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Exhibit 4.1
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POOLING AND SERVICING AGREEMENT
Relating to
ADVANTA MORTGAGE LOAN TRUST 2000-2
Among
ADVANTA CONDUIT RECEIVABLES, INC.,
as Sponsor,
ADVANTA MORTGAGE CORP. USA,
as Master Servicer,
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
Dated as of August 1, 2000
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TABLE OF CONTENTS
(Not a Part of this Agreement)
Page
Parties........................................................................1
Recitals.......................................................................1
ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION...............................1
SECTION 1.01 Definitions.................................................1
SECTION 1.02 Use of Words and Phrases...................................29
SECTION 1.03 Captions; Table of Contents................................29
SECTION 1.04 Opinions...................................................29
ARTICLE II ESTABLISHMENT AND ORGANIZATION OF THE TRUST.....................30
SECTION 2.01 Establishment of the Trust.................................30
SECTION 2.02 Office.....................................................30
SECTION 2.03 Purposes and Powers........................................30
SECTION 2.04 Appointment of the Trustee; Declaration of Trust...........30
SECTION 2.05 Expenses of the Trust......................................30
SECTION 2.06 Ownership of the Trust.....................................31
SECTION 2.07 Situs of the Trust.........................................31
SECTION 2.08 Miscellaneous REMIC Provisions.............................31
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPONSOR
AND THE MASTER SERVICER; COVENANT OF SPONSOR TO
CONVEY MORTGAGE LOANS...........................................34
SECTION 3.01 Representations and Warranties of the Sponsor..............34
SECTION 3.02 Representations and Warranties of the Master Servicer......36
SECTION 3.03 Representations and Warranties of the Sponsor with
Respect to the Mortgage Loans.........................38
SECTION 3.04 Covenants of Sponsor to Take Certain Actions with
Respect to the Mortgage Loans in Certain
Situations............................................40
SECTION 3.05 Conveyance of the Mortgage Loans...........................42
SECTION 3.06 Acceptance by Trustee; Certain Substitutions of
Mortgage Loans; Certification by Trustee..............46
SECTION 3.07 Cooperation Procedures.....................................48
ARTICLE IV ISSUANCE AND SALE OF CERTIFICATES...............................48
SECTION 4.01 Issuance of Certificates...................................48
SECTION 4.02 Sale of Certificates.......................................48
ARTICLE V CERTIFICATES AND TRANSFER OF INTERESTS..........................49
SECTION 5.01 Terms......................................................49
SECTION 5.02 Forms......................................................49
SECTION 5.03 Execution, Authentication and Delivery.....................49
SECTION 5.04 Registration and Transfer of Certificates..................50
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SECTION 5.05 Mutilated, Destroyed, Lost or Stolen Certificates..........52
SECTION 5.06 Persons Deemed Owners......................................53
SECTION 5.07 Cancellation...............................................53
SECTION 5.08 Limitation on Transfer of Ownership Rights.................53
SECTION 5.09 Assignment of Rights.......................................54
ARTICLE VI COVENANTS.......................................................54
SECTION 6.01 Distributions..............................................54
SECTION 6.02 Money for Distributions to be Held in Trust; Withholding...54
SECTION 6.03 Protection of Trust Estate.................................55
SECTION 6.04 Performance of Obligations.................................56
SECTION 6.05 Negative Covenants.........................................56
SECTION 6.06 No Other Powers............................................57
SECTION 6.07 Limitation of Suits........................................57
SECTION 6.08 Unconditional Rights of Owners to Receive Distributions....58
SECTION 6.09 Rights and Remedies Cumulative.............................58
SECTION 6.10 Delay or Omission Not Waiver...............................58
SECTION 6.11 Control by Owners..........................................58
ARTICLE VII ACCOUNTS, DISBURSEMENTS AND RELEASES............................59
SECTION 7.01 Collection of Money........................................59
SECTION 7.02 Establishment of Accounts..................................59
SECTION 7.03 The Certificate Insurance Policy...........................59
SECTION 7.05 Flow of Funds..............................................61
SECTION 7.06 Investment of Accounts.....................................63
SECTION 7.07 Eligible Investments.......................................64
SECTION 7.08 Reports by Trustee.........................................65
SECTION 7.09 Additional Reports by Trustee..............................68
SECTION 7.10 Supplemental Interest Payment Account and
Supplemental Interest Payments........................69
ARTICLE VIII SERVICING AND ADMINISTRATION OF MORTGAGE LOANS..................70
SECTION 8.01 Master Servicer and Sub-Servicers..........................70
SECTION 8.02 Collection of Certain Mortgage Loan Payments...............72
SECTION 8.03 Sub-Servicing Agreements Between Master Servicer and
Sub-Servicers.........................................73
SECTION 8.04 Successor Sub-Servicers....................................73
SECTION 8.05 Liability of Master Servicer...............................73
SECTION 8.06 No Contractual Relationship Between Sub-Servicer and
Trustee or the Owners.................................73
SECTION 8.07 Assumption or Termination of Sub-Servicing Agreement
by Trustee............................................74
SECTION 8.08 Principal and Interest Account.............................74
SECTION 8.09 Delinquency Advances, Compensating Interest and
Servicing Advances....................................76
SECTION 8.10 Purchase of Mortgage Loans.................................78
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SECTION 8.11 Maintenance of Insurance...................................78
SECTION 8.12 Due-on-Sale Clauses; Assumption and Substitution
Agreements............................................79
SECTION 8.13 Realization Upon Defaulted Mortgage Loans..................80
SECTION 8.14 Trustee to Cooperate; Release of Mortgage Files............81
SECTION 8.15 Servicing Compensation.....................................83
SECTION 8.16 Annual Statement as to Compliance..........................83
SECTION 8.17 Annual Independent Certified Public Accountants' Reports...83
SECTION 8.18 Access to Certain Documentation and Information
Regarding the Mortgage Loans..........................83
SECTION 8.19 Assignment of Agreement....................................83
SECTION 8.20 Removal of Master Servicer; Resignation of Master
Servicer..............................................84
SECTION 8.21 Inspections by the Certificate Insurer and the
Trustee; Errors and Omissions Insurance...............88
SECTION 8.22 Merger, Conversion, Consolidation or Succession to
Business of Master Servicer...........................88
SECTION 8.23 Notices of Material Events.................................89
ARTICLE IX TERMINATION OF TRUST............................................90
SECTION 9.01 Termination of Trust.......................................90
SECTION 9.02 Clean-Up Call Termination..................................90
SECTION 9.03 Termination Upon Loss of REMIC Status......................91
SECTION 9.04 Disposition of Proceeds....................................93
SECTION 9.05 Netting of Amounts.........................................93
ARTICLE X THE TRUSTEE ........................................................93
SECTION 10.01 Certain Duties and Responsibilities........................93
SECTION 10.02 Removal of Trustee for Cause...............................94
SECTION 10.03 Certain Rights of the Trustee..............................96
SECTION 10.04 Not Responsible for Recitals or Issuance of Certificates...97
SECTION 10.05 May Hold Certificates......................................97
SECTION 10.06 Money Held in Trust........................................97
SECTION 10.07 No Lien for Fees...........................................97
SECTION 10.08 Corporate Trustee Required; Eligibility....................97
SECTION 10.09 Resignation and Removal; Appointment of Successor..........98
SECTION 10.10 Acceptance of Appointment by Successor Trustee.............99
SECTION 10.11 Merger, Conversion, Consolidation or Succession to
Business of the Trustee..............................100
SECTION 10.12 Reporting; Withholding....................................100
SECTION 10.13 Liability of the Trustee..................................100
SECTION 10.14 Appointment of Co-Trustee or Separate Trustee.............101
ARTICLE XI MISCELLANEOUS.....................................................102
SECTION 11.01 Compliance Certificates and Opinions......................102
SECTION 11.02 Form of Documents Delivered to the Trustee................102
SECTION 11.03 Acts of Owners............................................103
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SECTION 11.04 Notices, etc., to Trustee.................................104
SECTION 11.05 Notices and Reports to Owners; Waiver of Notices..........104
SECTION 11.06 Rules by Trustee and Sponsor..............................104
SECTION 11.07 Successors and Assigns....................................105
SECTION 11.08 Severability..............................................105
SECTION 11.09 Benefits of Agreement.....................................105
SECTION 11.10 Legal Holidays............................................105
SECTION 11.11 Governing Law.............................................105
SECTION 11.12 Counterparts..............................................105
SECTION 11.13 Usury.....................................................105
SECTION 11.14 Amendment.................................................106
SECTION 11.15 REMIC Status; Taxes.......................................107
SECTION 11.16 Additional Limitation on Action and Imposition of Tax.....109
SECTION 11.17 Appointment of Tax Matters Person.........................110
SECTION 11.18 The Certificate Insurer...................................110
SECTION 11.19 Maintenance of Records....................................110
SECTION 11.20 Notices...................................................110
SCHEDULES AND EXHIBITS
SCHEDULE I -- Schedule of Mortgage Loans
SCHEDULE II -- Summary of Prepayment Penalties
EXHIBIT A -- Forms of Class A Certificates
EXHIBIT B -- Forms of Class B, Class BS, Class R-I, Class R-II and
Supplemental Interest Right Certificates
EXHIBIT C -- Form of Notice of Establishment of Principal and Interest
Account
EXHIBIT D -- Form of Trustee's Acknowledgement of Receipt
EXHIBIT E -- Form of Trustee's Certification
EXHIBIT F -- Form of Delivery Order
EXHIBIT G -- Form of Class R-I and Class R-II Tax Matters Transfer
Certificate
EXHIBIT H -- Power of Attorney
EXHIBIT I -- Form of Monthly Report
EXHIBIT J -- Form of Master Servicer's Trust Receipt
EXHIBIT K -- Form of Lost Note Affidavit
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POOLING AND SERVICING AGREEMENT, relating to ADVANTA MORTGAGE LOAN
TRUST 2000-2, dated as of August 1, 2000, by and among ADVANTA CONDUIT
RECEIVABLES, INC., a Nevada corporation, in its capacity as sponsor of the trust
created pursuant to this Agreement (the "Sponsor"), ADVANTA MORTGAGE CORP. USA,
a Delaware corporation, in its capacity as master servicer (the "Master
Servicer"), and BANKERS TRUST COMPANY OF CALIFORNIA, N.A., a national banking
association, in its capacity as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Sponsor wishes to establish a trust, and to provide
for the allocation and sale of the beneficial interests therein and the
maintenance and distribution of the trust estate;
WHEREAS, the Master Servicer has agreed to service the Mortgage
Loans, which constitute the principal assets of the trust estate;
WHEREAS, all things necessary to make the Certificates (as defined
herein), when executed and authenticated by the Trustee, valid instruments, and
to make this Agreement a valid agreement, in accordance with their and its
terms, have been done;
WHEREAS, Bankers Trust Company of California, N.A. is willing to
serve in the capacity of Trustee hereunder; and
WHEREAS, Ambac Assurance Corporation (the "Certificate Insurer")
is intended to be a third-party beneficiary of this Agreement and is hereby
recognized by the parties hereto to be a third-party beneficiary of this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the Sponsor, the Master Servicer and the Trustee
hereby agree as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
SECTION 1.01 Definitions. For all purposes of this Agreement, the
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
"Accepted Servicing Practices": The Master Servicer's normal
servicing practices in servicing and administering mortgage loans for its own
account, which in general will conform to the mortgage servicing practices of
prudent mortgage lending institutions which service for their own account
mortgage loans of the same type as the Mortgage Loans in the jurisdictions in
which the related Properties are located.
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"Account": Any account established in accordance with Sections
7.02, 7.10 or 8.08 hereof, each of which shall be established at a Designated
Depository Institution.
"Accrual Period": On any Payment Date, (x) with respect to the
Fixed Rate Certificates, the immediately preceding calendar month and (y) with
respect to the Class A-1 Certificates, the period commencing on the immediately
preceding Payment Date (or the Startup Day in the case of the first Payment
Date) to and including the day prior to the current Payment Date. Calculations
of interest on the Fixed Rate Certificates will be made on the basis of a
360-day year consisting of twelve thirty-day months and calculations of interest
on the Class A-1 Certificates will be made on the basis of the actual number of
days elapsed in the related Accrual Period in a year of 360 days.
"Aggregate Certificate Principal Balance": As of any date of
determination thereof, the sum of the outstanding Certificate Principal Balance
of the Class A Certificates.
"Agreement": This Pooling and Servicing Agreement, as it may be
amended from time to time, and including the Exhibits hereto.
"AMHC": Advanta Mortgage Holding Company, a Delaware corporation
and the corporate parent of Advanta Mortgage Corp. USA, and the indirect
corporate parent of Advanta Conduit Receivables, Inc.
"Appraised Value": The appraised value of any Property based upon
the appraisal or other valuation made at the time of the origination of the
related Mortgage Loan, or, in the case of a Mortgage Loan which is a purchase
money mortgage purchased within the immediately preceding twelve month period,
the sales price of the Property at such time of origination, if such sales price
is less than such appraised value.
"Authorized Officer": (A) With respect to any Person, any person
who is authorized to act for such Person in matters relating to this Agreement,
and whose action is binding upon such Person and (B) with respect to the
Trustee, the Sponsor and the Master Servicer, those individuals whose names
appear on the lists of Authorized Officers delivered on the Startup Day, which
lists may be amended or supplemented from time to time.
"Available Funds": As defined in Section 7.03(a) hereof.
"Available Funds Cap Rate": As of any Payment Date, an amount,
expressed as a per annum rate and calculated (x) with respect to the Class A-1
Certificates, on the basis of a 360-day year and the actual number of days
elapsed in the related Accrual Period and (y) with respect to the Class A-4,
Class A-5 and Class A-6 Certificates, on the basis of a 360-day year consisting
of twelve thirty-day months, equal to (A)(i) the aggregate amount of interest
accrued and collected (or advanced) at the Coupon Rates on all of the Mortgage
Loans for the related Remittance Period net of Civil Relief Act Shortfalls minus
(ii) the aggregate of the Servicing Fee, the Premium Amount
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and the Trustee's Fee, divided by (B) the aggregate outstanding principal
balance of the Mortgage Loans as of the beginning of the related Remittance
Period.
"Balloon Loan": Any Mortgage Loan which has an amortization
schedule which extends beyond its maturity date, resulting in a relatively large
unamortized principal balance due in a single payment at maturity.
"Base Principal Distribution Amount": With respect to the
Certificates, as of any Payment Date, the lesser of:
(a) the Available Funds, plus any Insured Payment minus the
Interest Distribution Amount, and
(b) (i) the sum, without duplication of:
(A) the principal actually collected by the Master Servicer
with respect to the Mortgage Loans during the related
Remittance Period;
(B) the Loan Balance of each Mortgage Loan that either was
repurchased by the Sponsor or an Originator or purchased
by the Master Servicer or any Sub-Servicer on the
related Remittance Date, to the extent such Loan Balance
is actually received by the Trustee;
(C) any Substitution Amounts delivered by the Sponsor or an
Originator on the related Remittance Date in connection
with a substitution of a Mortgage Loan, to the extent
such Substitution Amounts are actually received by the
Trustee;
(D) all Net Liquidation Proceeds related to principal and
actually collected by the Master Servicer with respect
to the Mortgage Loans during the related Remittance
Period;
(E) the proceeds related to principal received by the
Trustee from any termination;
minus
(ii) the amount of any Overcollateralization Reduction
Amount.
"Benefit Plan Entity": As defined in Section 5.08(c) hereof.
"Business Day": Any day that is not a Saturday, Sunday or other
day on which the Certificate Insurer, the Master Servicer, the Sponsor or the
Trustee is closed or commercial banking institutions in the States of New York,
Delaware or California are authorized or obligated by law or executive order to
be closed.
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"Certificate": Any one of the Class A Certificates, the Class B
Certificates, the Class BS Certificates, the Class R-I Certificates and the
Class R-II Certificates, each representing the interests and the rights
described in this Agreement.
"Certificate Account": The certificate account established in
accordance with Section 7.02 hereof and maintained by the Trustee.
"Certificate Insurance Policy": The Certificate Guaranty Insurance
Policy No. AB0384BE dated August 22, 2000 issued by the Certificate Insurer to
the Trustee for the benefit of the Owners of the Class A Certificates.
"Certificate Insurer": Ambac Assurance Corporation, a
Wisconsin-domiciled stock insurance corporation, or any successor thereto.
"Certificate Insurer Default": Any one of the following events
shall have occurred and be continuing:
(a) the Certificate Insurer shall have failed to make a payment
required under the Certificate Insurance Policy;
(b) the Certificate Insurer shall have (i) filed a petition or
commenced any case or proceeding under any provision or chapter of the
United States Bankruptcy Code or any other similar Federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization, (ii) made a general assignment for the benefit of its
creditors, or (iii) had an order for relief entered against it under
the United States Bankruptcy Code or any other similar Federal or state
law relating to insolvency, bankruptcy, rehabilitation, liquidation or
reorganization which is final and nonappealable; or
(c) a court of competent jurisdiction, the New York Department of
Insurance, or other competent regulatory authority shall have entered a
final and nonappealable order, judgment or decree (i) appointing a
custodian, trustee, agent or receiver for the Certificate Insurer or
for all or any material portion of its property or (ii) authorizing the
taking of possession by a custodian, trustee, agent or receiver of the
Certificate Insurer (or the taking of possession of all or any material
portion of the property of the Certificate Insurer).
"Certificate Principal Balance": With respect to any Class A
Certificate as of any date of determination, the Original Certificate Principal
Balance therefor less any principal amounts actually distributed on such Class A
Certificates pursuant to Section 7.05(d) hereof on all prior Payment Dates;
provided, however, that solely for the purposes of determining the Certificate
Insurer's rights, as subrogee, the Certificate Principal Balance of the Class A
Certificates shall not be reduced by any principal amounts paid to the Owners
thereof from Insured Payments. The Class B Certificates, the Class BS
Certificates, the Class R-I Certificates, the Class R-II Certificates and each
Supplemental Interest Right do not have a Certificate Principal Balance.
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"Civil Relief Act": The Soldiers and Sailors' Civil Relief Act of
1940, as amended from time to time.
"Civil Relief Act Shortfalls": Interest shortfalls resulting from
the application of the Civil Relief Act.
"Class": Any Class of the Class A Certificates, the Class B
Certificates, the Class BS Certificates, the Class R-I Certificates or the Class
R-II Certificates.
"Class A Certificate": Any one of the Class A-1 Certificates, the
Class A-2 Certificates, the Class A-3 Certificates, the Class A-4 Certificates,
the Class A-5 Certificates or the Class A-6 Certificates.
"Class A Current Interest": With respect to any Payment Date, the
Class A-1 Current Interest, the Class A-2 Current Interest, the Class A-3
Current Interest, the Class A-4 Current Interest, the Class A-5 Current Interest
or the Class A-6 Current Interest.
"Class A Distribution Amount": The sum of the Class A-1
Distribution Amount, the Class A-2 Distribution Amount, the Class A-3
Distribution Amount, the Class A-4 Distribution Amount, the Class A-5
Distribution Amount and the Class A-6 Distribution Amount.
"Class A Interest Carry Forward Amount": With respect to any
Payment Date, the Class A-1 Interest Carry Forward Amount, the Class A-2
Interest Carry Forward Amount, the Class A-3 Interest Carry Forward Amount, the
Class A-4 Interest Carry Forward Amount, the Class A-5 Interest Carry Forward
Amount or the Class A-6 Interest Carry Forward Amount, as applicable.
"Class A-1 Certificate": Any one of the Certificates designated on
the face thereof as a Class A-1 Certificate, substantially in the form annexed
hereto as Exhibit A-1, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and evidencing a Regular Interest
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-1 Certificate Principal Balance": As of any date of
determination, the Original Certificate Principal Balance of all Class A-1
Certificates less any principal amounts actually distributed with respect to the
Class A-1 Certificates pursuant to Section 7.05(d)(i) hereof on all prior
Payment Dates.
"Class A-1 Current Interest": With respect to any Payment Date,
the amount of interest accrued on the Class A-1 Certificate Principal Balance
during the related Accrual Period at the Class A-1 Pass-Through Rate.
"Class A-1 Distribution Amount": With respect to any Payment Date,
the sum of (x) the Class A-1 Current Interest, (y) the Class A-1 Interest Carry
Forward Amount, if any, and (z) the Principal Distribution Amount payable to the
Owners of Class A-1 Certificates pursuant to Section 7.05(d)(i) hereof.
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"Class A-1 Interest Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the sum of (A) the
Class A-1 Current Interest as of the immediately preceding Payment Date and (B)
any unpaid Class A-1 Interest Carry Forward Amount, as calculated up through the
previous Payment Date and outstanding on such immediately preceding Payment
Date, exceeds (ii) the amount of the actual distribution with respect to
interest made to the Owners of the Class A-1 Certificates on the immediately
preceding Payment Date and (y) interest on such amount at the Class A-1
Pass-Through Rate calculated on the basis of the actual number of days in the
related Accrual Period and a year of 360 days.
"Class A-1 Pass-Through Rate": With respect to any Payment Date,
the Class A-1 Pass-Through Rate will be equal to the lesser of (x) LIBOR plus
0.14% per annum and (y) the Available Funds Cap Rate for such Payment Date.
"Class A-2 Certificate": Any one of the Certificates designated on the face
thereof as a Class A-2 Certificate, substantially in the form annexed hereto as
Exhibit A-2, authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and evidencing a Regular Interest in the
Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-2 Certificate Principal Balance": As of any date of
determination, the Original Certificate Principal Balance of all Class A-2
Certificates less any principal amounts actually distributed with respect to the
Class A-2 Certificates pursuant to Section 7.05(d)(i) hereof on all prior
Payment Dates.
"Class A-2 Current Interest": With respect to any Payment Date,
the amount of interest accrued on the Class A-2 Certificate Principal Balance
during the related Accrual Period at the Class A-2 Pass-Through Rate.
"Class A-2 Distribution Amount": With respect to any Payment Date,
the sum of (x) the Class A-2 Current Interest, (y) the Class A-2 Interest Carry
Forward Amount, if any, and (z) the Principal Distribution Amount payable to the
Owners of Class A-2 Certificates pursuant to Section 7.05(d)(i) hereof.
"Class A-2 Interest Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the sum of (A) the
Class A-2 Current Interest as of the immediately preceding Payment Date and (B)
any unpaid Class A-2 Interest Carry Forward Amount, as calculated up through the
previous Payment Date and outstanding on such immediately preceding Payment
Date, exceeds (ii) the amount of the actual distribution with respect to
interest made to the Owners of the Class A-2 Certificates on such immediately
preceding Payment Date and (y) 30 days' interest on such amount at the Class A-2
Pass-Through Rate.
"Class A-2 Pass-Through Rate": With respect to any Payment Date,
the Class A-2 Pass-Through Rate will be equal to 7.61% per annum.
"Class A-3 Certificate": Any one of the Certificates designated on
the face thereof as a Class A-3 Certificate, substantially in the form annexed
hereto as
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Exhibit A-3, authenticated and delivered by the Trustee, representing the right
to distributions as set forth herein and evidencing a Regular Interest in the
Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-3 Certificate Principal Balance": As of any date of
determination, the Original Certificate Principal Balance of all Class A-3
Certificates less any principal amounts actually distributed with respect to the
Class A-3 Certificates pursuant to Section 7.05(d)(i) hereof on all prior
Payment Dates.
"Class A-3 Current Interest": With respect to any Payment Date,
the amount of interest accrued on the Class A-3 Certificate Principal Balance
during the related Accrual Period at the Class A-3 Pass-Through Rate.
"Class A-3 Distribution Amount": With respect to any Payment Date,
the sum of (x) the Class A-3 Current Interest, (y) the Class A-3 Interest Carry
Forward Amount, if any, and (z) the Principal Distribution Amount payable to the
Owners of Class A-3 Certificates pursuant to Section 7.05(d)(i) hereof.
"Class A-3 Interest Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the sum of (A) the
Class A-3 Current Interest as of the immediately preceding Payment Date and (B)
any unpaid Class A-3 Interest Carry Forward Amount, as calculated up through the
previous Payment Date and outstanding on such immediately preceding Payment
Date, exceeds (ii) the amount of the actual distribution with respect to
interest made to the Owners of the Class A-3 Certificates on such immediately
preceding Payment Date and (y) 30 days' interest on such amount at the Class A-3
Pass-Through Rate.
"Class A-3 Pass-Through Rate": With respect to any Payment Date,
the Class A-3 Pass-Through Rate will be equal to 7.76% per annum.
"Class A-4 Certificate": Any one of the Certificates designated on
the face thereof as a Class A-4 Certificate, substantially in the form annexed
hereto as Exhibit A-4, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and evidencing a Regular Interest
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-4 Certificate Principal Balance": As of any date of
determination, the Original Certificate Principal Balance of all Class A-4
Certificates less any principal amounts actually distributed with respect to the
Class A-4 Certificates pursuant to Section 7.05(d)(i) hereof on all prior
Payment Dates.
