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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, WEST VIRGINIA, N.A.
BANK ONE, WISCONSIN
SELLERS
AND
BANC ONE ABS CORPORATION
PURCHASER
DATED AS OF SEPTEMBER 24, 1998
BANC ONE HELOC TRUST 1998-1
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TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS ...................................... 2
ARTICLE II CONVEYANCE OF THE MORTGAGE LOANS ......................... 2
Section 2.01. Conveyance of Mortgage Loans .................... 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 ..................... 6
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 ....................... 11
ARTICLE IV CONDITIONS ............................................... 12
Section 4.01. Conditions to Obligation of the Purchaser ....... 12
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 ......................................... 13
Section 5.03. Mandatory Sale; Grant of Security Interest ...... 13
ARTICLE VI ADDITIONAL AGREEMENTS .................................... 14
Section 6.01. Conflicts With Pooling and Servicing
Agreement ....................................... 14
Section 6.02. Protection of Title to Trust .................... 14
Section 6.03. Other Liens or Interests ........................ 14
Section 6.04. Purchase Events ................................. 14
Section 6.05. Indemnification ................................. 15
Section 6.06. Trust ........................................... 15
ARTICLE VII MISCELLANEOUS PROVISIONS ................................. 15
Section 7.01. Amendment ....................................... 15
Section 7.02. Waivers ......................................... 15
Section 7.03. Costs and Expenses .............................. 16
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 7.04. Survival ........................................ 16
Section 7.05. Confidential Information ........................ 16
Section 7.06. Severability Clause ............................. 16
Section 7.07. Headings and Cross-References ................... 16
Section 7.08. Recordation of Agreement ........................ 16
Section 7.09. Governing Law ................................... 16
Section 7.10. Notices ......................................... 17
Section 7.11. Counterparts .................................... 17
Section 7.12. The Credit Enhancer ............................. 17
EXHIBIT A [RESERVED] ............................................... 1
EXHIBIT B-1 MORTGAGE LOANS TRANSFERRED BY Bank One, N.A. ............. 1
EXHIBIT B-2 MORTGAGE LOANS TRANSFERRED BY Bank One, Arizona, N.A. .... 2
EXHIBIT B-3 MORTGAGE LOANS TRANSFERRED BY Bank One, Colorado, N.A. ... 3
EXHIBIT B-4 MORTGAGE LOANS TRANSFERRED BY Bank One, Illinois, N.A. ... 4
EXHIBIT B-5 MORTGAGE LOANS TRANSFERRED BY Bank One, Indiana, N.A. .... 5
EXHIBIT B-6 MORTGAGE LOANS TRANSFERRED BY Bank One, Kentucky, N.A. ... 6
EXHIBIT B-7 MORTGAGE LOANS TRANSFERRED BY Bank One, Utah, N.A. ....... 7
EXHIBIT B-8 MORTGAGE LOANS TRANSFERRED BY Bank One, West Virginia,
N.A. ..................................................... 8
EXHIBIT B-9 MORTGAGE LOANS TRANSFERRED BY Bank One, Wisconsin ........ 9
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THIS MORTGAGE LOAN PURCHASE AGREEMENT is made as of September 24, 1998,
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 August 31, 1998, 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
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 cash in the amount of $847,875,000
(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, B-8 and B-9,
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 and to the Trustee, as its successor and
assignee hereunder, to secure a debt or other obligation of the Sellers;
however, in the event that, notwithstanding the
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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 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,
certificated securities and uncertificated securities consisting of,
arising from or relating to any of the property described in (A)
through (D) below: (A) each Mortgage Loan, including (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, identified on the Mortgage Loan Schedule as
defined herein, including all Eligible Substitute Mortgage Loans, (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 Trustee or its designee of the Mortgage
Notes, Assignments of Mortgages and such other goods, letters of credit, advices
of credit, instruments, money, documents, chattel paper or certificated
securities 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
(including, without limitation, Sections 9-305, 8-313 or 8-321 thereof) as in
force in the relevant jurisdiction; and (d) 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, financial intermediaries,
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. In connection herewith, 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.
