..................................................................................17
-i-
27
TABLE OF CONTENTS
(CONTINUED)
ARTICLE VII
MISCELLANEOUS PROVISIONS PAGE
SECTION 7.01 Amendment..............................................................................18
SECTION 7.02 Waivers................................................................................18
SECTION 7.03 Costs and Expenses.....................................................................18
SECTION 7.04 Survival...............................................................................18
SECTION 7.05 Confidential Information...............................................................18
SECTION 7.06 Severability Clause....................................................................19
SECTION 7.07 Headings and Cross-References..........................................................19
SECTION 7.08 Recordation of Agreement...............................................................19
SECTION 7.09 Governing Law..........................................................................19
SECTION 7.10 Notices................................................................................19
SECTION 7.11 Counterparts...........................................................................20
SECTION 7.12 The Credit Enhancer....................................................................20
-ii-