"Class A-4 Current Interest": With respect to any Payment Date,
the amount of interest accrued on the Class A-4 Certificate Principal Balance
during the related Accrual Period at the Class A-4 Pass-Through Rate.
"Class A-4 Distribution Amount": With respect to any Payment Date,
the sum of (x) the Class A-4 Current Interest, (y) the Class A-4 Interest Carry
Forward
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Amount, if any, and (z) the Principal Distribution Amount payable to the Owners
of Class A-4 Certificates pursuant to Section 7.05(d)(i) hereof.
"Class A-4 Interest Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the sum of (A) the
Class A-4 Current Interest as of the immediately preceding Payment Date and (B)
any unpaid Class A-4 Interest Carry Forward Amount, as calculated up through the
previous Payment Date and outstanding on such immediately preceding Payment
Date, exceeds (ii) the amount of the actual distribution with respect to
interest made to the Owners of the Class A-4 Certificates on such immediately
preceding Payment Date and (y) 30 days' interest on such amount at the Class A-4
Pass-Through Rate.
"Class A-4 Pass-Through Rate": The Class A-4 Pass-Through Rate
will be equal to (x) with respect to any Payment Date which occurs on or prior
to the Step-Up Payment Date, 7.93% per annum, or (y) with respect to any Payment
Date thereafter, 8.68% per annum.
"Class A-5 Certificate": Any one of the Certificates designated on
the face thereof as a Class A-5 Certificate, substantially in the form annexed
hereto as Exhibit A-5, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and evidencing a Regular Interest
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-5 Certificate Principal Balance": As of any date of
determination, the Original Certificate Principal Balance of all Class A-5
Certificates less any principal amounts actually distributed with respect to the
Class A-5 Certificates pursuant to Section 7.05(d)(i) hereof on all prior
Payment Dates.
"Class A-5 Current Interest": With respect to any Payment Date,
the amount of interest accrued on the Class A-5 Certificate Principal Balance
during the related Accrual Period at the Class A-5 Pass-Through Rate.
"Class A-5 Distribution Amount": With respect to any Payment Date,
the sum of (x) the Class A-5 Current Interest, (y) the Class A-5 Interest Carry
Forward Amount, if any, and (z) the Principal Distribution Amount payable to the
Owners of Class A-5 Certificates pursuant to Section 7.05(d)(i) hereof.
"Class A-5 Interest Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the sum of (A) the
Class A-5 Current Interest as of the immediately preceding Payment Date and (B)
any unpaid Class A-5 Interest Carry Forward Amount, as calculated up through the
previous Payment Date and outstanding on such immediately preceding Payment
Date, exceeds (ii) the amount of the actual distribution with respect to
interest made to the Owners of the Class A-5 Certificates on such immediately
preceding Payment Date and (y) 30 days' interest on such amount at the Class A-5
Pass-Through Rate.
"Class A-5 Pass-Through Rate": The Class A-5 Pass-Through Rate
will be equal to the lesser of (x)(i) with respect to any Payment Date which
occurs on or prior
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to the Step-Up Payment Date, 8.25% per annum, or (ii) with respect to any
Payment Date thereafter, 9.00% per annum and (y) the Available Funds Cap Rate
for such Payment Date.
"Class A-6 Certificate": Any one of the Certificates designated on
the face thereof as a Class A-6 Certificate, substantially in the form annexed
hereto as Exhibit A-6, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and evidencing a Regular Interest
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class A-6 Certificate Principal Balance": As of any date of
determination, the Original Certificate Principal Balance of all Class A-6
Certificates less any principal amounts actually distributed with respect to the
Class A-6 Certificates pursuant to Section 7.05(d)(i) hereof on all prior
Payment Dates.
"Class A-6 Current Interest": With respect to any Payment Date,
the amount of interest accrued on the Class A-6 Certificate Principal Balance
during the related Accrual Period at the Class A-6 Pass-Through Rate.
"Class A-6 Distribution Amount": With respect to any Payment Date,
the sum of (x) the Class A-6 Current Interest, (y) the Class A-6 Interest Carry
Forward Amount, if any, and (z) Class A-6 Principal Distribution Amount payable
to the Owners of the Class A-6 Certificates pursuant to Section 7.05(c)(i)
hereof.
"Class A-6 Interest Carry Forward Amount": With respect to any
Payment Date, the sum of (x) the amount, if any, by which (i) the sum of (A) the
Class A-6 Current Interest as of the immediately preceding Payment Date and (B)
any unpaid Class A-6 Interest Carry Forward Amount, as calculated up through the
previous Payment Date and outstanding on such immediately preceding Payment
Date, exceeds (ii) the amount of the actual distribution with respect to
interest made to the Owners of the Class A-6 Certificates on such immediately
preceding Payment Date and (y) 30 days' interest on such amount at the Class A-6
Pass-Through Rate.
"Class A-6 Pass-Through Rate": The Class A-6 Pass-Through Rate
will be equal to the lesser of (x) (i) with respect to any Payment Date which
occurs on or prior to the Step-Up Payment Date, 7.72% per annum or (ii) with
respect to any Payment Date thereafter, 8.47% per annum and (y) the Available
Funds Cap Rate for such Payment Date.
"Class A-6 Principal Distribution Amount": With respect to any
Payment Date will be the "applicable percentage" set forth below of the Class
A-6 Pro Rata Principal Distribution Amount:
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APPLICABLE
PERIOD PERCENTAGE
------ ----------
September 2000-August 2003 0.00%
September 2003-August 2005 45.00%
September 2005-August 2006 80.00%
September 2006-August 2007 100.00%
September 2007 and thereafter 300.00%
"Class A-6 Pro Rata Principal Distribution Amount": With respect
to any Payment Date, an amount equal to the product of (x) the Principal
Distribution Amount for such Payment Date and (y) a fraction, the numerator of
which is the Class A-6 Certificate Principal Balance immediately prior to such
Payment Date and the denominator of which is the aggregate Certificate Principal
Balance of the Class A Certificates immediately prior to such Payment Date.
"Class B Certificate": Any one of the Certificates designated on
the face thereof as a Class B Certificate, substantially in the form annexed
hereto as Exhibit B-1, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein and evidencing a Regular Interest
in the Upper-Tier REMIC for purposes of the REMIC Provisions.
"Class B Distribution Amount": With respect to any Payment Date,
the amount payable to the Owners of the Class B Certificates shall equal the
excess of the product of (i) 100 times the weighted average coupon of the
Lower-Tier REMIC Regular Interests where each of Lower-Tier Xxxxxxxx 0,
Xxxxx-Xxxx 0, Xxxxx-Xxxx Interest 3, Lower-Tier Interest 4, Lower-Tier Interest
5, and Lower-Tier Interest 6 is first subject to a cap and a floor equal to the
Pass-Through Rate of its Corresponding Class (as defined in Section 2.08) and
Lower-Tier Interest 7 and Lower-Tier Interest 8 are each subject to a cap equal
to 0%, and (ii) the principal balance of each such Lower-Tier REMIC Regular
Interest. The foregoing shall constitute the Class B Pass-Through Rate for
federal income tax purposes. Payments to the Class B Certificates, however,
shall be subordinated to the extent provided in Section 7.05. hereof.
"Class B Pass-Through Rate": With respect to any Payment Date, the
interest payable at the Net Weighted Average Coupon Rate on the Mortgage Loans
in excess of the interest payable on the Class A Certificates, expressed as a
per annum rate on the aggregate Loan Balance of the Mortgage Loans.
"Class BS Certificate": Any one of the Certificates designated on
the face thereof as a Class BS Certificate, substantially in the form annexed
hereto as Exhibit B-3, authenticated and delivered by the Trustee, representing
the right to distributions as set forth herein.
"Class R-I Certificate": Any one of the Certificates designated on
the face thereof as a Class R-I Certificate, substantially in the form annexed
hereto as Exhibit B-5, authenticated and delivered by the Trustee, representing
the right to distributions as set
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forth herein, and evidencing an interest designated as the "residual interest"
in the Lower-Tier REMIC for the purposes of the REMIC Provisions.
"Class R-II Certificate": Any one of the Certificates designated
on the face thereof as a Class R-II Certificate, substantially in the form
annexed hereto as Exhibit B-6, authenticated and delivered by the Trustee,
representing the right to receive distributions as set forth herein, and
evidencing an interest designated as the "residual interest" in the Upper-Tier
REMIC for the purposes of the REMIC Provisions.
"Clean-Up Call Date": The Payment Date on which the Redeeming
Party elects to exercise its right to purchase all of the Mortgage Loans
pursuant to Section 9.02 hereof.
"Clearstream": Clearstream Banking, societe anonyme.
"Code": The Internal Revenue Code of 1986, as amended and any
successor statute.
"Combined Loan-to-Value Ratio": (A) With respect to any First
Mortgage Loan, the percentage equal to the Original Principal Amount of the
related Note divided by the Appraised Value of the related Property and (B) with
respect to any Junior Mortgage Loan, the percentage equal to the sum of (i) the
remaining principal balance of the Senior Lien note(s), as of the date of
origination of the Junior Mortgage Loan, as appropriate, and (ii) the Original
Principal Amount of the Note of such Junior Mortgage Loan, as appropriate,
divided by the Appraised Value of the related Property.
"Compensating Interest": The amount defined in Section 8.09(b)
hereof.
"Control Party": Until the last sentence of Section 11.18 hereof
is applicable and so long as no Certificate Insurer Default has occurred and is
continuing, the Certificate Insurer, and thereafter, the Trustee.
"Coupon Rate": The rate of interest borne by each Note.
"Current Interest": With respect to any Payment Date, the sum of
the Class A-1 Current Interest, the Class A-2 Current Interest, the Class A-3
Current Interest, the Class A-4 Current Interest, the Class A-5 Current Interest
and the Class A-6 Current Interest.
"Date of Payment Loan": Any Mortgage Loan as to which, pursuant to
the Note relating thereto, interest is computed and charged to the Mortgagor at
the Coupon Rate on the outstanding principal balance of such Note based on the
number of days elapsed between receipt of the Mortgagor's last payment through
receipt of the Mortgagor's most current payment.
"Deficiency Amount": As defined in the Policy.
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"Definitive Certificate": Certificates issued in definitive form
without coupons.
"Delinquency Advance": The amount defined in Section 8.09(a)
hereof.
"Delinquent": A Mortgage Loan is "delinquent" if any payment due
thereon is not made by the close of business on the day such payment is
scheduled to be due. A Mortgage Loan is "30 days delinquent" if such payment has
not been received by the close of business on the corresponding day of the month
immediately succeeding the month in which such payment was due, or, if there is
no such corresponding day (e.g., as when a 30-day month follows a 31-day month
in which a payment was due on the 31st day of such month) then on the last day
of such immediately succeeding month. Similarly for "60 days delinquent," "90
days delinquent" and so on.
"Delivery Order": The delivery order in the form set forth as
Exhibit F hereto and delivered by the Sponsor to the Trustee on the Startup Day
pursuant to Section 4.01 hereof.
"Depository": The Depository Trust Company, 0 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 and any successor Depository hereafter named.
"Designated Depository Institution": With respect to each Account,
an institution whose deposits are insured by the Bank Insurance Fund or the
Savings Association Insurance Fund of the FDIC, the long-term deposits of which
shall be rated A2 or better by Moody's or A or better by Standard & Poor's and
the short-term deposits of which shall be rated P-1 or better by Moody's and A-1
or better by Standard & Poor's, unless otherwise approved in writing by the
Trustee, the Certificate Insurer, Moody's and Standard & Poor's, and which is
any of the following: (i) a federal savings and loan association duly organized,
validly existing and in good standing under the federal banking laws, (ii) an
institution duly organized, validly existing and in good standing under the
applicable banking laws of any state, (iii) a national banking association duly
organized, validly existing and in good standing under the federal banking laws,
(iv) a principal subsidiary of a bank holding company, or (v) approved in
writing by the Trustee, the Certificate Insurer, Moody's and Standard & Poor's;
provided, however, that any such institution or association shall have combined
capital, surplus and undivided profits of at least $100,000,000. Notwithstanding
the foregoing, an Account may be held by an institution otherwise meeting the
preceding requirements except that the only applicable rating requirement shall
be that the unsecured and uncollateralized debt obligations thereof shall be
rated Baa3 or better by Moody's or BBB or better by Standard & Poor's if such
institution has trust powers and such Account is held by such institution in its
corporate trust department.
"Designated Residual Owner": Advanta Finance Residual Corporation.
"Determination Date": As to each Payment Date, the third Business
Day preceding such Payment Date or such earlier day as shall be agreed to by the
Certificate Insurer and the Trustee.
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"Direct Participant" or "DTC Participant": Any broker-dealer, bank
or other financial institution for which the Depository holds Class A
Certificates from time to time as a securities depository.
"Disqualified Organization": Shall have the meaning set forth from
time to time in the definition thereof at Section 860E(e)(5) of the Code (or any
successor statute thereto) and applicable to the Trust.
"Document Delivery Requirements": The Sponsor's obligations to
deliver certain legal documents, to prepare and record certain Mortgage
assignments or to deliver certain opinions relating to Mortgage assignments, in
each case with respect to the Mortgage Loans and as set forth in Section 3.05(c)
hereof.
"DTC": The Depository Trust Company.
"Eligible Investments": Those investments so designated pursuant
to Section 7.07 hereof.
"Euroclear": The Xxxxxx Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Event of Default": Any event described in Sections 8.20(a) or (b)
hereof.
"Xxxxxx Mae": The Federal National Mortgage Association, a
federally-chartered and privately-owned corporation existing under the Federal
National Mortgage Association Charter Act, as amended, or any successor thereof.
"FDIC": The Federal Deposit Insurance Corporation, or any
successor thereto.
"Final Determination": As defined in Section 9.03(a) hereof.
"First Mortgage Loan": A Mortgage Loan which constitutes a first
priority mortgage lien with respect to any Property.
"Fixed Rate Certificates": The Class A-2, Class A-3, Class A-4,
Class A-5 and Class A-6 Certificates.
"Formula Pass-Through Rate": With respect to the Class A-1
Certificates, the interest rate resulting from the calculation set forth in
clause (x) in the definition of the Class A-1 Pass-Through Rate.
"Xxxxxxx Mac": The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created pursuant to the Emergency
Home Finance Act of 1970, as amended, or any successor thereof.
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"Indemnification Agreement": The Indemnification Agreement dated
as of August 16, 2000 among the Certificate Insurer and the Underwriters as may
be amended from time to time.
"Indirect Participant" shall mean any financial institution for
whom any Direct Participant holds an interest in a Class A Certificate.
"Initial Clean-Up Call Date": The first Payment Date following the
date on which the aggregate Loan Balances of all Mortgage Loans has declined to
10% or less of the aggregate Original Certificate Principal Balance of the Class
A Certificates.
"Initial Cut-Off Date": The date as of which Initial Mortgage
Loans are transferred and assigned to the Trust, which date shall be the opening
of business on August 1, 2000.
"Initial Mortgage Loans" shall mean Mortgage Loans conveyed, or
caused to be conveyed, to the Trust by the Sponsor on the Startup Day.
"Insurance Agreement": The Insurance and Indemnity Agreement dated
as of August 22, 2000 between the Sponsor, the Master Servicer, the Trustee and
the Certificate Insurer, as it may be amended from time to time.
"Insured Amount": As defined in the Policy.
"Insured Payment": As defined in the Policy.
"Interest Determination Date": With respect to any Payment Date
for the Class A-1 Certificates, the second London Business Day preceding the
Accrual Period relating to such Payment Date or with respect to the September
2000 Payment Date, the second London Business Day preceding the Startup Day.
"Interest Distribution Amount": As of any Payment Date, the sum of
(i) the Class A-1 Current Interest, Class A-2 Current Interest, Class A-3
Current Interest, Class A-4 Current Interest, Class A-5 Current Interest and
Class A-6 Current Interest and (ii) any Class A-1 Interest Carry Forward Amount,
Class A-2 Interest Carry Forward Amount, Class A-3 Interest Carry Forward
Amount, Class A-4 Interest Carry Forward Amount, Class A-5 Interest Carry
Forward Amount and Class A-6 Interest Carry Forward Amount.
"Interest Remittance Amount": As of any Remittance Date with
respect to the Mortgage Loans, the sum, without duplication, of (i) all interest
accrued during the related Remittance Period (less the Servicing Fee with
respect to such Mortgage Loans) and actually collected prior to such Remittance
Date, (ii) all Delinquency Advances and all Special Advances made by the Master
Servicer on such Remittance Date, (iii) all Compensating Interest paid by the
Master Servicer on such Remittance Date, net of amounts allowed to be retained
pursuant to Section 8.08(c), (iv) the portion of the Loan Purchase Price and the
Substitution Amount relating to accrued interest on the Mortgage Loans, (v) the
portion of any Net Liquidation Proceeds relating to accrued and unpaid
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interest, (vi) the proceeds of any liquidation of the Trust Estate (to the
extent such proceeds relate to interest) and (vii) until such time as the
Overcollateralization Amount first reaches the Specified Overcollateralization
Amount, all Prepayment Penalties actually received by the Master Servicer.
"Junior Mortgage Loan": A Mortgage Loan which constitutes a junior
priority mortgage lien with respect to the related Property.
"Late Payment Rate": The rate defined in the Insurance Agreement.
"LIBOR": With respect to any Accrual Period for the Class A-1
Certificates, the rate determined by the Trustee.
On each Interest Determination Date, the Trustee will determine
LIBOR for the next Accrual Period for the Class A-1 Certificates as follows:
first, on the basis of offered rates for one month United States
dollar deposits, as this rate appears on Telerate Page 3750, as of
11:00 a.m., London time;
second, if such rate does not appear on Telerate Page 3750 as of
11:00 a.m., London time, LIBOR will be the arithmetic mean of the
offered quotations of two or more Reference Banks, rounded to the
nearest whole multiple of 1/16%; and
third, if fewer than two Reference Banks provide offered
quotations, LIBOR for the Accrual Period for the Class A-1 Certificates
will be the higher of (x) LIBOR as determined on the previous Interest
Determination Date and (y) the Reserve Interest Rate. The establishment
of LIBOR on each Interest Determination Date by the Trustee and the
Trustee's calculation of the rate of interest applicable to the Class
A-1 Certificates for the related Accrual Period will, in the absence of
manifest error, be final and binding.
"Liquidated Loan": A Mortgage Loan with respect to which the
related Property has been acquired, liquidated or foreclosed and with respect to
which the Master Servicer determines that all Liquidation Proceeds which it
expects to recover from or on account of such Mortgage Loan have been recovered.
A Mortgage Loan which is purchased from the Trust pursuant to Section 3.03,
3.04, 3.06(b) or 8.10 hereof is not a "Liquidated Loan".
"Liquidation Expenses": Expenses which are incurred by the Master
Servicer or any Sub-Servicer in connection with the liquidation of any defaulted
Mortgage Loan, such expenses include, without limitation, legal fees and
expenses, and any unreimbursed Servicing Advances expended by the Master
Servicer or any Sub-Servicer pursuant to Section 8.09.
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"Liquidation Proceeds": With respect to any Liquidated Loan, any
amounts (including the proceeds of any Mortgage Insurance Policy) recovered by
the Master Servicer in connection with such Liquidated Loan, whether through
trustee's sale, foreclosure sale or otherwise, including payments in connection
with such Liquidated Loan received from the related Mortgagor, other than the
amounts required to be paid to the Mortgagor pursuant to the terms of the
applicable Mortgage or to be applied otherwise pursuant to law.
"Loan Balance": With respect to each Mortgage Loan, the
outstanding principal balance thereof as of the Initial Cut-Off Date, or
Replacement Cut-Off Date, as the case may be, less any principal amount relating
to such Mortgage Loan included in previous Monthly Remittance Amounts that were
transferred by the Master Servicer or any Sub-Servicer to the Trustee for
deposit in the Certificate Account; provided, however, that the Loan Balance for
any Mortgage Loan which has become a Liquidated Loan shall be zero as of the
first day of the Remittance Period following the Remittance Period in which such
Mortgage Loan becomes a Liquidated Loan, and at all times thereafter.
"Loan Purchase Price": With respect to any Mortgage Loan purchased
from the Trust on a Remittance Date pursuant to Section 3.03, 3.04, 3.06(b) or
8.10 hereof and for which a Qualified Replacement Mortgage was included, an
amount equal to the Loan Balance of such Mortgage Loan as of such Remittance
Date, plus one month's accrued interest (if not already deposited in the
Principal and Interest Account) on the outstanding Loan Balance as of the
beginning of the related Remittance Period computed at the Coupon Rate less the
Servicing Fee (expressed as an annual percentage rate), together with, without
duplication, the aggregate amount of (i) all Delinquency Advances which the
Master Servicer or any Sub-Servicer has theretofore failed to remit with respect
to such Mortgage Loan and (ii) any Reimbursement Amount relating to such
Mortgage Loan.
"London Business Day": A day on which banks are open for dealing
in foreign currency and exchange in London and New York City.
"Lower-Tier Balance": As to each Class of Lower-Tier Interests and
any Payment Date, the Initial Lower-Tier Balance as set forth in Section 2.08(a)
minus all amounts distributed as principal of such Class on previous Payment
Dates.
"Lower-Tier Interest 1": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest 2": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest 3": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest 4": The interest of that name established
pursuant to Section 2.08(a) hereof.
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"Lower-Tier Interest 5": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest 6": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest 7": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Interest 8": The interest of that name established
pursuant to Section 2.08(a) hereof.
"Lower-Tier Pass-Through Rate": As to each of the respective
Lower-Tier Interests, the applicable "Lower-Tier Pass-Through Rate" set forth in
Section 2.08 hereof.
"Lower-Tier REMIC": The segregated pool of assets consisting of
the Mortgage Loans, the Accounts (except for the Non-REMIC Estate), any REO
Property and any proceeds of the foregoing.
"Lower-Tier REMIC Interests": As defined in Section 2.08(b)
hereof.
"Lower-Tier REMIC Regular Interests": As defined in Section
2.08(b) hereof.
"Lower-Tier REMIC Residual Interest": The Class R-I Certificate.
"Master Servicer": Advanta Mortgage Corp. USA, a Delaware
corporation, and its permitted successors and assigns.
"Master Servicer Affiliate": A Person (i) controlling, controlled
by or under common control with the Master Servicer and (ii) which is qualified
to service residential mortgage loans and is acting as a Sub-Servicer pursuant
to Section 8.03 hereof.
"Master Servicer's Trust Receipt": The Master Servicer's trust
receipt in the form set forth as Exhibit J hereto.
"Monthly Remittance Amount": As of any Remittance Date, the sum of
(i) the Interest Remittance Amount and (ii) the Principal Remittance Amount.
"Moody's": Xxxxx'x Investors Service, Inc.
"Mortgage": The mortgage, deed of trust or other instrument
creating a first or junior lien on an interest in real property securing a Note.
"Mortgage File": For each Mortgage Loan, the items listed below:
(a) the original Note, or , if such Note is lost, a certified copy
thereof along with a Lost Note Affidavit in the form of Exhibit K
hereto, bearing all
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intervening endorsements, endorsed either (i) "Pay to the order of
Bankers Trust Company of California, N.A., as custodian or trustee
under the applicable custody or trust agreement, without recourse" or
(ii) "Pay to the order of Bankers Trust Company of California, N.A., as
custodian or trustee under the applicable custody or trust agreement,
without recourse, Advanta Mortgage Corp. USA as Master Servicer," or
(iii) "Pay to the order of Bankers Trust Company of California, N.A.,
as custodian or trustee" by [Seller, signature, name, title] and signed
in the name of the previous owner by an authorized officer (in the
event that the Mortgage Loan was acquired by the previous owner in a
merger the signature must be in the following form: "[the previous
owner], successor by merger to [name of predecessor]", in the event
that the Mortgage Loan was acquired or originated while doing business
under another name, the signature must be in the following form: "[the
previous owner], formerly known as [previous name]" or (iv) "Pay to the
order of Bankers Trust Company of California, N.A., without recourse"
or (v) "Pay to the order of _______________, without recourse". The
original Note should be accompanied by any rider made in connection
with the origination of the related Mortgage Loan;
(b) the original of any guarantee executed in connection with the
Note (if any),
(c) the original Mortgage with evidence of recording thereon or
copies certified by the related recording office or, if the original
Mortgage has not yet been returned from the recording office, a
certified copy of the Mortgage;
(d) the originals of any assumption, modification, consolidation
or extension agreements;
(e) the original assignment of Mortgage of each Mortgage Loan to
"Bankers Trust Company of California, N.A., as custodian or trustee",
"Bankers Trust Company of California, N.A. as trustee or custodian on
behalf of Advanta Conduit Receivables, Inc.", "Bankers Trust Company of
California, N.A., as trustee" or "____________________." In the event
that the Mortgage Loan was acquired by the previous owner in a merger,
the assignment of Mortgage must be by the "(previous owner), successor
by merger to (names of predecessor)"; and in the event that the
Mortgage Loan was acquired or originated by the previous owner while
doing business under another name, the Assignment of Mortgage must be
by the "(previous owner), formerly known as (previous name)";
(f) the originals of all intervening assignments of Mortgage,
showing a complete chain of assignment from origination to the related
Originator, including warehousing assignments, with evidence of
recording thereon (or, if an original intervening assignment has not
been returned from the recording office, a certified copy thereof); and
(g) any assignment of Mortgages required to be delivered under
Section 3.05(c)(i) or 3.05(c)(ii) hereunder.