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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
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.
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.
Section 2.04. Delivery of Mortgage Loan Documents
Each Seller shall deliver or cause to be delivered within 90 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 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 1998-1, HELOC Asset-Backed
Certificates, Series 1998-1, without recourse, representation or warranty,
express or implied," and an original Assignment of Mortgage endorsed in blank
prepared in recordable form; 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 the related documents specified above are 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 such documents in such format will not result in
a reduction in the then current rating of the Investor Certificates, without
regard to the Policy, such optical image or other representation may be
delivered to the Trustee or assignee in lieu of the physical documents specified
above.
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.
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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 required documents set forth in
this Section 2.04 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 which is not executed, has not been received, is
unrelated to the Mortgage Loan identified in the Mortgage Loan Schedule, or
determines that such Mortgage File is otherwise defective in any material
respect, the Trustee is required by the Pooling and Servicing Agreement to
promptly 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 review of the Mortgage Files is limited solely to confirming
that the documents listed in Section 2.04 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, 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 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 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
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Loan. It is understood and agreed that the obligation of a 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 such Seller.
Each 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.
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) As to any Eligible Substitute Mortgage Loan or Loans, the Seller
shall 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 Purchaser
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
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.
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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 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 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
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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 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), 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 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
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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 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 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 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 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 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, 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 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
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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 29 days delinquent
(measured on a contractual basis);
(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) 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 Minimum Monthly 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
Minimum Monthly Payment is due;
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(s) Within 30 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
respect to the Mortgage Loans;
(t) 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;
(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,
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;
(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 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
(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 which 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
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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 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 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 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 or
substitution of an Eligible Substitute Mortgage Loan, as the case may be, 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
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 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 applicable Seller shall pay to the Trust the sum of
the amount 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
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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.
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. [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) will 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 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
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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.
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 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
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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 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 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 any 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.
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 shall assign its
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.
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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.
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
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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.
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.
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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: Daniel A. Long, Jr.
Title: Vice President
SELLERS
Bank One, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Arizona, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Colorado, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Illinois, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
[Signature Page to Mortgage Loan Purchase Agreement]
21
Bank One, Indiana, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Kentucky, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Utah, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, West Virginia, N.A.
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
Bank One, Wisconsin
By:
------------------------------------------
Name: Daniel A. Long, Jr.
Title: Assistant Vice President -
Funds Management
[Signature Page to Mortgage Loan Purchase Agreement]
22
EXHIBIT A
[RESERVED]
A-1
23
EXHIBIT B-1
MORTGAGE LOANS TRANSFERRED BY
Bank One, N.A.
B-1
24
EXHIBIT B-2
MORTGAGE LOANS TRANSFERRED BY
Bank One, Arizona, N.A.
B-2
25
EXHIBIT B-3
MORTGAGE LOANS TRANSFERRED BY
Bank One, Colorado, N.A.
B-3
26
EXHIBIT B-4
MORTGAGE LOANS TRANSFERRED BY
Bank One, Illinois, N.A.
B-4
27
EXHIBIT B-5
MORTGAGE LOANS TRANSFERRED BY
Bank One, Indiana, N.A.
B-5
28
EXHIBIT B-6
MORTGAGE LOANS TRANSFERRED BY
Bank One, Kentucky, N.A.
B-6
29
EXHIBIT B-7
MORTGAGE LOANS TRANSFERRED BY
Bank One, Utah, N.A.
B-7
30
EXHIBIT B-8
MORTGAGE LOANS TRANSFERRED BY
Bank One, West Virginia, N.A.
B-8
31
EXHIBIT B-9
MORTGAGE LOANS TRANSFERRED BY
Bank One, Wisconsin
B-9
32
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 August
31, 1998, 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
September 24, 1998 (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., Bank One, West
Virginia, 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:
B-10