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"Mortgage Insurance Policy": Any hazard, title or primary mortgage
insurance policy relating to a Mortgage Loan, but excluding any non-mortgage
related or credit life insurance policy. The term "Mortgage Insurance Policy"
shall not include the Certificate Insurance Policy.
"Mortgage Loan Transfer Agreement": The Mortgage Loan Transfer
Agreement dated as of August 1, 2000 among the Sponsor, the Trustee and the
Originators named therein together with any related Conveyance Agreements (as
defined therein).
"Mortgage Loans": The mortgage loans transferred and assigned to
the Trust pursuant to Section 3.05(a) hereof, together with any Qualified
Replacement Mortgages substituted therefor in accordance with this Agreement,
identified in the Schedule of Mortgage Loans. The term "Mortgage Loan" includes
the terms "First Mortgage Loan" and "Junior Mortgage Loan". The term "Mortgage
Loan" includes any Mortgage Loan which is Delinquent, which relates to a
foreclosure or which relates to a Property which is an REO Property prior to
such Property's disposition by the Trust. Any mortgage loan which, although
intended by the parties hereto to have been, and which purportedly was,
transferred and assigned to the Trust by the Sponsor, in fact was not
transferred and assigned to the Trust for any reason whatsoever shall
nevertheless be considered a "Mortgage Loan" for all purposes of this Agreement.
The term "Mortgage Loan" includes the terms "Initial Mortgage Loan" and
"Qualified Replacement Mortgage".
"Mortgagor": The obligor on a Note.
"Net Liquidation Proceeds": As to any Liquidated Loan, Liquidation
Proceeds net of, without duplication, Liquidation Expenses, unreimbursed
Servicing Advances, unreimbursed Delinquency Advances and accrued and unpaid
Servicing Fees through the date of liquidation. In no event shall Net
Liquidation Proceeds with respect to any Liquidated Loan be less than zero.
"Net Monthly Excess Cashflow": As of any Payment Date, the
Available Funds, if any, remaining after application of the items listed in
clauses (i) through (xii) of Section 7.05(c) hereof on such Payment Date.
"Net Weighted Average Coupon Rate": With respect to any Payment
Date, the weighted average of the Coupon Rates of the Mortgage Loans (weighted
by the Loan Balances of the Mortgage Loans), less the sum of (A) 0.50% per
annum, (B) the Trustee Fee Rate and (C) the Premium Percentage.
"Nonrecoverable Advances": With respect to any Mortgage Loan, (i)
any Delinquency Advance or Servicing Advance previously made and not reimbursed
pursuant to Sections 7.05(c)(x) or 8.09, (ii) a Delinquency Advance or Servicing
Advance proposed to be made in respect of a Mortgage Loan or REO Property either
of which, in the good faith business judgment of the Master Servicer, as
evidenced by an Officer's Certificate delivered no later than one Business Day
prior to the related
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Determination Date to the Certificate Insurer and the Trustee, would not be
ultimately recoverable pursuant to Sections 7.05(c)(x) or 8.09 or (iii) any
other advance identified as a Nonrecoverable Advance in Section 8.09(d).
"Non-REMIC Estate": Collectively, the Supplemental Interest Trust
and the Supplemental Interest Payment Account.
"Non-United States Person": Any Person other than a United States
Person.
"Note": The note or other evidence of indebtedness of a Mortgagor
under a Mortgage Loan.
"Offered Certificates": The Class A Certificates.
"Officer's Certificate": A certificate signed by any Authorized
Officer of any Person delivering such certificate.
"Operative Documents": Collectively, this Agreement, the Mortgage
Loan Transfer Agreement, the Certificate Insurance Policy, the Insurance
Agreement, the Indemnification Agreement and the Certificates.
"Original Balance": The aggregate principal balances of the
Initial Mortgage Loans as of the Initial Cut-Off Date, which equals
$656,296,189.92.
"Original Certificate Principal Balance": The Certificate
Principal Balances as of the Startup Day of each of the following Classes of
Certificates:
Class A-1 Certificates = $258,839,000
Class A-2 Certificates = $54,646,000
Class A-3 Certificates = $123,250,000
Class A-4 Certificates = $83,139,000
Class A-5 Certificates = $64,854,000
Class A-6 Certificates = $65,000,000
"Original Principal Amount": With respect to each Note, the
principal amount of such Note on the date of origination thereof.
"Originator": Any entity from which the Sponsor has purchased
Mortgage Loans, including Advanta Mortgage Corp. USA, a Delaware corporation,
Advanta Mortgage Corp. Midwest, a Pennsylvania corporation, Advanta Mortgage
Receivables, Inc., a Delaware corporation, Advanta National Bank, a national
banking association, and Advanta Bank Corp., a Utah industrial loan corporation.
"Outstanding": With respect to all Certificates of a Class, as of
any date of determination, all such Certificates theretofore executed and
delivered hereunder except:
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(i) Certificates theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Certificates or portions thereof for which full and final
payment money in the necessary amount has been theretofore deposited
with the Trustee in trust for the Owners of such Certificates;
(iii) Certificates in exchange for or in lieu of which other
Certificates have been executed and delivered pursuant to this
Agreement, unless proof satisfactory to the Trustee is presented that
any such Certificates are held by a bona fide purchaser; and
(iv) Certificates alleged to have been destroyed, lost or stolen
for which replacement Certificates have been issued as provided for in
Section 5.05 hereof.
"Overcollateralization Amount": As of any Payment Date, the
amount, if any, by which (x) the aggregate Loan Balance of the Mortgage Loans as
of the close of business on the last day of the immediately preceding Remittance
Period exceeds (y) the aggregate Certificate Principal Balance of the Class A
Certificates after taking into account all distributions of principal on such
Class A Certificates as of such Payment Date (except for any payment to be made
as to principal from the proceeds of the Certificate Insurance Policy).
"Overcollateralization Deficiency Amount": With respect to any
Payment Date, the excess, if any, of (x) the Specified Overcollateralization
Amount over (y) the Overcollateralization Amount.
"Overcollateralization Deficit": With respect to any Payment Date,
the amount, if any, by which (x) the aggregate Certificate Principal Balance of
the Class A Certificates, after taking into account all distributions to be made
on such Payment Date (except for any payment to be made as to principal from the
proceeds of the Certificate Insurance Policy), exceeds (y) the aggregate
principal balance of the Mortgage Loans as of the close of business on the last
day of the preceding Remittance Period.
"Overcollateralization Increase Amount": As of any Payment Date,
the lesser of (x) the Overcollateralization Deficiency Amount and (y) the Net
Monthly Excess Cashflow.
"Overcollateralization Reduction Amount": As of any Payment Date,
the lesser of (x) the Principal Remittance Amount for such Payment Date and (y)
the excess of (i) the Overcollateralization Amount for such Payment Date, over
(ii) the Specified Overcollateralization Amount for such Payment Date.
"Owner": The Person in whose name a Certificate is registered in
the Register, to the extent described in Section 5.06.
"Pass-Through Rate": The Class A-1 Pass-Through Rate, the Class
A-2 Pass-Through Rate, the Class A-3 Pass-Through Rate, the Class A-4
Pass-Through Rate,
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the Class A-5 Pass-Through Rate, the Class A-6 Pass-Through Rate or the Class B
Pass-Through Rate, as applicable.
"Payment Date": Any date on which the Trustee is required to make
distributions to the Owners, which shall be the 25th day of each calendar month,
or if the 25th day is not a Business Day, then the next succeeding Business Day,
commencing September 25, 2000.
"Percentage Interest": As to any Class A Certificate, that
percentage, expressed as a fraction, the numerator of which is the Original
Certificate Principal Balance of such Certificate and the denominator of which
is the Original Certificate Principal Balance of all Certificates of the same
Class; and as to any Class B, Class BS, Class R-I or Class R-II Certificate,
that percentage interest set forth on such Class B, Class BS, Class R-I or Class
R-II Certificate, respectively.
"Person": Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Pool Cumulative Realized Losses": With respect to any period, the
sum of all Realized Losses with respect to the Mortgage Loans experienced during
such period.
"Pool Factor": As defined in Section 7.08(a)(xvi) hereof.
"Pool Principal Balance": The aggregate Loan Balance of all
Mortgage Loans.
"Preference Amount": As defined in the Policy.
"Premium Amount": With respect to any Payment Date, the product of
(x) one-twelfth of the Premium Percentage and (y) the Certificate Principal
Balance of Class A Certificates on such Payment Date (after taking into account
any distributions of principal on such Payment Date), calculated in accordance
with Section 3.02(c) of the Insurance Agreement.
"Premium Percentage": The percentage defined as such in the
Insurance Agreement.
"Prepaid Installment": With respect to any Mortgage Loan, any
payment of principal and accrued interest thereon received prior to the
scheduled due date for such payment, intended by the Mortgagor as an early
payment thereof and not as a Prepayment.
"Prepayment": Any payment of principal of a Mortgage Loan which is
received by the Master Servicer in advance of the scheduled due date for such
payment (other than the principal portion of any Prepaid Installment). The
proceeds of any Mortgage Insurance Policy which are to be applied as a payment
of principal on the
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related Mortgage Loan shall be deemed to be Prepayments for all purposes of this
Agreement.
"Prepayment Interest Shortfall": The amount defined in Section
8.09(b) hereof.
"Prepayment Penalty": With respect to any Remittance Period, any
prepayment premium, penalty, or charge collected by the Master Servicer from a
Mortgagor in connection with any voluntary prepayment pursuant to the terms of
the related Note, held as a part of the Trust Estate from the Start-Up Date to
the date when the Overcollateralization Amount first equals the Specified
Overcollateralization Amount.
"Preservation Expenses": Expenditures made by the Master Servicer
or any Sub-Servicer in connection with a foreclosed Mortgage Loan prior to the
liquidation thereof, including, without limitation, expenditures for real estate
property taxes, hazard insurance premiums, flood insurance premiums and property
restoration or preservation.
"Principal and Interest Account": Collectively, each principal and
interest account created by the Master Servicer or any Sub-Servicer pursuant to
Section 8.08(a) hereof, or pursuant to any Sub-Servicing Agreement.
"Principal Distribution Amount": With respect to the Certificates,
as of any Payment Date, the sum of (i) the Base Principal Distribution Amount,
(ii) the amount of any Overcollateralization Increase Amount and (iii) the
amount of any Overcollateralization Deficit.
"Principal Remittance Amount": As of any Remittance Date, the sum,
without duplication, of (i) the principal actually collected by the Master
Servicer with respect to Mortgage Loans during the related Remittance Period,
(ii) the Loan Balance of each Mortgage Loan that was purchased from the Trust on
or prior to such Remittance Date, to the extent such Loan Balance was actually
deposited in the Principal and Interest Account, (iii) any Substitution Amounts
relating to principal delivered by the Sponsor and deposited in the Principal
and Interest Account in connection with a substitution of a Mortgage Loan, (iv)
any Net Liquidation Proceeds relating to principal actually collected by the
Master Servicer with respect to such Mortgage Loans during the related
Remittance Period net of amounts allowed to be retained pursuant to Section
8.08(c), and (v) the proceeds of any liquidation of the Trust Estate (to the
extent such proceeds related to principal).
"Prohibited Transaction": Has the meaning set forth from time to
time in the definition thereof contained in Section 860F(a)(2) of the Code (or
any successor statute thereto) and applicable to the Trust.
"Property": The underlying property securing a Mortgage Loan.
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"Prospectus": Such final prospectus dated December 28, 1999, as
supplemented by a prospectus supplement dated August 16, 2000 relating to the
Offered Certificates.
"Purchase Option Period": As defined in Section 9.03(b) hereof.
"Qualified Liquidation": Has the meaning set forth from time to
time in the definition thereof at Section 860F(a)(4) of the Code (or any
successor statute thereto) and applicable to the Trust.
"Qualified Mortgage": Has the meaning set forth from time to time
in the definition thereof at Section 860G(a)(3) of the Code (or any successor
statute thereto) and applicable to the Trust and the Mortgage Loan.
"Qualified Replacement Mortgage": A Mortgage Loan substituted for
another pursuant to Section 3.03, 3.04 or 3.06(b) hereof.
"Rating Agency": Each of Standard & Poor's and Xxxxx'x.
"Realized Loss": As to any Liquidated Loan, the amount, if any, by
which the Loan Balance thereof as of the date of liquidation exceeds the Net
Liquidation Proceeds realized thereon.
"Record Date": With respect to each Payment Date and (x) with
respect to the Certificates (other than the Class A-1 Certificates), the last
Business Day of the calendar month immediately preceding the calendar month in
which such Payment Date occurs and (y) with respect to the Class A-1
Certificates, the Business Day immediately preceding such Payment Date (unless
the Certificates become definitive, in which event the Record Date shall be the
last Business Day of the calendar month immediately preceding the calendar month
in which such Payment Date occurs).
"Redeeming Party": As defined in Section 9.02(a) hereof.
"Reference Banks": Leading banks, selected by the Trustee after
consultation with the Master Servicer, which are engaged in transactions in
Eurodollar deposits in the international Eurocurrency market (1) with an
established place of business in London and (2) which are not controlling,
controlled by, or under common control with, the Sponsor.
"Register": The register maintained by the Trustee in accordance
with Section 5.04 hereof, in which the names of the Owners are set forth.
"Registrar": The Trustee, acting in its capacity as Registrar
appointed pursuant to Section 5.04 hereof, or any duly appointed and eligible
successor thereto.
"Registration Statement": The Registration Statement (No.
333-92669) filed by the Sponsor with the Securities and Exchange Commission,
including all
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amendments thereto and including the Prospectus relating to the Offered
Certificates constituting a part thereof.
"Reimbursement Amount": As defined in the Policy.
"REMIC": A "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code.
"REMIC Provisions": Provisions of the federal income tax law
relating to real estate mortgage investment conduits, which appear at Sections
860A through 860G of the Code, and related provisions, and regulations and
rulings promulgated thereunder, as the foregoing may be in effect from time to
time.
"REMIC Trust": The segregated pool of assets consisting of the
Trust Estate, but excluding the Non-REMIC Estate.
"Remittance Date": Any date on which the Master Servicer is
required to remit monies on deposit in the Principal and Interest Account to the
Trustee, which shall be no later than the 18th day of each month, or, if such
day is not a Business Day, the immediately succeeding Business Day, commencing
in the month following the month in which the Startup Day occurs.
"Remittance Period": The period beginning on the first day of the
calendar month immediately preceding the month in which a Remittance Date occurs
and ending on the last day of such immediately preceding calendar month.
"REO Property": A Property acquired by the Master Servicer or any
Sub-Servicer on behalf of the Trust through foreclosure or grant of a
deed-in-lieu of foreclosure in connection with a defaulted Mortgage Loan.
"Replacement Cut-Off Date": With respect to any Qualified
Replacement Mortgage, the first day of the calendar month in which such
Qualified Replacement Mortgage is transferred and assigned to the Trust.
"Representation Letter": The letters to, or agreements with, the
Depository to effectuate a book entry system with respect to the Class A
Certificates registered in the Register under the nominee name of the
Depository.
"Representative": Bear, Xxxxxxx & Co. Inc., as representative of
the Underwriters.
"Reserve Interest Rate": With respect to any Interest
Determination Date, the rate per annum that the Trustee determines to be either
the arithmetic mean, rounded to the nearest whole multiple of 1/16%, of the
one-month U.S. dollar lending rates which New York City banks selected by the
Trustee are quoting on the Interest Determination Date to the principal London
offices of leading banks in the London interbank market or, in the event that
the Trustee cannot determine the arithmetic mean, the lowest one-month
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U.S. dollar lending rate which New York City banks selected by the Trustee are
quoting on the Interest Determination Date to leading European banks.
"SAS 70": Means the "Statement on Auditing Standards No. 70
Reports on the Processing of Transactions by Service Organizations" as in effect
as of the date hereof, which may be amended from time to time.
"Schedule of Mortgage Loans": The schedule of Mortgage Loans
(which shall include Prepayment Penalties when applicable), attached hereto as
Schedule I as may be further supplemented to include Qualified Replacement
Mortgages. The information contained on each Schedule of Mortgage Loans shall be
delivered to the Trustee in an electronic media satisfactory to the Trustee.
"Summary of Prepayment Penalties": The summary of Prepayment
Penalties, attached hereto as Schedule II as may be further supplemented to
include Qualified Replacement Mortgages.
"Securities Act": The Securities Act of 1933, as amended.
"Senior Lien": With respect to any Junior Mortgage Loan, the
mortgage loan relating to the corresponding Property having a priority lien.
"Servicing Advance": As defined in Section 8.09(c) and Section
8.13 hereof.
"Servicing Fee": As to any Payment Date the product of (x)
one-twelfth of 0.50% and (y) the aggregate Loan Balances of the Mortgage Loans
as of the opening of business on the first day of the Remittance Period
preceding such Payment Date.
"Servicer Termination Loss Trigger": As defined in the Insurance
Agreement.
"Special Advance": Any advance made by the Master Servicer
pursuant to Section 8.09(d) hereof.
"Specified Overcollateralization Amount": As defined in the
Insurance Agreement.
"Sponsor": Advanta Conduit Receivables, Inc., a Nevada
corporation.
"Standard & Poor's": Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc.
"Startup Day": With respect to each of the Upper-Tier REMIC and
the Lower-Tier REMIC, August 22, 2000.
"Step-Up Payment Date": The Payment Date following the calendar
month in which the Initial Clean-Up Call Date occurs.
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"Substitution Amount": In connection with the delivery of any
Qualified Replacement Mortgage, if the outstanding principal amount of such
Qualified Replacement Mortgage as of the applicable Replacement Cut-Off Date is
less than the Loan Balance of the Mortgage Loan being replaced as of such
Replacement Cut-Off Date, an amount equal to such difference together with
accrued and unpaid interest on such amount calculated at the Coupon Rate (net of
the Servicing Fee, if Advanta Mortgage Corp. USA is the Master Servicer) of the
Mortgage Loan being replaced.
"Sub-Servicer": Any Person with whom the Master Servicer has
entered into a Sub-Servicing Agreement and who is either a Master Servicer
Affiliate or satisfies any requirements set forth in Section 8.03 hereof in
respect of the qualification of a Sub-Servicer .
"Sub-Servicing Agreement": The written contract between the Master
Servicer and any Sub-Servicer (other than a Master Servicer Affiliate) relating
to servicing and/or administration of certain Mortgage Loans as permitted by
Section 8.03 hereof.
"Supplemental Interest Amount": With respect to any Payment Date
and the Class A-1 Certificates, the excess, if any, of (x) Current Interest due
on such Certificates calculated using the Formula Pass-Through Rate applicable
to such Payment Date over (y) the interest due on such Class calculated using
the Available Funds Cap Rate applicable to such Payment Date.
"Supplemental Interest Payment Account": The account established
in accordance with Section 7.10(a) hereof and maintained by the Trustee.
"Supplemental Interest Payment Amount Available": As defined in
Section 7.10(b) hereof.
"Supplemental Interest Right": As defined in Section 7.10(e)
hereof.
"Supplemental Interest Shortfall Amount": As defined in Section
7.10(b) hereof.
"Supplemental Interest Shortfall Carry-Forward Amount": With
respect to any Payment Date and the Class A-1 Certificates, the sum of (x) the
amount, if any, by which (i) the sum of (A) the Supplemental Interest Shortfall
Amount as of the immediately preceding Payment Date and (B) any unpaid
Supplemental Interest Shortfalls, as calculated up through the previous Payment
Date and outstanding on such immediately preceding Payment Date, exceeds (ii)
the amount of the actual distributions made on account of each Supplemental
Interest Right on such immediately preceding Payment Date and (y) interest on
such amount at the related Formula Pass-Through Rate calculated on the basis of
the actual number of days in the related Accrual Period.
"Supplemental Interest Trust": The Advanta Supplemental Interest
Trust 2000-2 created pursuant to Section 7.10(a) hereof.
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"Tax Matters Person": The Tax Matters Person appointed pursuant to
Section 11.17 hereof.
"Tax Matters Person Residual Interest": The 100% interest in the
Class R-I Certificate and the Class R-II Certificate, each of which shall be
issued to and held by the Designated Residual Owner or certain affiliates
throughout the term hereof unless another person that is not a Disqualified
Organization shall accept an assignment of such interest and the designation of
Tax Matters Person pursuant to Section 11.17 hereof.
"Termination Notice": As defined in Section 9.03(b) hereof.
"Termination Price": As defined in Section 9.02(a) hereof.
"Transaction Documents": Collectively this Agreement, the
Insurance Agreement, the Underwriting Agreement relating to the Offered
Certificates, the Mortgage Loan Transfer Agreement, any Sub-Servicing Agreement,
the Indemnification Agreement, the Registration Statement relating to the
Offered Certificates and the Certificates.
"Trust": Advanta Mortgage Loan Trust 2000-2, the trust created
under this Agreement.
"Trust Estate": Collectively, all money, instruments and other
property, to the extent such money, instruments and other property are subject
or intended to be held in trust, and in the subtrusts, for the benefit of the
Owners, including all proceeds thereof, including, without limitation, (i) the
Mortgage Loans, (ii) such amounts in all Accounts including principal collected
and interest accrued in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable, including
Eligible Investments, as may from time to time may be held in such Accounts,
except any premium recapture and interest accrued prior to the Initial Cut-Off
Date and each Replacement Cut-Off Date, as applicable and except for net
investment earnings on the Principal and Interest Account, (iii) any Property,
the ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
or any Originator under any Mortgage Insurance Policies, (v) Net Liquidation
Proceeds with respect to any Liquidated Loan, (vi) the rights of the Trustee
under the Certificate Insurance Policy, and (vii) the rights of the Sponsor
against any Originator pursuant to the related Mortgage Loan Transfer Agreement.
"Trustee": Bankers Trust Company of California, N.A., located on
the date of execution of this Agreement at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx
Xxx, Xxxxxxxxxx 00000, a national banking association, not in its individual
capacity but solely as Trustee under this Agreement, and any successor
hereunder.
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"Trustee's Fees": With respect to any Payment Date, the product of
(x) one-twelfth of the Trustee Fee Rate and (y) the aggregate Loan Balance of
the Mortgage Loans as of the beginning of the related Remittance Period.
"Trustee Fee Rate": 0.75 bps per annum.
"Uncertificated Interest": As defined in Section 2.08(b) hereof.
"Underwriters": Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co.
Incorporated and Prudential Securities Incorporated.
"Upper-Tier REMIC": The REMIC established pursuant to Section 2.08
hereof. The assets of the Upper-Tier REMIC shall be the Lower-Tier REMIC Regular
Interests.
"Upper-Tier REMIC Regular Interests": As defined in Section
2.08(c) hereof.
"United States Person": A citizen or resident of the United
States, a corporation, partnership or other entity created or organized in, or
under the laws of, the United States or any political subdivision thereof
(except, in the case of a partnership, to the extent provided in regulations) or
an estate whose income is subject to United States federal income tax regardless
of its source, or a trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust. To the extent prescribed in regulations by the Secretary
of the Treasury, which have not yet been issued, a trust which was in existence
on August 20, 1996 (other than a trust treated as owned by the grantor under
subpart E of part I of subchapter J of chapter 1 of the Code), and which was
treated as a United States person on August 20, 1996 may elect to continue to be
treated as a United States person notwithstanding the previous sentence. The
term "United States" shall have the meaning set forth in Section 7701 of the
Code.
SECTION 1.02 Use of Words and Phrases. "Herein", "hereby",
"hereunder", "hereof", "hereinbefore", "hereinafter" and other equivalent words
refer to this Agreement as a whole and not solely to the particular section of
this Agreement in which any such word is used. The definitions set forth in
Section 1.01 hereof include both the singular and the plural. Whenever used in
this Agreement, any pronoun shall be deemed to include both singular and plural
and to cover all genders.
SECTION 1.03 Captions; Table of Contents. The captions or headings
in this Agreement and the Table of Contents are for convenience only and in no
way define, limit or describe the scope and intent of any provisions of this
Agreement.
SECTION 1.04 Opinions. Each opinion with respect to the validity,
binding nature and enforceability of documents or certificates may be qualified
to the extent that the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in a proceeding or action in
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equity or at law) and may state that no opinion is expressed on the availability
of the remedy of specific enforcement, injunctive relief or any other equitable
remedy. Any opinion required to be furnished by any Person hereunder must be
delivered by counsel upon whose opinion the addressee of such opinion may
reasonably rely, and such opinion may state that it is given in reasonable
reliance upon an opinion of another, a copy of which must be attached,
concerning the laws of a foreign jurisdiction.
ARTICLE II
ESTABLISHMENT AND ORGANIZATION OF THE TRUST
SECTION 2.01 Establishment of the Trust. The parties hereto do
hereby create and establish, pursuant to the laws of the State of New York and
this Agreement, the Trust, which, for convenience, shall be known as "Advanta
Mortgage Loan Trust 2000-2".
SECTION 2.02 Office. The office of the Trust shall be in care of
the Trustee, addressed to Bankers Trust Company of California, N.A., 0000 Xxxx
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, Xxxxxxxxxx 00000, or at such other address as the
Trustee may designate by notice to the Sponsor, the Master Servicer, the Owners
and the Certificate Insurer.
SECTION 2.03 Purposes and Powers. The purpose of the Trust is to
engage in the following activities, and only such activities: (i) the issuance
of the Certificates and the acquiring, owning and holding of Mortgage Loans and
the Trust Estate in connection therewith; (ii) activities that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto or
connected therewith, including the investment of monies in accordance with this
Agreement; and (iii) such other activities as may be required in connection with
conservation of the Trust Estate and distributions to the Owners; provided,
however, that nothing contained herein shall permit the Trustee to take any
action which would result in the loss of REMIC status for the REMIC Trust.
SECTION 2.04 Appointment of the Trustee; Declaration of Trust. The
Sponsor hereby appoints the Trustee as trustee of the Trust effective as of the
Startup Day, to have all the rights, powers and duties set forth herein. The
Trustee hereby acknowledges and accepts such appointment, represents and
warrants its eligibility as of the Startup Day to serve as Trustee pursuant to
Section 10.08 hereof and declares that it will hold the Trust Estate in trust
upon and subject to the conditions set forth herein for the benefit of the
Owners and the Certificate Insurer, as their interests may appear.
SECTION 2.05 Expenses of the Trust. Any expenses of the Trust that
have been reviewed and approved by the Sponsor (which approval shall not be
unreasonably withheld), including the reasonable expenses of the Trustee shall
be paid by the Sponsor to the Trustee or to such other Person to whom such
amounts may be due. Failure by the Sponsor to pay any such fees or other
expenses shall not relieve the Trustee of its obligations hereunder. The Trustee
hereby covenants with the Owners that every material contract or other material
agreement entered into by the Trustee on behalf
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of the Trust shall expressly state therein that no Owner shall be personally
liable in connection with such contract or agreement.
SECTION 2.06 Ownership of the Trust. On the Startup Day the
ownership interests in the Trust shall be transferred as set forth in Section
4.02 hereof, such transfer to be evidenced by sale of the Certificates as
described therein. Thereafter, transfer of any ownership interest shall be
governed by Sections 5.04 and 5.08 hereof.
SECTION 2.07 Situs of the Trust. It is the intention of the
parties hereto that the Trust constitute a trust under the laws of the State of
New York. The Trust will be created in, and all Accounts maintained by the
Trustee on behalf of the Trust will be located in, the State of New York. The
Trust will not have any employees and will not have any real or personal
property (other than property acquired pursuant to Section 8.13 hereof) located
in any state other than in the State of New York and payments will be received
by the Trust only in the State of New York and payments from the Trust will be
made only from the State of New York. The Trust's only office will be at the
office of the Trustee as set forth in Section 2.02 hereof.
SECTION 2.08 Miscellaneous REMIC Provisions. (a) The Trustee shall
elect that each of the Lower-Tier REMIC and the Upper-Tier REMIC shall be
treated as a REMIC under Section 860D of the Code. Any inconsistencies or
ambiguities in this Agreement or in the administration of this Agreement shall
be resolved in a manner that preserves the validity of such REMIC elections. The
assets of the Lower-Tier REMIC shall include the Mortgage Loans, the Accounts
(except for the Non-REMIC Estate), any REO Property, and any proceeds of the
foregoing. The Lower-Tier REMIC Regular Interests (as defined below) shall
constitute the assets of the Upper-Tier REMIC.
(b) The Lower-Tier REMIC will be evidenced by (x) Lower-Tier
Interest 1, Lower-Tier Interest 2, Lower-Tier Interest 3, Lower-Tier Interest 4,
Lower-Tier Interest 5, Lower-Tier Interest 6, Lower-Tier Interest 7 and
Lower-Tier Interest 8 (the "Lower-Tier REMIC Regular Interests"), which will be
uncertificated and non-transferable and are hereby designated as the "regular
interests" in the Lower-Tier REMIC and (y) the Lower-Tier REMIC Residual
Interest, which is hereby designated as the single "residual interest" in the
Lower-Tier REMIC (the Lower-Tier REMIC Regular Interests, together with the
Lower-Tier REMIC Residual Interest, the "Lower-Tier REMIC Interests"). The
Lower-Tier REMIC Regular Interests shall be recorded on the records of the
Lower-Tier REMIC as being issued to and held by the Trustee on behalf of the
Upper-Tier REMIC.
On each Payment Date, principal payments on the Mortgage Loans
shall be allocated 98% to Lower-Tier Interest 8, 1% to Lower-Tier Interest 7,
and 1% among Lower-Tier Interest 1, Lower-Tier Interest 2, Lower-Tier Interest
3, Lower-Tier Interest 4, Lower-Tier Interest 5, and Lower-Tier Interest 6 in
the same proportions as principal is distributed on the Corresponding Class (as
defined below) for each such Lower-Tier Interest.
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Any Overcollateralization Increase Amount will not be paid as
interest to the Lower-Tier REMIC Regular Interests, instead a portion of the
interest payable with respect to Lower-Tier Interest 8 which equals 1% of the
Overcollateralization Increase Amount will be payable as a reduction of the
principal balance of Lower-Tier Interest 1, Lower-Tier Interest 2, Lower-Tier
Interest 3, Lower-Tier Interest 4, Lower-Tier Interest 5, and Lower-Tier
Interest 6 in the same proportion as principal is distributed on the
Corresponding Class for each such Lower-Tier Interest (and will be accrued and
added to principal on Lower-Tier Interest 8 in the same proportion as interest
payable on such Interest is used to reduce principal on other Interests as just
described).
Principal payments on the Mortgage Loans that are attributable to
the Overcollateralization Reduction Amount shall be allocated 1% to Lower-Tier
Interest 7 and 99% to Lower-Tier Interest 8 until paid in full.
Realized Losses shall be applied such that after all distributions
have been made on such Payment Date the principal balances of Lower-Tier
Interest 1, Lower-Tier Interest 2, Lower-Tier Interest 3, Lower-Tier Interest 4,
Lower-Tier Interest 5, and Lower-Tier Interest 6 are each equal to 1% of the
principal balance of the Corresponding Class for each such Lower-Tier Interest,
the principal balance of Lower-Tier Interest 7 is equal to 1% of the sum of the
Loan Balances of the Mortgage Loans, and the principal balance of Lower-Tier
Interest 8 is equal to the sum of the Loan Balances of the Mortgage Loans less
an amount equal to the sum of the principal balances of Lower-Tier Interest 1,
Lower-Tier Interest 2, Lower-Tier Interest 3, Lower-Tier Interest 4, Lower-Tier
Interest 5, Lower-Tier Interest 6 and Lower-Tier Interest 7.
Lower-Tier Interest 1, Lower-Tier Interest 2 Lower-Tier,
Lower-Tier Interest 3, Lower-Tier Interest 4, Lower-Tier Interest 5, Lower-Tier
Interest 6, Lower-Tier Interest 7 and Lower-Tier Interest 8 shall each have a
Pass-Through Rate equal to the Net Weighted Average Coupon Rate (expressed as a
per annum rate on the sum of the Loan Balances). The Lower-Tier REMIC Residual
Interest shall have no principal balance and no Pass-Through Rate and shall be
entitled to only those distributable assets, if any, remaining in the Lower-Tier
REMIC on each Payment Date after all amounts required to be distributed to
Lower-Tier REMIC Regular Interests and applicable Trust expenses have been paid.
The Lower-Tier REMIC Interests will have the following Initial
Balances and, where applicable, Corresponding Classes:
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Lower-Tier REMIC
Interests Initial Balance Corresponding Class
---------------- --------------- -------------------
1 $ 2,588,390 A-1
2 $ 546,460 A-2
3 $ 1,232,500 A-3
4 $ 831,390 A-4
5 $ 648,540 A-5
6 $ 650,000 A-6
7 $ 6,562,961 n/a
8 $ 643,235,949 n/a
Lower-Tier Residual (1) (1)
-------------------
(1) On each Distribution Date, available funds, if any, remaining in the
Lower-Tier REMIC after payments of interest and principal, as designated
above, will be distributed to the Lower-Tier Residual Interest. It is not
expected that there shall be any distributions on the Lower-Tier Residual
Interest.
(c) For federal income tax purposes, the "latest possible maturity
date" for each of the Lower-Tier REMIC Regular Interests is hereby set to be the
Payment Date of August 25, 2030.
(d) The Class X-0, Xxxxx X-0, Class A-3, Class A-4, Class A-5,
Class A-6 and Class B Certificates are hereby designated as "regular interests"
with respect to the Upper-Tier REMIC (the "Upper-Tier REMIC Regular Interests")
and the Class R-II Certificate is hereby designated as the single "residual
interest" with respect to the Upper-Tier REMIC. On each Payment Date, available
funds, if any, remaining in the Upper-Tier REMIC after payments of interest and
principal as designated herein shall be distributed to the Class R-II
Certificates.
(e) The Trust and each REMIC shall, for federal income tax
purposes, maintain their books on a calendar year basis and report income on an
accrual basis.
(f) For federal income tax purposes, the "latest possible maturity
date" for each of the Upper-Tier REMIC Regular Interests is hereby set to be as
follows:
CLASS FINAL SCHEDULED PAYMENT DATES
Final Scheduled
Class Payment Date
----- ---------------
A-1 March 25, 2015
X-0 Xxxxx 00, 0000
X-0 May 25, 2018
A-4 April 25, 2023
X-0 Xxxxxx 00, 0000
X-0 March 25, 2015
B August 25, 2030
ARTICLE III
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REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SPONSOR AND THE MASTER SERVICER;
COVENANT OF SPONSOR TO CONVEY MORTGAGE LOANS
SECTION 3.01 Representations and Warranties of the Sponsor. The
Sponsor hereby represents, warrants and covenants to the Trustee, the
Certificate Insurer and to the Owners as of the Startup Day that:
(a) The Sponsor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Nevada and is in
good standing as a foreign corporation in each jurisdiction in which
the nature of its business, or the properties owned or leased by it
make such qualification necessary. The Sponsor has all requisite
corporate power and authority to own and operate its properties, to
carry out its business as presently conducted and as proposed to be
conducted and to enter into and discharge its obligations under this
Agreement and the other Operative Documents to which it is a party.
(b) The execution and delivery of this Agreement and the other
Operative Documents to which the Sponsor is a party by the Sponsor and
its performance and compliance with the terms of this Agreement and of
the other Operative Documents to which it is a party have been duly
authorized by all necessary corporate action on the part of the Sponsor
and will not violate the Sponsor's Articles of Incorporation or Bylaws
or constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under, or result in the
breach of, any material contract, agreement or other instrument to
which the Sponsor is a party or by which the Sponsor is bound, or
violate any statute or any order, rule or regulation of any court,
governmental agency or body or other tribunal having jurisdiction over
the Sponsor or any of its properties.
(c) This Agreement and the other Operative Documents to which the
Sponsor is a party, assuming due authorization, execution and delivery
by the other parties hereto and thereto, each constitutes a valid,
legal and binding obligation of the Sponsor, enforceable against it in
accordance with the terms hereof and thereof, except as the enforcement
hereof and thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at law).
(d) The Sponsor 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 might have consequences
that would materially and adversely affect the condition (financial or
other) or operations of the Sponsor or its properties or might have
consequences that would materially and adversely affect its performance
hereunder and under the other Operative Documents to which it is a
party.
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(e) No litigation is pending or, to the best of the Sponsor's
knowledge, threatened against the Sponsor which litigation might have
consequences that would prohibit its entering into this Agreement or
any other Operative Document to which it is a party or might have
consequences that would materially and adversely affect its performance
hereunder and under the other Operative Documents to which it is a
party.
(f) No certificate of an officer, statement furnished in writing
or report delivered pursuant to the terms hereof by the Sponsor
contains any untrue statement of a material fact or omits to state any
material fact necessary to make the certificate, statement or report
not misleading.
(g) The statements contained in the Registration Statement which
describe the Sponsor or matters or activities for which the Sponsor is
responsible in accordance with the Operative Documents or which are
attributed to the Sponsor therein are true and correct in all material
respects, and the Registration Statement does not contain any untrue
statement of a material fact with respect to the Sponsor or omit to
state a material fact required to be stated therein or necessary in
order to make the statements contained therein with respect to the
Sponsor not misleading. To the best of the Sponsor's knowledge and
belief, the Registration Statement does not contain any untrue
statement of a material fact required to be stated therein or omit to
state any material fact required to be stated therein or necessary to
make the statements contained therein not misleading.
(h) 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 the Sponsor makes no such representation or warranty), that are
necessary or advisable in connection with the purchase and sale of the
Certificates and the execution and delivery by the Sponsor of the
Operative Documents to which it is a party, have been duly taken, given
or obtained, as the case may be, are in full force and effect on the
date hereof, are not subject and are not reasonably expected to be
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 Operative Documents on the part of the Sponsor
and the performance by the Sponsor of its obligations under this
Agreement and such of the other Operative Documents to which it is a
party.
(i) The transactions contemplated by this Agreement are in the
ordinary course of business of the Sponsor.
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(j) The Sponsor received fair consideration and reasonably
equivalent value in exchange for the sale of the interests in the
Mortgage Loans evidenced by the Certificates.
(k) The Sponsor did not sell any interest in any Mortgage Loan
evidenced by the Certificates with any intent to hinder, delay or
defraud any of its respective creditors.
(l) The Sponsor is solvent and the Sponsor will not be rendered
insolvent as a result of the sale of the Mortgage Loans to the Trust or
the issuance of the Certificates.
(m) It is understood and agreed that the representations and
warranties set forth in this Section 3.01 shall survive delivery of the
Mortgage Loans to the Trust.
SECTION 3.02 Representations and Warranties of the Master
Servicer. The Master Servicer hereby represents, warrants and covenants to the
Trustee, the Certificate Insurer and the Owners as of the Startup Day that:
(a) The Master Servicer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware,
is, and each Sub-Servicer is, in compliance with the laws of each state
in which any Property is located to the extent necessary to enable it
to perform its obligations hereunder and is in good standing as a
foreign corporation in each jurisdiction in which the nature of its
business, or the properties owned or leased by it make such
qualification necessary. The Master Servicer and each Sub-Servicer has
all requisite corporate power and authority to own and operate its
properties, to carry out its business as presently conducted and as
proposed to be conducted and to enter into and discharge its
obligations under this Agreement and the other Operative Documents to
which it is a party. The Master Servicer has, on a consolidated basis
with its ultimate consolidating parent equity of at least $5,000,000,
as determined in accordance with generally accepted accounting
principles or Advanta National Bank has an amount of shareholder's
equity of at least $25,000,000.
(b) The execution and delivery of this Agreement by the Master
Servicer and its performance and compliance with the terms of this
Agreement and the other Operative Documents to which it is a party have
been duly authorized by all necessary corporate action on the part of
the Master Servicer and will not violate the Master Servicer's Articles
of Incorporation or Bylaws or constitute a default (or an event which,
with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Master Servicer is a party or by which
the Master Servicer is bound or violate any statute or any order, rule
or regulation of any court, governmental agency or body or other
tribunal having jurisdiction over the Master Servicer or any of its
properties.
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(c) This Agreement and the other Operative Documents to which the
Master Servicer is a party, assuming due authorization, execution and
delivery by the other parties hereto and thereto, each constitutes a
valid, legal and binding obligation of the Master Servicer, enforceable
against it in accordance with the terms hereof, except as the
enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally and by general principles of equity (whether
considered in a proceeding or action in equity or at law).
(d) The Master Servicer 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 might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of the Master Servicer or its
properties or might have consequences that would materially and
adversely affect its performance hereunder and under the other
Operative Documents to which the Master Servicer is a party.
(e) No litigation is pending or, to the best of the Master
Servicer's knowledge, threatened against the Master Servicer which
litigation might have consequences that would prohibit its entering
into this Agreement or any other Operative Document to which it is a
party or might have consequences that would materially and adversely
affect its performance hereunder and under the other Operative
Documents to which the Master Servicer is a party.
(f) No certificate of an officer, statement furnished in writing
or report delivered pursuant to the terms hereof by the Master Servicer
contains any untrue statement of a material fact or omits to state any
material fact necessary to make the certificate, statement or report
not misleading.
(g) The statements contained in the Registration Statement which
describe the Master Servicer or matters or activities for which the
Master Servicer is responsible in accordance with the Operative
Documents or which are attributed to the Master Servicer therein are
true and correct in all material respects, and the Registration
Statement does not contain any untrue statement of a material fact with
respect to the Master Servicer or omit to state a material fact
required to be stated therein or necessary to make the statements
contained therein with respect to the Master Servicer not misleading.
To the best of the Master Servicer's knowledge and belief, the
Registration Statement does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements contained therein not
misleading.
(h) 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
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to which the Master Servicer makes no such representation or warranty),
that are necessary or advisable in connection with the execution and
delivery by the Master Servicer of the Operative Documents to which it
is a party, have been duly taken, given or obtained, as the case may
be, are in full force and effect on the date hereof, are not reasonably
expected to be 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 Operative
Documents on the part of the Master Servicer and the performance by the
Master Servicer of its obligations under this Agreement and such of the
other Operative Documents to which it is a party.
(i) The collection practices used by the Master Servicer with
respect to the Mortgage Loans directly serviced by it have been, in all
material respects, legal, proper, prudent and customary in the mortgage
loan servicing business.
(j) The transactions contemplated by this Agreement are in the
ordinary course of business of the Master Servicer.
(k) The terms of each existing Sub-Servicing Agreement are
acceptable to the Master Servicer and any new Sub-Servicing Agreements
or Sub-Servicers will comply with the provisions of Section 8.03.
It is understood and agreed that the representations and
warranties set forth in this Section 3.02 shall survive delivery of the Mortgage
Loans to the Trustee.
Upon discovery by any of the Originators, the Master Servicer, the
Sponsor, any Sub-Servicer, the Certificate Insurer or the Trustee of a breach of
any of the representations and warranties set forth in this Section 3.02 which
materially and adversely affects the interests of the Owners or of the
Certificate Insurer, the party discovering such breach shall give prompt written
notice to the other parties. Within 30 days of its discovery or its receipt of
notice of breach, the Master Servicer shall cure such breach in all material
respects and, upon the Master Servicer's continued failure to cure such breach,
may thereafter be removed by the Trustee or the Certificate Insurer pursuant to
Section 8.20 hereof; provided, however, that if the Master Servicer can
demonstrate to the reasonable satisfaction of the Certificate Insurer and the
Trustee that it is diligently pursuing remedial action, then the cure period may
be extended with the written approval of the Certificate Insurer and the
Trustee.
SECTION 3.03 Representations and Warranties of the Sponsor with
Respect to the Mortgage Loans. (a) The Sponsor makes the following
representations and warranties as to the Mortgage Loans on which the Certificate
Insurer relies and the Trustee relies in accepting the Mortgage Loans in trust
and executing and authenticating the Certificates. Such representations and
warranties speak as of the Startup Day with respect to the Initial Mortgage
Loans, or as of the date upon which any Qualified
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Replacement Mortgage is added to the Trust, but shall survive the sale,
transfer, and assignment of the Mortgage Loans to the Trustee:
(i) The information with respect to each Mortgage Loan set forth
in the Schedule of Mortgage Loans and the Summary of Prepayment
Penalties is true and correct as of the Initial Cut-Off Date or the
Replacement Cut-Off Date, as the case may be;
(ii) All of the original or certified documentation set forth in
Section 3.05(c) (including all material documents related thereto) with
respect to each Mortgage Loan has been or will be delivered to the
Trustee no later than the Startup Day or the date upon which any
Qualified Replacement Mortgage is added to the Trust, as the case may
be, or as otherwise provided in Section 3.05(c);
(iii) Each Mortgage Loan is being serviced by the Master Servicer
or Master Servicer Affiliate;
(iv) As of the Initial Cut-Off Date, no more than 1.43% of the
aggregate principal balances of the Initial Mortgage Loans are 30-59
days Delinquent and no Initial Mortgage Loan is 60 or more days'
Delinquent;
(v) All of the Mortgage Loans conform, in all material respects,
to the description thereof set forth in the Registration Statement;
(vi) The credit underwriting guidelines applicable to each
Mortgage Loan conform in all material respects to the description
thereof set forth in the Prospectus; and
(vii) Each Mortgage Loan is a Qualified Mortgage.
(b) The Sponsor hereby assigns to the Trustee for the benefit of
the Owners of the Certificates and the Certificate Insurer (so long as a
Certificate Insurer Default had not occurred and is continuing) all of its
right, title and interest in respect of the Mortgage Loan Transfer Agreement.
Insofar as the Mortgage Loan Transfer Agreement provides for representations and
warranties made by the related Originator in respect of a Mortgage Loan and any
remedies provided thereunder for any breach of such representations and
warranties, such right, title and interest may be enforced by the Master
Servicer or by the Trustee on behalf of the Owners and the Certificate Insurer.
Upon the discovery by the Sponsor, the Master Servicer, the Certificate Insurer
or the Trustee of a breach of any of the representations and warranties made in
the Mortgage Loan Transfer Agreement in respect of any Mortgage Loan which
materially and adversely affects the interests of the Owners or of the
Certificate Insurer in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties. The Master Servicer shall
promptly notify the related Originator of such breach and request that such
Originator cure such breach or take the actions described in Section 3.04(b)
hereof within the time periods required thereby, and if such Originator does not
cure such breach in all material respects, the Sponsor shall cure such breach or
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take such actions. The obligations of the Sponsor or Master Servicer, as the
case may be, set forth herein with respect to any Mortgage Loan as to which such
a breach has occurred and is continuing shall constitute the sole obligations of
the Master Servicer and of the Sponsor in respect of such breach.
SECTION 3.04 Covenants of Sponsor to Take Certain Actions with
Respect to the Mortgage Loans in Certain Situations. (a) With the provisos and
limitations as to remedies set forth in this Section 3.04, upon the discovery by
any Originator, the Sponsor, the Master Servicer, the Certificate Insurer, any
Sub-Servicer or the Trustee that the representations and warranties set forth in
Section 3.03 of this Agreement or in the Mortgage Loan Transfer Agreement were
untrue in any material respect as of the Startup Day and such breaches of the
representations and warranties materially and adversely affect the interests of
the Owners or of the Certificate Insurer, the party discovering such breach
shall give prompt written notice to the other parties.
The Sponsor acknowledges that a breach of any representation or
warranty (x) relating to marketability of title sufficient to transfer
unencumbered title to a Mortgage Loan, (y) relating to enforceability of the
Mortgage Loan against the related Mortgagor or Property or (z) set forth in
clause (vii) of Section 3.03(a) above constitutes breach of a representation or
warranty which materially and adversely affects the interests of the Owners or
of the Certificate Insurer in such Mortgage Loan.
(b) Upon the earliest to occur of the Sponsor's discovery, its
receipt of notice of breach from any one of the other parties hereto or from the
Certificate Insurer or such time as a breach of any representation and warranty
materially and adversely affects the interests of the Owners or of the
Certificate Insurer as set forth above, the Sponsor hereby covenants and
warrants that it shall promptly cure such breach in all material respects or it
shall (or shall cause an affiliate of the Sponsor or an Originator to), subject
to the further requirements of this paragraph, on the second Remittance Date
next succeeding such discovery or receipt of notice (i) substitute in lieu of
each Mortgage Loan which has given rise to the requirement for action by the
Sponsor a Qualified Replacement Mortgage and deliver the Substitution Amount
applicable thereto, together with the aggregate amount of all Delinquency
Advances and Servicing Advances theretofore made with respect to such Mortgage
Loan and not previously reimbursed to the Master Servicer for deposit in the
Principal and Interest Account or (ii) purchase such Mortgage Loan from the
REMIC Trust at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be delivered to the Master Servicer for deposit in the
Principal and Interest Account. In connection with any such proposed purchase or
substitution, the Sponsor at its expense, shall cause to be delivered to the
Trustee and the Certificate Insurer an opinion of counsel experienced in federal
income tax matters stating whether or not such a proposed purchase or
substitution would constitute a Prohibited Transaction for the REMIC Trust or
would jeopardize the status of the REMIC Trust as a REMIC, and the Sponsor shall
only be required to take either such action to the extent such action would not
constitute a Prohibited Transaction for the REMIC Trust or would not jeopardize
the status of the REMIC Trust as a REMIC. Any required purchase or substitution,
if delayed by the absence of such opinion shall nonetheless occur upon the
earlier of (i) the occurrence of a default or imminent default
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with respect to the Mortgage Loan, (ii) the delivery of such opinion or (iii) at
the direction of the Control Party. It is understood and agreed that the
obligation of the Sponsor to cure the defect, or substitute for, or purchase any
Mortgage Loan as to which a representation or warranty is untrue in any material
respect and has not been remedied shall constitute the sole remedy available to
the Owners, the Trustee and the Certificate Insurer.
(c) In the event that any Qualified Replacement Mortgage is
delivered by an Originator or by the Sponsor (or by an affiliate of the Sponsor,
as the case may be) to the Trust pursuant to Sections 3.03, 3.04 or 3.06 hereof,
the related Originator and the Sponsor shall be obligated to take the actions
described in Section 3.04(b) with respect to such Qualified Replacement Mortgage
upon the discovery by any of the Owners, the Sponsor, the Master Servicer, the
Certificate Insurer, any Sub-Servicer or the Trustee that the representations
and warranties set forth in the Mortgage Loan Transfer Agreement or in Section
3.03 above are untrue in any material respect on the date such Qualified
Replacement Mortgage is conveyed to the Trust such that the interests of the
Owners or the Certificate Insurer in the related Qualified Replacement Mortgage
are materially and adversely affected.
(d) In the event that any Qualified Replacement Mortgage is
delivered to the Trust, such Qualified Replacement Mortgage must be a Mortgage
Loan which: (i) bears a fixed rate of interest, (ii) has a Coupon Rate at least
equal to the Coupon Rate of the Mortgage Loan being replaced, (iii) is of the
same or better property type and the same or better occupancy status as the
replaced Mortgage Loan, (iv) shall be of the same or better credit quality
classification (determined in accordance with the Originators' credit
underwriting guidelines) as the Mortgage Loan being replaced, (v) shall mature
no later than August 25, 2030, (vi) has a Combined Loan-to-Value Ratio as of the
Replacement Cut-Off Date no higher than the Combined Loan-to-Value Ratio of the
replaced Mortgage Loan at such time, (vii) has a Loan Balance as of the related
Replacement Cut-Off Date equal to or less than the Loan Balance of the replaced
Mortgage Loans as of such Replacement Cut-Off Date, (viii) satisfies all of the
representations and warranties set forth in Section 3.03 and the criteria set
forth from time to time in the definition thereof at Section 860G(a)(4) of the
Code (or any successor statute thereto) and applicable to the Trust, all as
evidenced by an Officer's Certificate of the Sponsor delivered to the
Certificate Insurer, the Sponsor and the Trustee prior to any such substitution
and (ix) is a valid First Mortgage Loan if the Mortgage Loan to be substituted
for is a valid First Mortgage Loan or, Junior Mortgage Loan of equal or better
priority if the Mortgage Loan to be substituted for is a Junior Mortgage Loan.
In the event that one or more mortgage loans are proposed to be substituted for
one or more mortgage loans, the Certificate Insurer may allow the foregoing
tests to be met on a weighted average basis with respect to the Mortgage Loans
only or other aggregate basis acceptable to the Certificate Insurer, as
evidenced by a written consent delivered to the Trustee by the Certificate
Insurer, except that the requirement of clause (viii) of this Section 3.04(d)
must be satisfied as to each Qualified Replacement Mortgage.
(e) As to each Mortgage Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage therefor, the Trustee
will
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transfer, sell, assign, set over and otherwise convey without recourse, all of
its right, title and interest in and to such released Mortgage Loan and all the
Trust's right, title and interest to principal collected and interest accruing
on such released Mortgage Loan on and after the applicable Replacement Cut-Off
Date; provided, however, that the Trust shall reserve and retain all right,
title and interest in and to payments of principal collected and accrued
interest on such released Mortgage Loan prior to the applicable Replacement
Cut-Off Date.
(f) In connection with any transfer and assignment of a Qualified
Replacement Mortgage to the Trustee on behalf of the Trust, the Sponsor agrees
to cause to be delivered to the Trustee the items described in Section 3.05(c)
on the date of such transfer and assignment or, if a later delivery time is
permitted by Section 3.05(c), then no later than such later delivery time.
(g) As to each Mortgage Loan released from the Trust in connection
with the conveyance of a Qualified Replacement Mortgage the Trustee shall
deliver, on the date of conveyance of such Qualified Replacement Mortgage, on
the order of the Sponsor (i) the original Note, or the certified copy, relating
thereto, endorsed without recourse, to the Sponsor and (ii) such other documents
as constituted the Mortgage File with respect thereto.
(h) The Sponsor shall, in connection with the delivery of each
Qualified Replacement Mortgage to the Trustee, provide the Trustee with the
information set forth in the Schedules of Mortgage Loans with respect to such
Qualified Replacement Mortgage.
(i) It is understood and agreed that the covenants set forth in
this Section 3.04 shall survive delivery of the respective Mortgage Loans
(including Qualified Replacement Mortgages) to the Trustee.
SECTION 3.05 Conveyance of the Mortgage Loans. (a) The Sponsor,
concurrently with the execution and delivery hereof, hereby transfers, sells,
assigns, sets over and otherwise conveys, or shall request or cause to be
transferred, sold, assigned, set over and otherwise conveyed, without recourse,
for good and valuable consideration, to the Trustee, all right, title and
interest of the Sponsor in and to each Initial Mortgage Loan, including all
right, title and interest in and to principal collected and interest accruing on
each such Initial Mortgage Loan on and after the Initial Cut-Off Date and all
right, title and interest in and to all Mortgage Insurance Policies and any
other assets included or to be included in the Trust for the benefit of Owners
and the Certificate Insurer. The transfer of the Initial Mortgage Loans set
forth on the Schedule of Mortgage Loans to the Trustee is absolute and is
intended by the Owners and all parties hereto to be treated as a sale by the
Sponsor.
(b) The Sponsor agrees to take or cause to be taken such actions
and execute such documents as are necessary to perfect and protect the Owners'
and the Certificate Insurer's interests in each Mortgage Loan and the proceeds
thereof (including, without limitation, the filing of all necessary continuation
statements for the UCC-1
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financing statements filed in the appropriate jurisdictions (which shall have
been filed within 90 days of the Startup Day, as the case may be) and to file in
the appropriate jurisdictions any amendments to UCC-1 financing statements
required to reflect a change in the name or corporate structure of the debtor or
the filing of any additional UCC-1 financing statements due to a change in the
principal office or jurisdiction of incorporation of the debtor (within 90 days
of any event necessitating such filing).
(c) In connection with the transfer and assignment of the Mortgage
Loans, the Sponsor agrees to:
(i) cause to be delivered to the Trustee, without recourse, no
later than the Startup Day or date on which a Qualified Replacement
Mortgage is transferred, as applicable, the items listed in the
definition of "Mortgage Files"; provided, that the assignments of
mortgage listed in such definition shall be delivered to the Trustee
within 75 Business Days of the Startup Day or date on which a Qualified
Replacement Mortgage is transferred, as applicable.
(ii) cause, within 75 Business Days following the Startup Day or
date on which a Qualified Replacement Mortgage is transferred, as
applicable, the assignments of Mortgage to be submitted for recording
in the appropriate jurisdictions wherein such recordation is necessary
to perfect the lien thereof as against creditors of or purchasers from
the related Originator to the Trustee; provided, however, that, for
administrative convenience and facilitation of servicing and to reduce
closing costs, assignments of mortgage shall not be required to be
submitted for recording with respect to any Mortgage Loan only if the
Trustee, the Certificate Insurer and each Rating Agency has received an
Opinion of Counsel, satisfactory in form and substance to the
Certificate Insurer and to each Rating Agency, to the effect that the
recordation of such assignments in any specific jurisdiction is not
necessary to protect the Trustee's interest in the related Mortgage.
All recording required pursuant to this Section 3.05 shall be
accomplished at the expense of the Originators or of the Sponsor.
Notwithstanding anything to the contrary contained in this Section 3.05, in
those instances where the public recording office retains the original Mortgage,
the assignment of a Mortgage or the intervening assignments of the Mortgage
after it has been recorded, the Sponsor shall be deemed to have satisfied its
obligations hereunder upon delivery to the Trustee of a copy of such Mortgage,
such assignment or assignments of Mortgage certified by the public recording
office to be a true copy of the recorded original thereof.
Copies of all Mortgage assignments received by the Trustee shall
be kept in the related Mortgage File.
Such assignments of mortgage shall, in addition to the
requirements specified in the definition of "Mortgage Files", be in recordable
form. On or before the Startup Day or date on which a Qualified Replacement
Mortgage is transferred, as applicable, the Sponsor shall deliver to the Trustee
an original executed power of
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attorney, from the current recordholders of the related Mortgage substantially
in the form of Exhibit H, authorizing the Master Servicer on behalf of the
Trustee to record the assignments of mortgage as provided in clause (ii) of this
Section 3.05(c). Pursuant to such power of attorney, the Trustee also may
execute a new assignment of mortgage for any Mortgage Loan if the original
assignment of mortgage delivered by the Sponsor to the Trustee is not in
recordable form at such time as the assignment of mortgage is to be recorded by
the Trustee.
(d) [Reserved]
(e) The Sponsor (or any affiliate of the Sponsor) shall transfer,
sell, assign, set over and otherwise convey without recourse, to the Trustee all
right, title and interest of the Sponsor (or of such affiliate) in and to any
Qualified Replacement Mortgage delivered to the Trustee pursuant to Sections
3.03, 3.04 or 3.06 hereof and all its right, title and interest to principal
collected and interest accruing on such Qualified Replacement Mortgage on and
after the applicable Replacement Cut-Off Date; provided, however, that the
Sponsor (or such affiliate) shall reserve and retain all right, title and
interest in and to payments of principal due and interest accrued on such
Qualified Replacement Mortgage prior to the applicable Replacement Cut-Off Date.
(f) If a Mortgage assignment is lost during the process of
recording, or is returned from the recorder's office unrecorded due to a defect
therein, the Sponsor shall prepare a substitute assignment or cure such defect,
as the case may be, and thereafter cause each such assignment to be duly
recorded.
(g) The Sponsor shall cause to be reflected on the applicable
records that the Mortgage Loans have been sold to the Trust.
To the extent that the ratings, if any, then assigned to the
unsecured debt of the Sponsor or of the Sponsor's ultimate corporate parent are
satisfactory to the Control Party, Standard & Poor's and Xxxxx'x, then any of
the Document Delivery Requirements described above may be waived by an
instrument signed by the Control Party, Standard & Poor's and Xxxxx'x (or any
documents theretofore delivered to the Trustee returned to the Sponsor) on such
terms and subject to such conditions as the Control Party, Standard & Poor's and
Xxxxx'x may permit.
(h) It is the express intent of the parties hereto that the
conveyance of the Mortgage Loans (including all other rights and properties
described in Section 3.05(a) above) to the Trust be construed as a sale of the
Mortgage Loans to the Trust. It is, further, not the intent of the parties that
such conveyance be deemed a pledge of the Mortgage Loans to the Trust to secure
a debt or other obligation of the Sponsor or any of its assignors. However, in
the event and to the extent that, notwithstanding the intent of the parties
hereto, any or all of the Mortgage Loans (including the other rights and
properties described in Section 3.05(a) above) are held to be property of the
Sponsor or any of its assignors, then:
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(i) this Agreement shall also be deemed to be a security agreement
within the meaning of Article 9 of the New York UCC;
(ii) the conveyance provided for herein shall be deemed to be a
grant by the Sponsor to the Trust of a first priority security interest in
all of the Sponsor's right, title and interest in and to the Mortgage
Loans (including the other rights and properties described in Section
3.05(a) above) and all amounts payable to the holder of the Mortgage Loans
and/or such rights or properties in accordance with the terms thereof and
all proceeds of the conversion, voluntary or involuntary, of the foregoing
into cash, instruments, securities or other property, including all
amounts from time to time held or invested in any Account, whether in the
form of cash, instruments, securities or other property;
(iii) the possession by the Trustee or its bailees or agents of
items of property that constitute instruments, money, negotiable documents
or chattel paper shall be deemed to be "possession by the secured party"
for purposes of perfecting the security interest pursuant to Section 9-305
of the New York UCC;
(iv) notifications to persons holding such property, and
acknowledgments, receipts or confirmations from persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts
or confirmations from, financial intermediaries, bailees or agents (as
applicable) of the Trustee for the purpose of perfecting such security
interest under applicable law; and
(v) the obligations secured by the first priority security interest
described in clause (iii) above shall be deemed to include any and all
obligations of the Trust to pay the principal of and interest on the
Certificates to the Owners and to pay the fees, expenses and other amounts
required to be paid to the Master Servicer, the Trustee, the Certificate
Insurer and the Owners, all in accordance with and otherwise subject to
the Operative Documents.
(i) Any assignment or other transfer of the interest of the Trustee
under any provision hereof shall also be deemed to be an assignment of any
security interest created hereby. Each of the Sponsor and the Master Servicer
shall, to the extent consistent with this Agreement, take such actions as may be
necessary to ensure that, if this Agreement were deemed to create a security
interest in the Mortgage Loans, such security interest would be deemed to be a
perfected security interest of first priority under applicable law and would be
maintained as such throughout the terms of this Agreement. The Sponsor also
covenants not to pledge, assign or grant any security interest to any third
party in any Mortgage Loan conveyed to the Trustee hereunder.
(j) Upon the Trustee's or the Certificate Insurer's request, the
Sponsor shall perform (or cause to be performed) such further acts and execute,
acknowledge and deliver (or cause to be executed, acknowledged and delivered) to
the Trustee such further documents as the Trustee or the Certificate Insurer
shall deem necessary or advisable in order to evidence, establish, maintain,
protect, enforce or defend its rights in and to the Mortgage Loans and other
rights and properties transferred hereunder or otherwise to
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carry out the intent and accomplish the purposes of this Agreement (including
UCC-1 financing statements naming the Sponsor as debtor and the Trustee as
secured party and any continuation statements relating thereto).
SECTION 3.06 Acceptance by Trustee; Certain Substitutions of
Mortgage Loans; Certification by Trustee. (a) The Trustee agrees to execute and
deliver on the Startup Day and any day on which a Qualified Replacement Mortgage
is conveyed to the Trust an acknowledgment of receipt in the form attached as
Exhibit D hereto of the Mortgage Files delivered by the Sponsor, and declares
that it will hold such documents and any amendments, replacement or supplements
thereto, as well as any other assets included in the definition of Trust Estate
and delivered to the Trustee, as Trustee in trust upon and subject to the
conditions set forth herein for the benefit of the Owners and the Certificate
Insurer. On or before the tenth Business Day after the Startup Day and any day
on which a Qualified Replacement Mortgage is conveyed to the Trust, the Trustee
shall execute and deliver to the Certificate Insurer and the Master Servicer an
acknowledgment of receipt of the original Notes for each Mortgage Loan.
The Trustee further agrees to review any documents delivered by the
Sponsor within 90 days after the Startup Day (or within 90 days with respect to
any Qualified Replacement Mortgage after the assignment thereof) and to deliver
to the Sponsor, the Certificate Insurer and the Master Servicer a Certification
in the form attached as Exhibit E hereto. The Trustee shall be under no duty or
obligation to inspect, review or examine any such documents, instruments,
certificates or other papers to determine that they are genuine, enforceable, or
appropriate for the represented purpose or that they are other than what they
purport to be on their face, nor shall the Trustee be under any duty to
determine independently whether there are any intervening assignments or
assumption or modification agreements with respect to any Mortgage Loan.
(b) If the Trustee during such 90-day period finds any document
constituting a part of a Mortgage File which (i) is not properly executed, (ii)
has not been received within the specified period, (iii) is unrelated to the
Mortgage Loans identified in the Schedules of Mortgage Loans, or (iv) that any
Mortgage Loan does not conform in a material respect to the description thereof
as set forth in the Schedules of Mortgage Loans, the Trustee shall promptly so
notify the Sponsor and the Certificate Insurer. In performing any such review,
the Trustee may conclusively rely on the Sponsor as to the purported genuineness
of any such document and any signature thereon. The Sponsor agrees to use
reasonable efforts to remedy a material defect in a document constituting part
of a Mortgage File of which it is so notified by the Trustee. If, however,
within 60 days after the Trustee's notice respecting such defect the Sponsor has
not remedied or caused to be remedied the defect and the defect materially and
adversely affects the interest of the Owners or of the Certificate Insurer in
the related Mortgage Loan, the Sponsor will (or will cause the related
Originator or an affiliate of the Sponsor to) on the next succeeding Remittance
Date (i) substitute in lieu of such Mortgage Loan a Qualified Replacement
Mortgage and, deliver the Substitution Amount or (ii) purchase such Mortgage
Loan at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be delivered to the Master Servicer for deposit in the
Principal and
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Interest Account. In connection with any such proposed purchase or substitution
the Sponsor shall cause at the Sponsor's expense to be delivered to the Trustee
and the Certificate Insurer an opinion of counsel experienced in federal income
tax matters stating whether or not such a proposed purchase or substitution
would constitute a Prohibited Transaction for either the Upper-Tier REMIC or the
Lower-Tier REMIC or would jeopardize the status of either the Upper-Tier REMIC
or the Lower-Tier REMIC as a REMIC, and the Sponsor shall only be required to
take either such action to the extent such action would not constitute a
Prohibited Transaction for either the Upper-Tier REMIC or the Lower-Tier REMIC
or would not jeopardize the status of either the Upper-Tier REMIC or the
Lower-Tier as a REMIC. Any required purchase or substitution, if delayed by the
absence of such opinion shall nonetheless occur upon the earlier of (i) the
occurrence of a default or imminent default with respect to the Mortgage Loan or
(ii) the delivery of such opinion or (iii) at the direction of the Control
Party.
Upon receipt of any Qualified Replacement Mortgage or of written
notification signed by a Servicing Officer to the effect that the Loan Purchase
Price in respect of such Mortgage Loan has been deposited into the Principal and
Interest Account, then as promptly as practicable, the Trustee shall execute
such documents and instruments of transfer presented by the Sponsor, in each
case without recourse, representation or warranty, and take such other actions
as shall reasonably be requested by the Sponsor to effect such transfer by the
Trust of such Mortgage Loan pursuant to this Section 3.06. It is understood and
agreed that the obligation of the Sponsor to accept a transfer of a Mortgage
Loan and to either convey a Qualified Replacement Mortgage or to make a deposit
of any related Loan Purchase Price into the Principal and Interest Account shall
constitute the sole remedy respecting such defect available to Owners, the
Trustee and the Certificate Insurer against the Sponsor.
The Sponsor, promptly following the transfer of a Mortgage Loan from
or to the Trust pursuant to this Section 3.06, shall deliver an amended Schedule
of Mortgage Loans to the Trustee and the Certificate Insurer and shall make
appropriate entries in its general account records to reflect such transfer. The
Master Servicer shall, following such retransfer, appropriately xxxx its records
to indicate that it is no longer servicing such Mortgage Loan on behalf of the
Trust.
(c) As to any Qualified Replacement Mortgage, the Sponsor shall
deliver to the Trustee with respect to such Qualified Replacement Mortgage such
documents and agreements as are required to be held by the Trustee in accordance
with this Section 3.06. For any Remittance Period during which the Sponsor
substitutes one or more Qualified Replacement Mortgages, the Master Servicer
shall determine the Substitution Amount, which amount shall be deposited by the
Sponsor in the Principal and Interest Account at the time of substitution. All
amounts received in respect of the Qualified Replacement Mortgage during the
Remittance Period in which the circumstances giving rise to such substitution
occur shall not be a part of the Trust Estate and shall not be deposited by the
Master Servicer in the Principal
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and Interest Account. All amounts received by the Master Servicer during the
Remittance Period in which the circumstances giving rise to such substitution
occur in respect of any Mortgage Loan so removed by the Trust Estate shall be
deposited by the Master Servicer in the Principal and Interest Account. Upon
such substitution, each Qualified Replacement Mortgage shall be subject to the
terms of this Agreement in all respects, and the Sponsor shall be deemed (i) to
have made with respect to such Qualified Replacement Mortgage, as of the date of
substitution, the covenants, representations and warranties set forth in Section
3.03 and (ii) to have certified that such Mortgage Loan(s) is/are Qualified
Replacement Mortgage(s).
SECTION 3.07 Cooperation Procedures. The Sponsor, the Master
Servicer and the Trustee covenant to provide each other and to the Certificate
Insurer with all data and information required to be provided by them hereunder
at the times required hereunder, and additionally covenant reasonably to
cooperate with each other in providing any additional information required by
any of them in connection with their respective duties hereunder.
ARTICLE IV
ISSUANCE AND SALE OF CERTIFICATES
SECTION 4.01 Issuance of Certificates. On the Startup Day, upon the
Trustee's receipt from the Sponsor of an executed Delivery Order in the form set
forth as Exhibit F hereto, the Trustee shall execute, authenticate and deliver
the Certificates on behalf of the Trust in accordance with the directions set
forth in such Delivery Order.
SECTION 4.02 Sale of Certificates. At 11 a.m. New York City time on
the Startup Day, at the offices of Xxxxx Xxxxxxxxxx LLP, 1301 Avenue of the
Americas, New York, New York, the Sponsor will sell and convey the Initial
Mortgage Loans and the money, instruments and other property related thereto to
the Trustee on behalf of the Trust, and the Trustee will (i) deliver to the
Representative, the Offered Certificates with an aggregate Percentage Interest
in each Class equal to 100%, registered in the name of Cede & Co. or in such
other names as the Representative shall direct, against payment of the purchase
price thereof by wire transfer of immediately available funds to the Trustee;
(ii) deliver to the Trustee, the Class B Certificate with an aggregate
Percentage Interest equal to 100%, registered in the name of the Trustee on
behalf of the Supplemental Interest Trust; (iii) deliver to the Sponsor, the
Class BS Certificates, the Class R-I Certificates and the Class R-II
Certificates in each case with an aggregate Percentage Interest equal to 100%,
registered in such names as the Sponsor shall request; and (iv) deliver to the
Trustee on behalf of the Owners of the Supplemental Interest Right, the
certificate representing the Supplemental Interest Right. Upon receipt of the
proceeds of the sale of the Certificates, the Trustee shall, from the proceeds
of the sale of the Certificates, pay other fees and expenses identified by the
Sponsor and pay to the Sponsor the balance after deducting such amounts.
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ARTICLE V
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 5.01 Terms. (a) The Certificates are pass-through securities
having the rights described therein and herein. Notwithstanding references
herein or therein with respect to the Certificates as to "principal" and
"interest" no debt of any Person is represented thereby, nor are the
Certificates or the underlying Notes guaranteed by any Person (except that the
Notes may be recourse to the Mortgagors thereof to the extent permitted by law
and except for the rights of the Trustee with respect to the Certificate
Insurance Policy). Distributions on the Certificates are payable solely from
payments received on or with respect to the Mortgage Loans (other than the
Servicing Fees), monies in the Principal and Interest Account (net of investment
earnings) and, except as otherwise provided herein, from earnings on monies and
the proceeds of property held as a part of the Trust Estate and from Insured
Payments. Each Certificate entitles the Owner thereof to receive monthly, on
each Payment Date, in order of priority of distributions with respect to such
Class of Certificates, a specified portion of such payments with respect to the
Mortgage Loans and Insured Payments, pro rata in accordance with such Owner's
Percentage Interest and, with respect to the Class A-1 Certificates, certain
amounts payable from the Supplemental Interest Payment Account.
(b) Each Owner is required, and hereby agrees, to return to the
Trustee any Certificate with respect to which the Trustee has made the final
distribution due thereon. Any such Certificate as to which the Trustee has made
the final distribution thereon shall be deemed cancelled and shall no longer be
Outstanding for any purpose of this Agreement, whether or not such Certificate
is ever returned to the Trustee.
SECTION 5.02 Forms. The Certificates shall be in substantially the
forms set forth in Exhibit A and Exhibit B hereof with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement or as may in the Sponsor's judgment be necessary,
appropriate or convenient to comply, or facilitate compliance, with applicable
laws, and may have such letters, numbers or other marks of identification and
such legends or endorsements placed thereon as may be required to comply with
the rules of any applicable securities laws or as may, consistently herewith, be
determined by the Authorized Officer of the Sponsor executing such Delivery
Order, as evidenced by his execution thereof.
SECTION 5.03 Execution, Authentication and Delivery. (a) Each
Certificate shall be executed on behalf of the Trust, by the manual signature of
one of the Trustee's Authorized Officers and shall be authenticated by the
manual signature of one of the Trustee's Authorized Officers.
(b) Certificates bearing the manual signature of individuals who
were at any time the proper officers of the Trustee shall, upon proper
authentication by the Trustee, bind the Trust, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
execution and delivery of such Certificates or did not hold such offices at the
date of authentication of such Certificates.
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(c) The initial Certificates shall be dated as of the Startup Day
and delivered at the Closing to the parties specified in Section 4.02 hereof.
(d) No Certificate shall be valid until executed and authenticated
as set forth above.
SECTION 5.04 Registration and Transfer of Certificates. (a) The
Trustee, as registrar, shall cause to be kept a register (the "Register") in
which, subject to such reasonable regulations as it may prescribe, the Trustee
shall provide for the registration of Certificates and the registration of
transfer of Certificates. The Trustee is hereby appointed registrar for the
purpose of registering Certificates and transfers of Certificates as herein
provided. The Owners and the Certificate Insurer shall have the right to inspect
the Register at all reasonable times and to obtain copies thereof.
(b) Subject to the provisions of Section 5.08 hereof, upon surrender
for registration of transfer of any Certificate at the office designated as the
location of the Register, the Trustee shall execute, authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Certificates of a like Class And in the aggregate principal amount of the
Certificate so surrendered. As of the Start-Up Day, the Trustee designates its
offices located at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as the location of
the Register.
(c) At the option of any Owner, Certificates of any Class owned by
such Owner may be exchanged for other Certificates authorized of like Class,
tenor and aggregate original principal amount and bearing numbers not
contemporaneously outstanding, upon surrender of the Certificates to be
exchanged at the office designated as the location of the Register. As of the
Start-Up Day, the Trustee designates its offices located at 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, as the location of the Register. Whenever any
Certificate is so surrendered for exchange, the Trustee shall execute,
authenticate and deliver the Certificate or Certificates which the Owner making
the exchange is entitled to receive.
(d) Certificates issued upon any registration of transfer or
exchange of Certificates shall be valid evidence of the same ownership interests
in the Trust and entitled to the same benefits under this Agreement as the
Certificates surrendered upon such registration of transfer or exchange.
(e) Any Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Trustee duly executed by the
Owner thereof or his attorney duly authorized in writing.
(f) No service charge shall be made to an Owner for any registration
of transfer or exchange of Certificates, but the Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Certificates; any other expenses in connection with such transfer or exchange
shall be an expense of the Trust.
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(g) It is intended that the Class A Certificates be registered so as
to participate in a global book-entry system with the Depository, as set forth
herein. Each Class of Class A Certificates shall, except as otherwise provided
in the next paragraph, be initially issued in the form of a single fully
registered Certificate with a denomination equal to the Original Certificate
Principal Balance for such Class. Upon initial issuance, the ownership of each
such Class A Certificate shall be registered in the Register in the name of Cede
& Co., or any successor thereto, as nominee for the Depository.
The Sponsor and the Trustee are hereby authorized to execute and
deliver the Representation Letter with the Depository.
With respect to Class A Certificates registered in the Register in
the name of Cede & Co., as nominee of the Depository, the Sponsor, the Master
Servicer, the Certificate Insurer and the Trustee shall have no responsibility
or obligation to Direct or Indirect Participants or beneficial owners for which
the Depository holds Class A Certificates from time to time as a Depository.
Without limiting the immediately preceding sentence, the Sponsor, the Master
Servicer, the Certificate Insurer and the Trustee shall have no responsibility
or obligation with respect to (i) the accuracy of the records of the Depository,
Cede & Co., or any Direct or Indirect Participant with respect to the ownership
interest in the Class A Certificates, (ii) the delivery to any Direct or
Indirect Participant or any other Person, other than a registered Owner of a
Class A Certificate as shown in the Register, of any notice with respect to the
Class A Certificates or (iii) the payment to any Direct or Indirect Participant
or any other Person, other than a registered Owner of a Class A Certificate as
shown in the Register, of any amount with respect to any distribution of
principal or interest on the Class A Certificates. No Person other than a
registered Owner of a Class A Certificate as shown in the Register shall receive
a certificate evidencing such Class A Certificate.
Upon delivery by the Depository to the Trustee of written notice to
the effect that the Depository has determined to substitute a new nominee in
place of Cede & Co., and subject to the provisions hereof with respect to the
payment of interest by the mailing of checks or drafts to the registered Owners
of Class A Certificates appearing as registered Owners in the registration books
maintained by the Trustee at the close of business on a Record Date, the name
"Cede & Co." in this Agreement shall refer to such new nominee of the
Depository.
(h) In the event that (i) the Depository or the Sponsor advises the
Trustee and the Certificate Insurer in writing that the Depository is no longer
willing or able to discharge properly its responsibilities as nominee and
depository with respect to the Class A Certificates and the Sponsor or the
Trustee is unable to locate a qualified successor or (ii) the Sponsor at its
sole option elects to terminate the book-entry system through the Depository,
the Class A Certificates shall no longer be restricted to being registered in
the Register in the name of Cede & Co. (or a successor nominee) as nominee of
the Depository. At that time, the Sponsor may determine that the Class A
Certificates shall be registered in the name of and deposited with a successor
depository operating a global book-entry system, as may be acceptable to the
Sponsor, or such depository's agent or designee but, if the Sponsor does not
select such alternative global
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book-entry system, then the Class A Certificates may be registered in whatever
name or names registered Owners of Class A Certificates transferring Class A
Certificates shall designate, in accordance with the provisions hereof;
provided, that the cost of any such re-registration shall be paid by the
Sponsor.
(i) Notwithstanding any other provision of this Agreement to the
contrary, so long as any Class A Certificate is registered in the name of Cede &
Co., as nominee of the Depository, all distributions of principal or interest on
such Class A Certificates as the case may be and all notices with respect to
such Class A Certificates as the case may be shall be made and given,
respectively, in the manner provided in the Representation Letter.
(j) None of the Sponsor, the Master Servicer, the Certificate
Insurer, or the Trustee will have any liability for any actions taken by DTC or
its nominee, Euroclear or Clearstream, including, without limitation, actions
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in the Class A Certificates held by Euroclear,
Clearstream or Cede & Co., as nominee for DTC, or for maintaining supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 5.05 Mutilated, Destroyed, Lost or Stolen Certificates. If
(i) any mutilated Certificate is surrendered to the Trustee, or the Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Certificate, and (ii) in the case of any mutilated Certificate, such mutilated
Certificate shall first be surrendered to the Trustee, and in the case of any
destroyed, lost or stolen Certificate, there shall be first delivered to the
Trustee such security or indemnity as may be reasonably required by it to hold
the Trustee harmless (provided, that with respect to an Owner which is an
insurance company, a letter of indemnity furnished by it shall be sufficient for
this purpose; provided, further, that such insurance company possesses at least
an investment grade rating from any of the Rating Agencies), then, in the
absence of notice to the Trustee that such Certificate has been acquired by a
bona fide purchaser, the Trustee shall execute, authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like Class, tenor and aggregate principal
amount, bearing a number not contemporaneously outstanding.
Upon the issuance of any new Certificate under this Section 5.05,
the Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto; any other
expenses in connection with such issuance shall be an expense of the Trust.
Every new Certificate issued pursuant to this Section 5.05 in
exchange for or in lieu of any mutilated, destroyed, lost or stolen Certificate
shall constitute evidence of a substitute interest in the Trust, and shall be
entitled to all the benefits of this Agreement equally and proportionately with
any and all other Certificates of the same Class duly issued hereunder and such
mutilated, destroyed, lost or stolen Certificate shall not be valid for any
purpose.
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The provisions of this Section 5.05 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Certificates.
SECTION 5.06 Persons Deemed Owners. The Trustee and any agent of the
Trustee may treat the Person in whose name any Certificate is registered as the
Owner of such Certificate for the purpose of receiving distributions with
respect to such Certificate and for all other purposes whatsoever, and neither
the Trustee nor any agent of the Trustee shall be affected by notice to the
contrary.
SECTION 5.07 Cancellation. All Certificates surrendered for
registration of transfer or exchange shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. No Certificate shall be authenticated in lieu of or in exchange for any
Certificate cancelled as provided in this Section 5.07, except as expressly
permitted by this Agreement. All cancelled Certificates may be held by the
Trustee in accordance with its standard retention policy.
SECTION 5.08 Limitation on Transfer of Ownership Rights. (a) No sale
or other transfer of any Class A Certificate shall be made to the Sponsor, any
Originator or any of their respective affiliates, other than Advanta National
Bank or Advanta Bank Corp.
(b) No sale or other transfer of record or beneficial ownership of a
Class R-I or Class R-II Certificate (whether pursuant to a purchase, a transfer
resulting from a default under a secured lending agreement or otherwise) shall
be made to a Disqualified Organization or an agent of a Disqualified
Organization. The transfer, sale or other disposition of a Class R-I or Class
R-II Certificate (whether pursuant to a purchase, a transfer resulting from a
default under a secured lending agreement or otherwise) to a Disqualified
Organization shall be deemed to be of no legal force or effect whatsoever and
such transferee shall not be deemed to be an Owner for any purpose hereunder,
including, but not limited to, the receipt of distributions on such Class R-I or
Class R-II Certificate. Furthermore, in no event shall the Trustee accept
surrender for transfer, registration of transfer, or register the transfer, of
any Class R-I or Class R-II Certificate nor authenticate and make available any
new Class R-I or Class R-II Certificate unless the Trustee has received an
affidavit from the proposed transferee in the form attached hereto as Exhibit I.
Each holder of a Class R-I or Class R-II Certificate by his acceptance thereof,
shall be deemed for all purposes to have consented to the provisions of this
Section 5.08(b).
(c) No sale or other transfer of record or beneficial ownership of a
Class B, Class BS, Class R-I or Class R-II Certificate shall be made unless such
transfer is exempt from the registration requirements of the Securities Act, and
any applicable state securities laws or is made in accordance with the
Securities Act and laws. In the event such a transfer is to be made within two
years from the Startup Day, (i) the Trustee or the Sponsor shall require a
written opinion of counsel acceptable to and in form and substance satisfactory
to the Sponsor that such transfer may be made pursuant to an exemption,
describing the applicable exemption and the basis therefor, from the
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Securities Act and laws or is being made pursuant to the Securities Act and
laws, which opinion of counsel shall not be an expense of the Trustee or the
Sponsor, and (ii) the Trustee shall require the Transferee to execute an
investment letter acceptable to and in form and substance satisfactory to the
Sponsor certifying to the Trustee and the Sponsor the facts surrounding such
transfer, which investment letter shall not be an expense of the Trustee or the
Sponsor. The Owner of a Class B, Class BS, Class R-I or Class R-II Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify the
Trustee and the Sponsor against any liability that may result if the transfer is
not so exempt or is not made in accordance with such federal and state laws. No
Class B, Class BS, Class R-I or Class R-II Certificate shall be acquired by or
transferred to (i) an employee benefit plan (as defined in section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) subject
to the provisions of Title I of ERISA, (ii) a plan (as defined in Section
4975(e)(1) of the Code) subject to Section 4975 of the Code, or (iii) an entity
whose underlying assets are deemed to be assets of a plan described in (i) or
(ii) above by reason of such plan's investment in the entity (each, a "Benefit
Plan Entity"). Any transferee of a Class B, Class BS, Class R-I or Class R-II
Certificate shall deliver to the Trustee a certificate to the effect that it is
not a Benefit Plan Entity.
SECTION 5.09 Assignment of Rights. An Owner may pledge, encumber,
hypothecate or assign all or any part of its right to receive distributions
hereunder, but such pledge, encumbrance, hypothecation or assignment shall not
constitute a transfer of an ownership interest sufficient to render the
transferee an Owner of the Trust without compliance with the provisions of
Sections 5.04 and 5.08 hereof.
ARTICLE VI
COVENANTS
SECTION 6.01 Distributions. The Trustee will duly and punctually pay
distributions with respect to the Certificates in accordance with the terms of
the Certificates and this Agreement. Such distributions shall be made (i) by
check mailed on each Payment Date or (ii) if requested by any Owner, to such
Owner by wire transfer to an account within the United States designated no
later than five Business Days prior to the related Record Date, made on each
Payment Date, in each case to each Owner of record on the immediately preceding
Record Date; provided, however, that an Owner of a Class A Certificate shall
only be entitled to payment by wire transfer if such Owner owns Class A
Certificates in the aggregate denomination of at least $5,000,000. The final
distribution on each Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the location specified in the
notice to Certificateholders of the final distribution.
SECTION 6.02 Money for Distributions to be Held in Trust;
Withholding. (a) All payments of amounts due and payable with respect to any
Certificate that are to be made from amounts withdrawn from the Certificate
Account pursuant to Section 7.05 hereof or from Insured Payments shall be made
by and on behalf of the Trustee, and no amounts so withdrawn from the
Certificate Account for payments
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of the Certificates and no Insured Payment shall be paid over to the Trustee
except as provided in this Section 6.02.
(b) The Trustee on behalf of the Trust shall comply with all
requirements of the Code and applicable state and local law with respect to the
withholding from any distributions made by it to any Owner of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
(c) Any money held by the Trustee in trust for the payment of any
amount due with respect to any Class A or Class B Certificate and remaining
unclaimed by the Owner of such Class A or Class B Certificate for the period
then specified in the escheat laws of the State of New York after such amount
has become due and payable shall be discharged from such trust and be paid
first, to the Certificate Insurer on account of any Reimbursement Amount, and
second to the Owners of the Class R-II Certificates; and the Owner of such Class
A or Class B Certificate shall thereafter, as an unsecured general creditor,
look only to the Owners of the Class R-II Certificates, or the Certificate
Insurer for payment thereof (but only to the extent of the amounts so paid to
the Certificate Insurer or the Owners of the Class R-II Certificates), and all
liability of the Trustee with respect to such trust money shall thereupon cease;
provided, however, that the Trustee, before being required to make any such
payment, shall at the expense of the Sponsor cause to be published once, in the
eastern edition of The Wall Street Journal, notice that such money remains
unclaimed and that, after a date specified therein, which shall be not fewer
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be paid to the Certificate Insurer or the Owners of
the Class R-II Certificates as provided above. The Trustee shall, at the
direction of the Sponsor, also adopt and employ, at the expense of the Sponsor,
any other reasonable means of notification of such payment (including, but not
limited to, mailing notice of such payment to Owners whose right to or interest
in monies due and payable but not claimed is determinable from the Register at
the last address of record for each such Owner).
SECTION 6.03 Protection of Trust Estate. (a) The Trustee will hold
the Trust Estate in trust for the benefit of the Owners and the Certificate
Insurer as their interests may appear, and, upon request of the Certificate
Insurer, or with the consent of the Certificate Insurer, at the request and
expense of the Sponsor, will from time to time execute and deliver all such
supplements and amendments hereto pursuant to Section 11.14 hereof and all
instruments of further assurance and other instruments, and will take such other
action upon such request as it deems reasonably necessary or advisable, to:
(i) more effectively hold in trust all or any portion of the Trust
Estate;
(ii) perfect, publish notice of, or protect the validity of any
grant made or to be made by this Agreement;
(iii) enforce any of the Mortgage Loans; or
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(iv) preserve and defend title to the Trust Estate and the rights of
the Trustee, and the ownership interests of the Owners represented
thereby, in such Trust Estate against the claims of all Persons and
parties.
The Trustee shall send copies of any request received from the
Certificate Insurer or the Sponsor to take any action pursuant to this Section
6.03 to the other party.
(b) The Trustee shall have the power to enforce, and shall enforce
the obligations of the other parties to this Agreement and of the Certificate
Insurer by action, suit or proceeding at law or equity, and shall also have the
power to enjoin, by action or suit in equity, any acts or occurrences which may
be unlawful or in violation of the rights of the Owners; provided, however, that
nothing in this Section 6.03 shall require any action by the Trustee unless the
Trustee shall first (i) have been furnished indemnity satisfactory to it and
(ii) when required by this Agreement, have been requested to take such action by
a majority of the Percentage Interests represented by the affected Class or
Classes of Class A Certificates then Outstanding or, if there are no longer any
affected Class A Certificates then outstanding, by such majority of the
Percentage Interests represented by the Class R-II Certificates.
(c) The Trustee shall execute any instrument required pursuant to
this Section so long as such instrument does not conflict with this Agreement or
with the Trustee's fiduciary duties.
SECTION 6.04 Performance of Obligations. (a) The Trustee will not
take any action that would release the Sponsor or the Certificate Insurer from
any of their respective covenants or obligations under any instrument or
document relating to the Trust Estate or the Certificates or which would result
in the amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or document, except
as expressly provided in this Agreement or such other instrument or document.
(b) The Trustee may contract with other Persons to assist it in
performing its duties hereunder.
SECTION 6.05 Negative Covenants. The Trustee will not, to the extent
within the control of the Trustee, take any of the following actions:
(i) sell, transfer, exchange or otherwise dispose of any of the
Trust Estate except as expressly permitted by this Agreement;
(ii) claim any credit on or make any deduction from the
distributions payable in respect of, the Certificates (other than amounts
properly withheld from such payments under the Code) or assert any claim
against any present or former Owner by reason of the payment of any taxes
levied or assessed upon any of the Trust Estate;
(iii) incur, assume or guaranty on behalf of the Trust any
indebtedness of any Person except pursuant to this Agreement;
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(iv) dissolve or liquidate the Trust Estate in whole or in part,
except pursuant to Article IX hereof; or
(v) (A) impair the validity or effectiveness of this Agreement, or
release any Person from any covenants or obligations with respect to the
Trust or to the Certificates under this Agreement, except as may be
expressly permitted hereby or (B) create or extend any lien, charge,
adverse claim, security interest, mortgage or other encumbrance to or upon
the Trust Estate or any part thereof or any interest therein or the
proceeds thereof.
SECTION 6.06 No Other Powers. The Trustee will not, to the extent
within the control of the Trustee, permit the Trust to engage in any business
activity or transaction other than those activities permitted by Section 2.03
hereof.
SECTION 6.07 Limitation of Suits. No Owner shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Agreement
or the Certificate Insurance Policy or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(a) such Owner has previously given written notice to the Sponsor,
the Certificate Insurer, and the Trustee of such Owner's intention to
institute such proceeding;
(b) the Owners of not less than 25% of the Percentage Interests
represented by the affected Class or Classes of Certificates then
Outstanding or, if there are no affected Classes of Class A or Class B
Certificates then Outstanding, by such percentage of the Percentage
Interests represented by the Class R-II Certificates, shall have made
written request to the Trustee to institute such proceeding in respect of
such Event of Default;
(c) such Owner or Owners have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such proceeding;
(e) as long as any Class A Certificate or any Reimbursement Amount
is outstanding, the Certificate Insurer consented in writing thereto; and
(f) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Certificate Insurer
or by the Owners of a majority of the Percentage Interests represented by
the Class A Certificates or, if there are no Class A Certificates then
Outstanding, by such majority of the Percentage Interests represented by
the Class R-II Certificates;
it being understood and intended that no one or more Owners shall have any right
in any manner whatever by virtue of, or by availing themselves of, any provision
of this
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Agreement to affect, disturb or prejudice the rights of any other Owner of the
same Class or to obtain or to seek to obtain priority or preference over any
other Owner of the same Class or to enforce any right under this Agreement,
except in the manner herein provided and for the equal and ratable benefit of
all the Owners of the same Class.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of Owners, each representing less
than a majority of the applicable Class of Certificates, the Trustee shall act
at the direction of the Certificate Insurer, notwithstanding any other provision
of this Agreement.
SECTION 6.08 Unconditional Rights of Owners to Receive
Distributions. Notwithstanding any other provision in this Agreement, the Owner
of any Certificate shall have the right, which is absolute and unconditional, to
receive distributions to the extent provided herein and therein with respect to
such Certificate or to institute suit for the enforcement of any such
distribution, and such right shall not be impaired without the consent of such
Owner.
SECTION 6.09 Rights and Remedies Cumulative. Except as otherwise
provided herein, no right or remedy herein conferred upon or reserved to the
Trustee, the Certificate Insurer or to the Owners is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
Except as otherwise provided herein, the assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.10 Delay or Omission Not Waiver. No delay of the Trustee,
the Certificate Insurer or any Owner of any Certificate to exercise any right or
remedy under this Agreement to any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article VI or by law to the
Trustee, the Certificate Insurer or to the Owners may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee, the Certificate
Insurer or by the Owners, as the case may be.
SECTION 6.11 Control by Owners. The Certificate Insurer (so long as
a Certificate Insurer Default has not occurred and is continuing) or the Owners
of a majority of the Percentage Interests represented by the Class A
Certificates then Outstanding, with the consent of the Control Party (which may
not be unreasonably withheld) or, if there are no longer any Class A
Certificates then Outstanding, by such majority of the Percentage Interests
represented by the Class R-II Certificates then Outstanding, with the consent of
the Control Party (which may not be unreasonably withheld) may direct the time,
method and place of conducting any proceeding for any remedy available to the
Control Party with respect to the Certificates or exercising any trust or power
conferred on the Control Party with respect to the Certificates or the Trust
Estate, including, but not limited to, those powers set forth in Section 6.03
and Section 8.20 hereof; provided, that:
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(a) such direction shall not be in conflict with any rule of law or
with this Agreement;
(b) the Control Party shall have been provided with indemnity
satisfactory to it; and
(c) the Trustee may take any other action deemed proper by the
Trustee, which is not inconsistent with such direction; provided, however,
that the Trustee need not take any action which it determines might
involve it in liability or may be unjustly prejudicial to the Owners not
so directing; provided, further, that in the event that any directions
provided by the Trustee and the Certificate Insurer conflict with each
other, the Certificate Insurer's direction shall prevail.
So long as an Certificate Insurer Default has not occurred and is
continuing, the Certificate Insurer shall act as the Control Party and be
subrogated thereto until all Reimbursement Amounts have been paid.
ARTICLE VII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 7.01 Collection of Money. Except as otherwise expressly
provided herein, the Trustee may demand payment or delivery of all money and
other property payable to or receivable by the Trustee pursuant to this
Agreement, including all payments due on the Mortgage Loans in accordance with
the respective terms and conditions of such Mortgage Loans and required to be
paid over to the Trustee by the Master Servicer or by any Sub-Servicer. The
Trustee shall hold all such money and property received by it, other than
pursuant to or as contemplated by Section 6.02(b) hereof, as part of the Trust
Estate and shall apply it as provided in this Agreement.
SECTION 7.02 Establishment of Accounts. On or prior to the Startup
Day, the Sponsor shall cause to be established, and the Trustee shall maintain,
at the corporate trust office of the Trustee, a Certificate Account which is to
be held by the Trustee in the name of the Trust for the benefit of the Owners of
the Certificates and the Certificate Insurer, as their interests may appear.
SECTION 7.03 The Certificate Insurance Policy. On each Determination
Date the Trustee shall determine with respect to the immediately following
Payment Date:
(a) The amounts to be on deposit in the Certificate Account on each
Payment Date with respect to the Mortgage Loans (disregarding the amounts
of any net investment earnings and any Insured Payments with respect
thereto and any investment earnings withdrawn from the Certificate Account
in accordance with Section 7.05(c) hereof), comprised of the Monthly
Remittance Amount, but excluding an amount equal to the sum of the Premium
Amount, the Servicing Fees and the Trustee's Fees for the related Payment
Date, are the "Available
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Funds"; provided, however, that the amounts which cannot be distributed to
the Owners of the Class A Certificates as a result of proceedings under
the United States Bankruptcy Code or similar insolvency laws will not be
considered in determining the amount of Available Funds;
(b) If the Trustee determines that a Deficiency Amount will exist
with respect to any Payment Date, the Trustee shall complete a Notice in
the form of Exhibit A to the Certificate Insurance Policy and submit such
notice to the Certificate Insurer no later than 12:00 noon New York City
time on the Business Day preceding such Payment Date as a claim for an
Insured Amount in an amount equal to such Deficiency Amount. Upon receipt
of Insured Payments from the Certificate Insurer under the Certificate
Insurance Policy, the Trustee shall deposit such Insured Payments in the
Certificate Account.
(c) The Trustee shall (i) receive Insured Payments as
attorney-in-fact of each Owner of the Class A Certificates of the related
Class receiving any Insured Payment from the Certificate Insurer and (ii)
disburse such Insured Payment to the Owners of the related Class A
Certificates as set forth in Section 7.05(c). The Certificate Insurer
shall be entitled to receive the Reimbursement Amount, as applicable,
pursuant to Section 7.05(c)(viii) hereof with respect to each Insured
Payment made by the Certificate Insurer. The Trustee hereby agrees on
behalf of each Owner of Class A Certificates and the Trust for the benefit
of the Certificate Insurer that it recognizes that to the extent the
Certificate Insurer makes Insured Payments, either directly or indirectly
(as by paying through the Trustee), to the Owners of such Class A
Certificates, the Certificate Insurer will be entitled to receive the
related Reimbursement Amount pursuant to Section 7.05(c)(viii).
(d) Insured Payments disbursed by the Trustee from proceeds of the
Certificate Insurance Policy shall not be considered payment by the Trust
Estate nor shall such payments discharge the obligation of the Trust
Estate with respect to such Class A Certificates, and the Certificate
Insurer shall become the owner of such unpaid amounts due from the Trust
Estate in respect of the Class A Certificates. The Trustee hereby agrees
on behalf of each Owner of a Class A Certificate for the benefit of the
Certificate Insurer that it recognizes that to the extent the Certificate
Insurer makes any Insured Payment, either directly or indirectly (as by
paying through the Trustee), to the Class A Certificateholders, the
Certificate Insurer will be subrogated to the rights of the Class A
Certificateholders with respect to such Insured Payment, shall be deemed
to the extent of payments so made to be a registered Class A
Certificateholder and shall receive all future distributions until all
such Insured Payments by the Certificate Insurer, together with interest
thereon at the Late Payment Rate, have been fully reimbursed. To evidence
such subrogation, the Trustee shall, or shall cause the Registrar to, note
the Certificate Insurer's rights as subrogee on the registration books
maintained by the Trustee or the Registrar upon receipt from the
Certificate Insurer of proof of payment of any Insured Payment. The effect
of the foregoing provisions is that, to the extent of Insured Payments
made by it, the Certificate
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Insurer shall be paid before payment of the balance of the distributions
are made to the other Owners of the Class A Certificates.
SECTION 7.04 [Reserved].
SECTION 7.05 Flow of Funds. (a) The Trustee shall on each Remittance
Date, deposit to the Certificate Account, without duplication, (i) upon receipt,
any Insured Payments, (ii) the proceeds of any liquidation of the assets of the
Trust and (iii) the Monthly Remittance Amount remitted by the Master Servicer or
any Sub-Servicer.
(b) [Reserved].
(c) On each Payment Date, the Trustee shall withdraw from the
Certificate Account and remit to the Master Servicer or its designee all net
investment earnings then on deposit in the Certificate Account, and shall make
the following allocations, disbursements and transfers of the remaining amount
then on deposit in the Certificate Account in the following order of priority,
and each such allocation, transfer and disbursement shall be treated as having
occurred only after all preceding allocations, transfers and disbursements have
occurred:
(i) first, from amounts then on deposit in the Certificate Account,
to the Trustee, an amount equal to the Trustee's Fees then due to it;
(ii) second, from amounts then on deposit in the Certificate
Account, to the Certificate Insurer the Premium Amount for such Payment
Date;
(iii) third, from amounts then on deposit in the Certificate Account
to the Master Servicer, an amount equal to any Servicing Fees then due to
it, to the extent not previously received by the Master Servicer pursuant
to Sections 8.08(c)(i) or 8.09(a) hereof;
(iv) fourth, from amounts then on deposit in the Certificate
Account, to the Owners of the Class A Certificates, pro rata, their
respective Class A Current Interest for such Payment Date;
(v) fifth, from amounts then on deposit in the Certificate Account,
to the Owners of the Class A Certificates, pro rata, their respective
Class A Interest Carry Forward Amount;
(vi) sixth, from amounts then on deposit in the Certificate Account,
to the Owners of the Class A Certificates, as a distribution of principal,
the Base Principal Distribution Amount for such Payment Date; such amount
to be paid out as a portion of the Principal Distribution Amount pursuant
to Section 7.05(d);
(vii) seventh, from amounts then on deposit in the Certificate
Account, to the Owners of the Class A Certificates, as a distribution of
principal, the
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Overcollateralization Deficit for such Payment Date; such amount to be
paid out as a portion of the Principal Distribution Amount pursuant to
Section 7.05(d);
(viii) eighth, from amounts then on deposit in the Certificate
Account, to the Certificate Insurer, the Reimbursement Amount, if any,
then due to it;
(ix) ninth, from amounts then on deposit in the Certificate Account,
to the Owners of the Class A Certificates, as a distribution of principal,
up to an amount equal to the Overcollateralization Increase Amount; such
amount to be paid out as a portion of the Principal Distribution Amount
pursuant to Section 7.05(d);
(x) tenth, from amounts then on deposit in the Certificate Account,
to the Master Servicer, to the extent of any unreimbursed Delinquency
Advances, unreimbursed Servicing Advances, including Nonrecoverable
Delinquency Advances and Nonrecoverable Servicing Advances and accrued and
unpaid Servicing Fees as of such Payment Date;
(xi) eleventh, from amounts then on deposit in the Certificate
Account, to the Trustee, to the extent of any unreimbursed expenses owed
to it;
(xii) twelfth, on each Payment Date, the Trustee shall transfer from
amounts then on deposit in either Certificate Account to the Supplemental
Interest Payment Account, the Class B Distribution Amount; such transfer
shall be deemed to be a distribution on the Class B Certificates; and
(xiii) thirteenth, on each Payment Date, the Trustee shall transfer
all remaining monies then on deposit in the Certificate Account to the
Owners of the Class R-II Certificates.
(d) Principal Distribution Amounts shall be applied as follows:
(i) the Principal Distribution Amount shall be applied in the
following order of priority:
(A) first, the Principal Distribution Amount shall be
distributed to the Owners of the Class A-6 Certificates
in an amount equal to the lesser of (x) the Class A-6
Principal Distribution Amount for such Payment Date and
(y) the Outstanding Class A-6 Certificate Principal
Balance for such Payment Date;
(B) second, the excess of (x) the Principal Distribution
Amount over (y) the amount distributed in clause
(d)(i)(A) above shall be distributed to the Owners of
the Class A-1 Certificates, the Class A-2 Certificates,
the Class A-3 Certificates, the Class A-4 Certificates
and the Class A-5 Certificates, sequentially in that
order, until the Certificate
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Principal Balance of each Class (in ascending order of
numerical designation) has been reduced to zero; and
(C) third, to the Owners of the Class A-6 Certificates, any
remaining amount of the Principal Distribution Amount
for such Payment Date until the Certificate Principal
Balance of the Class A-6 Certificates has been reduced
to zero.
Notwithstanding the foregoing, on any Payment Date on which
the Overcollateralization Amount is zero and the Certificate Insurer
is in default, the Principal Distribution Amount shall be
distributed pro rata to the Owners of the Class A Certificates and
not in accordance with the above priorities.
(e) Notwithstanding paragraph (c) above, on any Payment Date during
the continuance of any Certificate Insurer Default, no Premium Amounts or
Reimbursement Amounts shall be paid to the Certificate Insurer unless the
Certificate Insurer or its custodian, trustee, agent, receiver or similar
official continues to make payment under the Policy, and any amounts otherwise
payable to the Certificate Insurer as Premium Amounts or Reimbursement Amounts
shall be retained in the Certificate Account as the Available Funds, as
appropriate. On any Payment Date wherein such Certificate Insurer Default has
been cured, the Premium Amounts or Reimbursement Amount shall be paid to the
Certificate Insurer.
(f) Notwithstanding any of the foregoing provisions, the aggregate
amount distributed to the Owners of any Class A Certificates on account of
principal shall not exceed the Certificate Principal Balance for the related
Class.
SECTION 7.06 Investment of Accounts. (a) So long as no event
described in Sections 8.20(a) or (b) hereof shall have occurred and be
continuing, and consistent with any requirements of the Code, all or a portion
of the Accounts (other than the Principal and Interest Account) held by the
Trustee shall be invested and reinvested by the Trustee in the name of the
Trustee for the benefit of the Owners and the Certificate Insurer, as their
interests may appear, as directed in writing by the Master Servicer, in one or
more Eligible Investments bearing interest or sold at a discount. The Master
Servicer may invest funds held in the Principal and Interest Account in one or
more Eligible Investments. During the continuance of an event described in
Sections 8.20(a) or (b) hereof and following any removal of the Master Servicer,
the Control Party shall direct such investments. No investment in any Account
shall mature later than the Business Day immediately preceding the next Payment
Date.
(b) If any amounts are needed for disbursement from any Account held
by the Trustee or the Master Servicer, as the case may be, and sufficient
uninvested funds are not available to make such disbursement, the Trustee or the
Master Servicer, as the case may be, shall cause to be sold or otherwise
converted to cash a sufficient amount of the investments in such Account. No
investments will be liquidated prior to maturity unless the proceeds thereof are
needed for disbursement.
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(c) Subject to Section 10.01 hereof, the Trustee shall not in any
way be held liable by reason of any insufficiency in any Account held by the
Trustee resulting from any loss on any Eligible Investment included therein
(except and only to the extent that the bank serving as Trustee is the obligor
thereon and is otherwise liable).
(d) In the absence of any investment direction from the Master
Servicer with respect to amounts on deposit in the Accounts, the Trustee shall
invest such amounts in the Eligible Investment set forth in Section 7.07(i)
hereof.
(e) For purposes of investment, the Trustee may aggregate all
amounts on deposit in the Accounts. All income or other gain from investments in
the Accounts shall be deposited, pro rata, in the Accounts immediately on
receipt, and any loss resulting from such investments shall be charged, pro
rata, to the Accounts.
SECTION 7.07 Eligible Investments. The following are Eligible
Investments:
(a) Direct general obligations of the United States or the
obligations of any agency or instrumentality of the United States fully
and unconditionally guaranteed, the timely payment or the guarantee of
which constitutes a full faith and credit obligation of the United States.
(b) Federal Housing Administration debentures and rated Aa2 or
higher by Moody's and AA or better by Standard & Poor's.
(c) Xxxxxxx Mac senior debt obligations and rated Aa2 or higher by
Moody's and AA or better by Standard & Poor's.
(d) Federal Home Loan Banks' consolidated senior debt obligations
and rated Aa2 or higher by Moody's and AA or better by Standard & Poor's.
(e) Xxxxxx Xxx senior debt obligations and rated Aa2 or higher by
Moody's.
(f) Federal funds, certificates of deposit, time and demand
deposits, and bankers' acceptances (having original maturities of not more
than 365 days) of any domestic bank, the short-term debt obligations of
which have been rated A-1 or better by Standard & Poor's and P-1 by
Moody's.
(g) Investment agreements approved by the Control Party; provided:
(i) The agreement is with a bank or insurance company which
has an unsecured, uninsured and unguaranteed obligation (or
claims-paying ability) rated Aa2 or better by Moody's and AA or
better by Standard & Poor's, and
(ii) Monies invested thereunder may be withdrawn without any
penalty, premium or charge upon not more than one day's notice
(provided
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such notice may be amended or cancelled at any time prior to the
withdrawal date), and
(iii) The agreement is not subordinated to any other
obligations of such insurance company or bank, and
(iv) The same guaranteed interest rate will be paid on any
future deposits made pursuant to such agreement, and
(v) The Trustee and the Certificate Insurer receive an opinion
of counsel that such agreement is an enforceable obligation of such
insurance company or bank.
(h) Commercial paper (having original maturities of not more than
365 days) rated A-1 or better by Standard & Poor's and P-1 or better by Moody's.
(i) Investments in money market funds rated AAAm or AAAM-G by
Standard & Poor's and Aaa or P-1 by Moody's.
(j) Investments approved in writing by the Control Party and
acceptable to the Rating Agencies and the Certificate Insurer;
provided that no instrument described above is permitted to evidence either the
right to receive (a) only interest with respect to obligations underlying such
instrument or (b) both principal and interest payments derived from obligations
underlying such instrument and the interest and principal payments with respect
to such instrument provided a yield to maturity at par greater than 120% of the
yield to maturity at par of the underlying obligations; and provided, further,
that no instrument described above may be purchased at a price greater than par
if such instrument may be prepaid or called at a price less than its purchase
price prior to stated maturity; and provided, further, that, with respect to any
instrument described above, such instrument qualifies as a "permitted
investment" within the meaning of Section 860G(a)(5) of the Code and the
regulations thereunder.
SECTION 7.08 Reports by Trustee. (a) On each Payment Date the
Trustee shall provide to each Owner, to the Master Servicer, to the Certificate
Insurer, to each Underwriter, to the Sponsor and to each Rating Agency a written
report in substantially the form set forth as Exhibit I hereto, as such form may
be revised by the Trustee and the Master Servicer from time to time, but in
every case setting forth the information requested on Exhibit I hereto and the
following information:
(i) the amount of the distribution with respect to the related Class
of Certificates;
(ii) the amount of such distributions allocable to principal,
separately identifying the aggregate amount of any Prepayments or other
unscheduled recoveries of principal included therein;
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(iii) the amount of such distributions allocable to interest;
(iv) the Pass Through Rates, the Available Funds Cap Rate, and the
Interest Carry Forward Amount for each Class;
(v) the Certificate Principal Balance for each Class of Class A
Certificates as of such Payment Date, together with the principal amount
of such Class of Class A Certificates (based on a Certificate in an
original principal amount of $1,000) then outstanding, in each case after
giving effect to any payment of principal on such Payment Date;
(vi) with respect to the Class A Certificates, the amount of any
Insured Payment included in the amounts distributed in respect of the
Class A Certificates;
(vii) the aggregate Loan Balance of all Mortgage Loans after giving
effect to any payment of principal on such Payment Date in the aggregate;
(viii) information furnished by the Sponsor pursuant to Section
6049(d)(7)(C) of the Code and the regulations promulgated thereunder to
assist the Owners in computing their market discount;
(ix) the total of any Substitution Amounts and any Loan Purchase
Price amounts included in such distribution;
(x) the weighted average Coupon Rate of the Mortgage Loans;
(xi) the amount of any Supplemental Interest Amount;
(xii) the Overcollateralization Amount, the Overcollateralization
Deficit, if any, the Overcollateralization Deficiency Amount and the
Specified Overcollateralization Amount after giving effect to any payment
of principal on such Payment Date;
(xiii) the amount of Net Monthly Excess Cashflow;
(xiv) the aggregate Loan Balances of all Mortgage Loans that were
repurchased during the related Remittance Period and any repurchases
pursuant to Section 8.10;
(xv) the amounts, if any, of any Realized Losses for the related
Remittance Period;
(xvi) the Pool Cumulative Realized Losses (x) as a percentage of the
average Pool Principal Balance as of the close of business on the last day
of each of the twelve preceding Remittance Periods and (y) as a percentage
of the sum of the aggregate Loan Balances of the Mortgage Loans as of the
Initial Cut-Off Date;
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(xvii) whether a Servicer Termination Loss Trigger or a Servicer
Termination Delinquency Rate Trigger has occurred, as such terms are
defined in the Insurance Agreement; and
(xviii) a number with respect to each Class (the "Pool Factor" for
such Class) computed by dividing the Certificate Principal Balance for
such Class (after giving effect to any distribution of principal to be
made on such Payment Date) by the Certificate Principal Balance for such
Class on the Startup Day.
Items (i) through (iii) above shall, with respect to each Class of
Class A Certificates, be presented on the basis of a Certificate having a $1,000
denomination. In addition, by January 31 of each calendar year following any
year during which the Certificates are outstanding, the Trustee shall furnish a
report to each Owner of record at any time during each calendar year as to the
aggregate of amounts reported pursuant to (i), (ii) and (iii) with respect to
the Certificates for such calendar year. If a Class of Certificates is in
book-entry form, DTC will supply such reports to the Owners of such Class of
Certificates as are in accordance with its procedures.
(b) In addition, on each Payment Date the Trustee will distribute to
each Owner, to the Certificate Insurer, to each Underwriter, to the Master
Servicer, to the Sponsor and to each Rating Agency, together with the
information described in Subsection (a) preceding, the following information
with respect to the Mortgage Loans as of the close of business on the last
Business Day of the prior calendar month, which is hereby required to be
prepared by the Master Servicer and furnished to the Trustee for such purpose on
or prior to the related Remittance Date:
(i) the total number and aggregate Loan Balances of Mortgage Loans
and the percentage (based on the aggregate Loan Balances) of the aggregate
Loan Balances of such Mortgage Loans which are (a) 30-59 days Delinquent,
(b) 60-89 days Delinquent and (c) 90 or more days Delinquent;
(ii) the number, aggregate Loan Balances and percentage (based on
the aggregate Loan Balances of the Mortgage Loans) of all Mortgage Loans
in foreclosure proceedings (and whether any such Mortgage Loans are also
included in any of the statistics described in the foregoing clause (i));
(iii) the number, aggregate Loan Balances and percentage (based on
the aggregate Loan Balances of the Mortgage Loans) of all Mortgage Loans
relating to Mortgagors in bankruptcy proceedings (and whether any such
Mortgage Loans are also included in any of the statistics described in the
foregoing clause (i));
(iv) the number, aggregate Loan Balances and percentage (based on
the aggregate Loan Balances of the Mortgage Loans) of all Mortgage Loans
relating to REO Properties (and whether any such Mortgage Loans are also
included in any of the statistics described in the foregoing clause (i));
(v) the loan number of the Mortgage Loans and the book value of any
REO Property;
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(vi) the aggregate Loan Balance of 60+ Day Delinquent Mortgage
Loans;
(vii) the book value of any REO Property; and
(viii) the Loan Balance of the three largest Mortgage Loans and the
aggregate amount of such Loan Balances.
(c) The Sponsor and the Master Servicer, on behalf of
Certificateholders and the Trust (the "Trust Parties") hereby authorize the
Trustee to include the loan level information with respect to the Mortgage
Loans, excluding (i) any information relating to the fees or amounts due to the
Certificate Insurer, (ii) the name of the Mortgagor and (iii) the street address
of the Property, contained in reports provided to the Certificate Insurer or the
Trustee by the Master Servicer hereunder and, if so directed by an Authorized
Officer of the Sponsor in writing to the Trustee, the monthly report to the
Owners prepared by the Trustee (the "Information") on The Bloomberg, an on-line
computer based on-line information network maintained by Bloomberg L.P.
("Bloomberg") or on any other on-line computer based on-line information network
or service ("Information Network"), or in other electronic or print information
services deemed acceptable by the Sponsor or the Master Servicer as designated
in writing to the Trustee by an Authorized Officer of the Master Servicer. The
Trust Parties agree not to commence any actions or proceedings, or otherwise
assert any claims, against the Trustee or its affiliates or any of the Trustee's
or its affiliates' respective agents, representatives, directors, officers or
employees (collectively, the "Designated Parties"), arising out of, or related
to or in connection with the dissemination and/or use of any Information by the
Trustee, including, but not limited to, claims based on allegations of
inaccurate or incomplete information by the Trustee to Bloomberg or to any
Information Network or otherwise (other than in connection with the Trustee's
negligence or willful misconduct). The Trust Parties waive their rights to
assert any such claims against the Designated Parties and fully and finally
release the Designated Parties from any and all such claims, demands,
obligations, actions and liabilities (other than in connection with such
Designated Parties' negligence or willful misconduct). The Trustee makes no
representations or warranties, expressed or implied, of any kind whatsoever with
respect to the accuracy, adequacy, timeliness, completeness, merchantability or
fitness for any particular purpose of any Information in any form or manner. The
authorizations, covenants and obligations of the Trust Parties under this
section shall be irrevocable and shall survive the termination of this
Agreement.
SECTION 7.09 Additional Reports by Trustee. (a) The Trustee shall
report to the Sponsor, the Certificate Insurer and the Master Servicer with
respect to the amount then held in each Account (including investment earnings
accrued or scheduled to accrue) held by the Trustee and the identity of the
investments included therein, as the Sponsor, the Master Servicer or the
Certificate Insurer may from time to time request. Without limiting the
generality of the foregoing, the Trustee shall, at the request of the Sponsor,
the Master Servicer or the Certificate Insurer, transmit promptly to the
Sponsor, the Certificate Insurer and the Master Servicer copies of all
accounting of receipts in respect of the Mortgage Loans furnished to it by the
Master Servicer and shall notify the
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Sponsor, the Certificate Insurer and the Master Servicer if any such receipts
have not been received by the Trustee.
(b) The Trustee shall immediately report to the Certificate Insurer,
the Sponsor and the Master Servicer with respect to its actual knowledge,
without independent investigation, of any breach of any of the representations
or warranties relating to individual Mortgage Loans set forth in any Mortgage
Loan Transfer Agreement or in Section 3.03(a) hereof.
SECTION 7.10 Supplemental Interest Payment Account and Supplemental
Interest Payments. (a) The parties hereto do hereby create and establish a
trust, the "Advanta Supplemental Interest Trust 2000-2". The Supplemental
Interest Trust shall hold a trust account at the corporate trust office of the
Trustee; the "Supplemental Interest Payment Account" to be held by the Trustee
in its name on behalf of the Supplemental Interest Trust. None of the assets of
the Supplemental Interest Trust shall be considered assets of the REMIC Trust,
and any amounts transferred from the REMIC Trust to the Supplemental Interest
Trust shall be treated as distributions with respect to the Class B
Certificates.
(b) The amount, if any, on deposit in the Supplemental Interest
Payment Account on any Payment Date is the "Supplemental Interest Payment Amount
Available" on such Payment Date.
On each Payment Date, the Trustee shall withdraw from the
Supplemental Interest Payment Account and pay to the Owners of each Supplemental
Interest Right (which Owners shall be, in the absence of contrary instructions
received by the Trustee from the Owners of the Class A-1 Certificates, the
Owners of the Class A-1 Certificates), pro rata based on the Supplemental
Interest Amount due to each such Class, the lesser of (x) the sum of (i) the
Supplemental Interest Amount for such Payment Date plus (ii) any Supplemental
Interest Shortfall Carry-Forward Amount and (y) the Supplemental Interest
Payment Amount Available.
If, on any Payment Date, the Supplemental Interest Payment Amount
Available is insufficient to pay the Supplemental Interest Amount for such
Payment Date (such deficiency, the "Supplemental Interest Shortfall Amount"),
the Trustee shall demand that the Designated Residual Owner fund such deficiency
on the related Payment Date and the Designated Residual Owner shall be required
to fund such deficiency.
(c) Any portion of the Supplemental Interest Payment Amount
Available remaining after application of clause (b) above shall be distributed
to the owners of the Class BS Certificates pro rata in accordance with their
Percentage Interests.
(d) The Trustee, on behalf of the Supplemental Interest Trust, shall
comply with all requirements of the Code and applicable state and local law with
respect to the withholding from any distributions made by it to any Person
entitled thereto of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection therewith.
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(e) Notwithstanding any other provision of this Section 7.10, the
right to receive the Supplemental Interest Amount plus any Supplemental Interest
Shortfall Carry-Forward Amounts (such right, the "Supplemental Interest Right")
shall be separately transferable from the Class A-1 Certificates, subject to the
restrictions on transfer set forth in Article V hereof. Such amounts will not be
treated as an obligation of the Upper-Tier REMIC.
(f) The Trustee shall treat the Supplemental Interest Account as an
outside reserve fund within the meaning of Treasury Regulation 1.860G-2(h) that
is owned by the Class B Certificateholder and that is not an asset of the REMIC.
The Trustee shall treat the rights of the Class A-1 Certificateholders to
receive payments from the Supplemental Interest Account as rights in an interest
rate cap contract written by the Class B Certificateholder in favor of the Class
A-1 Certificateholders. Thus, each Class A-1 Certificate shall be treated as
representing ownership of not only a Upper-Tier REMIC Regular Interest, but also
ownership of an interest in an interest rate cap contract.
ARTICLE VIII
SERVICING AND ADMINISTRATION
OF MORTGAGE LOANS
SECTION 8.01 Master Servicer and Sub-Servicers. (a) Acting directly
or through one or more Sub-Servicers as provided in Section 8.03, the Master
Servicer, as master servicer, shall service and administer the Mortgage Loans in
accordance with this Agreement on behalf of the Trustee, the Owners and the
Certificate Insurer in accordance with Accepted Servicing Practices, and shall
have full power and authority, acting alone, to do or cause to be done any and
all things in connection with such servicing and administration which it may
deem necessary or desirable.
(b) With respect to the Mortgage Loans, the duties of the Master
Servicer shall include (i) collecting and posting of all payments, (ii)
responding to inquiries of Mortgagors or by federal, state or local government
authorities, (iii) investigating delinquencies, (iv) reporting tax information
to Mortgagors in accordance with its customary practices, (v) accounting for
collections, (vi) furnishing monthly and annual statements to the Trustee and
the Certificate Insurer, as applicable, with respect to distributions, (vii)
paying Compensating Interest and (viii) making Delinquency Advances and
Servicing Advances pursuant hereto. The Master Servicer shall follow its
customary standards, policies and procedures in performing its duties as Master
Servicer. The Master Servicer shall cooperate with the Trustee and furnish to
the Trustee with reasonable promptness information in its possession as may be
necessary or appropriate to enable the Trustee to perform its tax reporting
duties hereunder
(c) Subject to clause (e) below, without limiting the generality of
the foregoing, the Master Servicer (i) shall continue, and is hereby authorized
and empowered by the Trustee, to execute and deliver, on behalf of itself, the
Owners, the Certificate Insurer and the Trustee or any of them, any and all
instruments of satisfaction or cancellation, or of full release or discharge and
all other comparable instruments, with
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respect to the Mortgage Loans and with respect to the related Properties; (ii)
may consent to any modification of the terms of any Note not expressly
prohibited hereby if the effect of any such modification (x) will not be to
affect materially and adversely the security afforded by the related Property,
the timing of receipt of any payments required hereby or the interests of the
Certificate Insurer and (y) will not cause either the Upper-Tier REMIC or the
Lower-Tier to fail to qualify as a REMIC.
(d) The Master Servicer shall, in accordance with Accepted Servicing
Practices, have the right to approve applications of Mortgagors for consent to
(i) partial releases of Mortgages, (ii) alterations to Properties and (iii)
removal, demolition or division of Properties. No application for consent may be
approved by the Master Servicer unless: (x) the provisions of the related Note
and Mortgage have been complied with; (y) the Combined Loan-to-Value Ratio
(which may, for this purpose, be determined at the time of any such action in a
manner reasonably acceptable to the Trustee) and the Mortgagor's debt-to-income
ratio after any release does not exceed the Combined Loan-to-Value Ratio and
debt-to-income ratio applicable to such Mortgage Loan at origination and (z) the
lien priority of the related Mortgage is not adversely affected or reduced;
provided, however, that the foregoing requirements (x), (y) and (z) shall not
apply to any such situation described in this paragraph if such situation
results from any condemnation or easement activity by a governmental entity.
(e) The parties intend that both the Upper-Tier REMIC and the
Lower-Tier REMIC shall constitute a REMIC and that the affairs of each shall be
conducted so as to qualify each as a REMIC. In furtherance of such intention,
the Master Servicer covenants and agrees that it shall act as agent (and the
Master Servicer is hereby appointed to act as agent) on behalf of each such
REMIC and that in such capacity it shall: (i) use its best efforts to conduct
the affairs of each such REMIC at all times that any Class of Certificates are
outstanding so as to maintain the status of each such REMIC as a REMIC under the
REMIC Provisions; (ii) not knowingly or intentionally take any action or omit to
take any action that would cause the termination of the REMIC status of either
such REMIC or that would subject the Trust to tax and (iii) exercise reasonable
care not to allow either such REMIC to receive income from the performance of
services or from assets not permitted under the REMIC Provisions to be held by
each REMIC.
(f) Without limiting the generality of the foregoing, but subject to
Sections 8.13 and 8.14, the Master Servicer in its own name or in the name of a
Sub-Servicer may be authorized and empowered pursuant to a power of attorney
executed and delivered by the Trustee to execute and deliver, and may be
authorized and empowered by the Trustee, to execute and deliver, on behalf of
itself, the Owners, the Certificate Insurer and the Trustee or any of them, (i)
any and all instruments of satisfaction or cancellation or of partial or full
release or discharge and all other comparable instruments with respect to the
Mortgage Loans and with respect to the Properties, (ii) and to institute
foreclosure proceedings or obtain a deed in lieu of foreclosure so as to effect
ownership of any Property on behalf of the Trustee, and (iii) to hold title to
any Property upon such foreclosure or deed in lieu of foreclosure on behalf of
the Trustee; provided, however, that Section 8.14(a) shall constitute a power of
attorney from the Trustee to the Master Servicer or any Sub-Servicer to execute
an instrument of satisfaction (or assignment of
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mortgage without recourse) with respect to any Mortgage Loan paid in full (or
with respect to which payment in full has been escrowed). Subject to Sections
8.13 and 8.14, the Trustee shall furnish the Master Servicer and any
Sub-Servicer with any powers of attorney and other documents as the Master
Servicer or such Sub-Servicer shall reasonably request to enable the Master
Servicer and such Sub-Servicer to carry out their respective servicing and
administrative duties hereunder.
(g) The Master Servicer shall give prompt notice to the Trustee of
any action, of which the Master Servicer has actual knowledge, to (i) assert a
claim against the Trust or (ii) assert jurisdiction over the Trust.
(h) Servicing Advances incurred by the Master Servicer or any
Sub-Servicer in connection with the servicing of the Mortgage Loans (including
any penalties in connection with the payment of any taxes and assessments or
other charges) on any Property shall be recoverable by the Master Servicer or
such Sub-Servicer to the extent described in Section 8.09(c) and in Section
7.05(c)(x).
(i) The Master Servicer shall modify payments of monthly principal
and interest on any Mortgage Loan becoming subject to the terms of the Civil
Relief Act in accordance with the Master Servicer's general policies of the
comparable mortgage loans subject to the Civil Relief Act.
SECTION 8.02 Collection or Modification of Certain Mortgage Loan
Payments. (a) The Master Servicer shall, to the extent such procedures shall be
consistent with this Agreement and the terms and provisions of any applicable
Mortgage Insurance Policies, follow Accepted Servicing Practices. The Master
Servicer may in its discretion waive any assumption fees, late payment charges,
charges for checks returned for insufficient funds, Prepayment Penalties, if
any, or other fees which may be collected in the ordinary course of servicing
the Mortgage Loans; provided, that, until the time the Overcollateralization
Amount first reaches the Specified Overcollateralization Amount, the Master
Servicer may not waive or allow to be waived Prepayment Penalties with respect
to more than 365 Mortgage Loans.
In addition, the Master Servicer may, if a Mortgagor is in default
or about to be in default because of a Mortgagor's financial condition, arrange
with the Mortgagor a schedule for the payments due on the related Mortgage Loan;
provided, however, the Master Servicer shall not reschedule the payment of
delinquent payments more than one time in any twelve consecutive months with
respect to any Mortgagor; and provided, further, that such modifications shall
not be made in excess of 5% of the aggregate of the Original Balance without the
prior written consent of the Certificate Insurer; provided, further, however,
that, if the Certificate Insurer has not given its consent within five (5)
Business Days after notice from the Master Servicer, the Certificate Insurer
shall be deemed to have given its consent to such modification or rescheduling
for payments of delinquent payments; provided, however, that such notice and
consent shall not be required in the event that the Master Servicer determines,
in its good faith business judgment that such modification is legally required
to be made prior to such five day
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period, in which case the Master Servicer shall give the Certificate Insurer
immediate notice of such action.
(b) The Master Servicer shall hold in escrow on behalf of the
related Mortgagor all Prepaid Installments received by it, and shall apply such
Prepaid Installments as directed by such Mortgagor and as set forth in the
related Note.
SECTION 8.03 Sub-Servicing Agreements Between Master Servicer and
Sub-Servicers. The Master Servicer may and is hereby authorized to perform any
of its servicing responsibilities with respect to all or certain of the Mortgage
Loans through a Sub-Servicer, which may be an Affiliate. Pursuant to the
foregoing, the Master Servicer may enter into Sub-Servicing Agreements for any
servicing and administration of Mortgage Loans with any institution which is in
compliance with the laws of each state necessary to enable it to perform its
obligations under such Sub-Servicing Agreement. The Master Servicer shall give
notice to the Certificate Insurer and the Trustee of the appointment of any
Sub-Servicer which is not a Master Servicer Affiliate. The Master Servicer shall
also furnish to the Certificate Insurer and the Trustee a copy of the
Sub-Servicing Agreement, except when the Sub-Servicer is a Master Servicer
Affiliate. For purposes of this Agreement, the Master Servicer shall be deemed
to have received payments on Mortgage Loans when any Sub-Servicer has received
such payments. Any such Sub-Servicing Agreement shall be consistent with and not
violate the provisions of this Agreement.
By delivery of the Certificate Insurance Policy, the Certificate
Insurer is deemed to have approved Advanta National Bank and Advanta Bank
Corp. as Sub-Servicers hereunder.
SECTION 8.04 Successor Sub-Servicers. The Master Servicer may
terminate any Sub-Servicing Agreement in accordance with the terms and
conditions of such Sub-Servicing Agreement and either directly service the
related Mortgage Loans itself or enter into a Sub-Servicing Agreement with a
successor Sub-Servicers that qualifies under Section 8.03.
SECTION 8.05 Liability of Master Servicer. The Master Servicer shall
not be relieved of its obligations under this Agreement notwithstanding any
Sub-Servicing Agreement between the Master Servicer and a Sub-Servicer or
otherwise, and the Master Servicer shall be obligated to the same extent and
under the same terms and conditions as if it alone were servicing and
administering the Mortgage Loans. The Master Servicer shall be entitled to enter
into any agreement with a Sub-Servicer for indemnification of the Master
Servicer by such Sub-Servicer and nothing contained in such Sub-Servicing
Agreement shall be deemed to limit or modify this Agreement. The Trust shall not
indemnify the Master Servicer for any losses due to the Master Servicer's
negligence.
SECTION 8.06 No Contractual Relationship Between Sub-Servicer and
Trustee or the Owners. Any Sub-Servicing Agreement and any other transactions or
services relating to the Mortgage Loans involving a Sub-Servicer shall be deemed
to be
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between the Sub-Servicer and the Master Servicer alone and the Certificate
Insurer, the Trustee and the Owners shall not be deemed parties thereto and
shall have no claims, rights, obligations, duties or liabilities with respect to
any Sub-Servicer except as set forth in Section 8.07.
SECTION 8.07 Assumption or Termination of Sub-Servicing Agreement by
Trustee. In connection with the assumption of the responsibilities, duties and
liabilities and of the authority, power and rights of the Master Servicer
hereunder by the Trustee pursuant to Section 8.20, it is understood and agreed
that the Master Servicer's rights and obligations under any Sub-Servicing
Agreement then in force between the Master Servicer and a Sub-Servicer may be
assumed or terminated by the Trustee at its option. Any termination fee due
under any such Sub-Servicing agreement shall be paid by the preceding Master
Servicer but in no event shall the Trustee be liable for any such fee.
The Master Servicer shall, upon request of the Trustee, but at the
expense of the Master Servicer, deliver to the assuming party documents and
records relating to each Sub-Servicing Agreement and an accounting of amounts
collected and held by it and otherwise use its best reasonable efforts to effect
the orderly and efficient transfer of the Sub-Servicing Agreements to the
assuming party, without the payment of any fee by the Trustee, notwithstanding
any contrary provision in any Sub-Servicing Agreement.
SECTION 8.08 Principal and Interest Account. (a) The Master Servicer
and/or each Sub-Servicer, as applicable, shall establish and maintain at one or
more Designated Depository Institutions in the name of the Trust for the benefit
of the Owners of the Certificates and the Certificate Insurer, as their
interests may appear, a Principal and Interest Account. The establishment of the
Principal and Interest Account shall be evidenced by the Master Servicer's
delivery of a notice in the form of Exhibit C hereto, properly completed.
Subject to Subsections (c) and (e) below, the Master Servicer and
any Sub-Servicer shall deposit all receipts of principal and accrued interest
related to the Mortgage Loans to the Principal and Interest Account on a daily
basis (but no later than the second Business Day after receipt).
(b) All funds in the Principal and Interest Account may only be held
(i) uninvested, up to the limits insured by the FDIC or (ii) invested in
Eligible Investments. The Principal and Interest Account shall be held in trust
in the name of the Trust and for the benefit of the Owners of the Certificates
and the Certificate Insurer. Any investment earnings on funds held in the
Principal and Interest Account shall be for the account of the Master Servicer.
Any references herein to amounts on deposit in the Principal and Interest
Account shall refer to amounts net of such investment earnings. Any investment
losses are at the expense of the Master Servicer and shall be replaced on or
prior to the Remittance Date.
(c) With respect to the Mortgage Loans and subject to Section
8.08(e), the Master Servicer shall deposit to the Principal and Interest Account
all principal
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collected and interest accrued on or after the Initial Cut-Off Date or
Replacement Cut-Off Date including any Prepaid Installments, Prepayments, Net
Liquidation Proceeds, all Loan Purchase Prices, Substitution Amounts and, until
such time as the Overcollateralization Amounts first equals the Specified
Overcollateralization Amount, all Prepayment Penalties received or paid by the
Master Servicer, other recoveries or amounts received by the Master Servicer,
Compensating Interest and Delinquency Advances together with any amounts which
are reimbursable from such Principal and Interest Account, but net of (i) the
Servicing Fee and other servicing compensation due to the Master Servicer as
permitted by Section 8.15 hereof, (ii) principal (including Prepayments)
collected on the related Mortgage Loans prior to the Initial Cut-Off Date or
Replacement Cut-Off Date (iii) interest accruing on the related Mortgage Loans
prior to the Initial Cut-Off Date or Replacement Cut-Off Date and (iv) Net
Liquidation Proceeds to the extent such Net Liquidation Proceeds exceed the sum
of the Loan Balance of the related Mortgage Loan and accrued and unpaid interest
thereon.
(d) (i) The Master Servicer may make withdrawals from the
Principal and Interest Account only for the following purposes:
(A) to effect the timely remittance to the Trustee of the
Monthly Remittance Amounts due on the Remittance Date;
(B) to reimburse itself pursuant to Section 8.09(a) hereof
for unreimbursed Delinquency Advances and Servicing
Advances and Nonrecoverable Advances;
(C) to withdraw investment earnings on amounts on deposit in
the Principal and Interest Account, if such investment
earnings have been deposited in the Principal and
Interest Account;
(D) to withdraw amounts that have been deposited to a
Principal and Interest Account in error;
(E) to clear and terminate each Principal and Interest
Account following the termination of the Trust pursuant
to Article X; and
(F) to invest in Eligible Investments.
(ii) On the tenth day of each month, the Master Servicer shall send
to the Trustee a computer tape, detailing the payments on the Mortgage
Loans during the prior Remittance Period. Such tape shall be in the form
and have the specifications as may be agreed to between the Master
Servicer and the Trustee from time to time. The Certificate Insurer shall
have the right to request this computer tape upon providing three (3)
Business Days' written notice to the Master Servicer. Upon any change in
the format of the electronic medium maintained by the Master Servicer in
respect of the Mortgage Loans, the Master Servicer shall deliver a copy of
such electronic medium to the Trustee.
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(iii) On each Remittance Date, the Master Servicer shall remit to
the Trustee by wire transfer in immediately available funds for deposit in
the Certificate Account the amounts specified in Section 7.05(a) of this
Agreement, the Monthly Remittance Amount.
(e) To the extent that the ratings, if any, then assigned to the
unsecured debt of the Master Servicer or of the Master Servicer's ultimate
corporate parent are satisfactory to the Certificate Insurer and each Rating
Agency, then the requirement to maintain the Principal and Interest Account and
deposit of principal collections and accrued interest may be waived by an
instrument signed by the Certificate Insurer and each Rating Agency, and the
Master Servicer may be allowed to co-mingle with its general funds the amounts
otherwise required to be deposited to the Principal and Interest Account, on
such terms and subject to such conditions as the Certificate Insurer and each
Rating Agency may permit.
SECTION 8.09 Delinquency Advances, Compensating Interest and
Servicing Advances. (a) The Master Servicer is required, not later than each
Remittance Date, to deposit into the Principal and Interest Account an amount
equal to the sum of the interest portions accrued (net of the Servicing Fees and
certain other administrative amounts, if any) with respect to Delinquent
Mortgage Loans during the related Remittance Period but not collected on or
prior to such Remittance Date, but only if, in its good faith business judgment,
the Master Servicer reasonably believes that such amount will ultimately be
recoverable from the related Mortgage Loan. Such amounts are "Delinquency
Advances".
The Master Servicer shall be permitted to fund its payment of
Delinquency Advances on any Remittance Date and to reimburse itself for any
Delinquency Advances paid from the Master Servicer's own funds, (x) from
subsequent collections on the related Mortgage Loan or (y) from collections on
other Mortgage Loans deposited to the Principal and Interest Account subsequent
to the related Remittance Period; provided, that, with respect to clause (y)
above, the Master Servicer shall deposit into the Principal and Interest Account
with respect thereto (i) late collections from the Mortgagor whose Delinquency
gave rise to the shortfall which resulted in such Delinquency Advance, (ii) Net
Liquidation Proceeds recovered on account of the related Mortgage Loan and/or
(iii) its own funds, the sum of which shall equal the aggregate amount of
collections utilized pursuant to clause (y). If not therefore recovered from the
related Mortgagor or the related Net Liquidation Proceeds, Delinquency Advances
constituting Nonrecoverable Advances shall be recoverable pursuant to Section
7.05(c)(x) hereof.
The parties hereto intend the provision of this Section 8.09(a) to
comply with Treasury Regulation Section 1.860G-2(c)(3).
(b) On or prior to each Remittance Date, the Master Servicer shall
deposit in the Principal and Interest Account with respect to any full
Prepayment received on a Mortgage Loan during the related Remittance Period
Compensating Interest out of its own funds, without any right of reimbursement
therefor. "Compensating Interest"
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shall equal the lesser of (i) the aggregate of the Prepayment Interest
Shortfalls for the related Remittance Period and (ii) the aggregate Servicing
Fee received by the Master Servicer with respect to all Mortgage Loans for such
Remittance Period; in no event shall the Master Servicer be required to pay
Compensating Interest with respect to any Remittance Period in an amount in
excess of the aggregate Servicing Fee received by the Master Servicer with
respect to all Mortgage Loans for such Remittance Period nor shall it be
required to pay Compensating Interest due to partial prepayments or Civil Relief
Act Shortfalls. "Prepayment Interest Shortfall" for any Mortgage Loan prepaid in
full shall be an amount equal to the difference between (x) 30 days' interest at
the Mortgage Loan's Coupon Rate (less the Servicing Fee) on the Loan Balance of
such Mortgage Loan as of the first day of the related Remittance Period and (y)
the interest (less the Servicing Fee) paid by the Mortgagor with respect to the
Mortgage Loan during such Remittance Period.
The parties hereto intend the provisions of this Section 8.09(b) to
comply with Treasury Regulation Section 1.860G-2(e).
(c) The Master Servicer will pay all "out-of-pocket" costs and
expenses incurred by the Master Servicer in the performance of its servicing
obligations, including, but not limited to, the cost of (i) Preservation
Expenses (including the payment of flood insurance premiums), (ii) any
enforcement or judicial proceedings, including (a) foreclosures, and (b) other
legal actions and costs associated therewith that potentially affect the
existence, validity, priority, enforceability or collectibility of the Mortgage
Loans, including collection agency fees and costs of pursuing or obtaining
personal judgments, garnishments, levies, attachment and similar actions, (iii)
the conservation, management, liquidation, sale or other disposition of any
Mortgaged Property acquired in satisfaction of the related Mortgage Loan,
including reasonable fees paid to any independent contractor in connection
therewith, and (iv) advances to keep liens current; and with respect to any of
the foregoing, the Master Servicer is only required to pay such costs and
expenses to the extent the Master Servicer reasonably believes such costs and
expenses will be recoverable from the related Mortgage Loan. Each such amount so
paid will constitute a "Servicing Advance". The Master Servicer may recover
Servicing Advances (x) from the Mortgagors to the extent permitted by the
Mortgage Loans, (y) from Liquidation Proceeds realized upon the liquidation of
the related Mortgage Note and (z) as provided in Section 7.05(c)(x) hereof. In
no case may the Master Servicer recover Servicing Advances from principal and
interest payments on any other Mortgage Loan or from any amounts relating to any
other Mortgage Loan except as provided pursuant to Section 7.05(c)(x) hereof.
The parties intend that the provisions of this Section 8.09(c)
comply with Treasury Regulation Section 1.860G-2(c)(3)(iii).
(d) On the first Remittance Date following the Startup Day, the
Master Servicer shall make an advance (a "Special Advance") equal to the sum of
one-month's interest, calculated at the weighted average Pass-Through Rate
(applicable to such Payment Date, as the case may be, for the Class A
Certificates) with respect to all Mortgage Loans not having a payment due prior
to September 2000; the amounts of such Special Advances shall be included in the
related Interest Remittance Amount. Special
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Advances are Nonrecoverable Advances, reimbursement of which shall be made only
as provided in Section 7.05(c)(x).
SECTION 8.10 Purchase of Mortgage Loans. The Master Servicer may,
but is not obligated to, purchase for its own account any Mortgage Loan which
becomes Delinquent, in whole or in part, as to four consecutive monthly
installments or any Mortgage Loan as to which enforcement proceedings have been
brought by the Master Servicer or by any Sub-Servicer pursuant to Section 8.13.
Any such Mortgage Loan shall be purchased by the Master Servicer on a Remittance
Date at a purchase price equal to the Loan Purchase Price thereof, which
purchase price shall be deposited in the Principal and Interest Account.
Notwithstanding the foregoing, the Master Servicer may not purchase any such
Mortgage Loan unless the Master Servicer has delivered to the Trustee and the
Certificate Insurer an opinion of counsel experienced in federal income tax
matters acceptable to the Trustee to the effect that such a purchase would not
constitute a Prohibited Transaction for the Trust or otherwise subject the Trust
to tax and would not jeopardize the status of either the Upper-Tier REMIC or the
Lower-Tier REMIC as a REMIC.
SECTION 8.11 Maintenance of Insurance. (a) The Master Servicer shall
cause to be maintained with respect to each Mortgage Loan either a blanket
insurance policy as described in Section 8.11(c) hereof or a hazard insurance
policy that provides for fire and extended coverage, and which provides for a
recovery by the Master Servicer on behalf of the Trust of insurance proceeds
relating to such Mortgage Loan in an amount not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the minimum amount
required to compensate for damage or loss on a replacement cost basis and (iii)
the full insurable value of the premises.
(b) If the Mortgage Loan at the time of origination relates to a
Property in an area identified in the Federal Register by the Federal Emergency
Management Agency as having special flood hazards, the Master Servicer will
cause to be maintained with respect thereto either a master policy as described
in Section 8.11(c) hereof or a flood insurance policy in a form meeting the
requirements of the current guidelines of the Federal Insurance Administration.
Such policy shall provide for a recovery by the Master Servicer on behalf of the
Trust of insurance proceeds relating to such Mortgage Loan of not less than the
least of (i) the outstanding principal balance of the Mortgage Loan, (ii) the
minimum amount required to compensate for damage or loss on a replacement cost
basis and (iii) the maximum amount of insurance that is available under the
Flood Disaster Protection Act of 1973. The Master Servicer shall indemnify the
Trust and the Certificate Insurer out of the Master Servicer's own funds for any
loss to the Trust and the Certificate Insurer resulting from the Master
Servicer's failure to maintain the insurance required by this Section.
(c) In the event that the Master Servicer shall obtain and maintain
a blanket insurance policy insuring against fire and hazards and a master policy
insuring against flood for Properties located in designated flood zones of
extended coverage on all of the Mortgage Loans, then, to the extent such policy
names the Master Servicer as loss payee and provides coverage in an amount equal
to the aggregate unpaid principal
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balance on the Mortgage Loans without co-insurance, and otherwise complies with
the requirements of this Section 8.11, the Master Servicer shall be deemed
conclusively to have satisfied its obligations with respect to fire, flood and
hazard insurance coverage under this Section 8.11. Such policy may contain a
deductible clause, in which case the Master Servicer shall, in the event that
there shall not have been maintained on the related Property a policy complying
with paragraphs (a) and (b) of this Section 8.11, and there shall have been a
loss which would have been covered by such policy, deposit in the Principal and
Interest Account from the Master Servicer's own funds the difference, if any,
between the amount that would have been payable under a policy complying with
paragraphs (a) and (b) of this Section 8.11 and the amount paid under such
policy. Upon the request of the Trustee or the Certificate Insurer, the Master
Servicer shall cause to be delivered to the Trustee or the Certificate Insurer,
a certified true copy of such policy.
The parties hereto intend that the provisions of this Section 8.11
comply with Treasury Regulation Section 1.860G-2(c)(3)(ii).
SECTION 8.12 Due-on-Sale Clauses; Assumption and Substitution
Agreements. When a Property has been or is about to be conveyed by the
Mortgagor, the Master Servicer shall, to the extent it has knowledge of such
conveyance or prospective conveyance, exercise its rights to accelerate the
maturity of the related Mortgage Loan under any "due-on-sale" clause contained
in the related Mortgage or Note; provided, however, that the Master Servicer
shall not exercise any such right if (i) the "due-on-sale" clause, in the
reasonable belief of the Master Servicer, is not enforceable under applicable
law or (ii) the Master Servicer reasonably believes that to permit an assumption
of the Mortgage Loan would not materially and adversely affect the interest of
the Owners or of the Certificate Insurer. In such event, the Master Servicer
shall enter into an assumption and modification agreement with the person to
whom such property has been or is about to be conveyed, pursuant to which such
person becomes liable under the Note and, unless prohibited by applicable law or
the Mortgage Documents, the Mortgagor remains liable thereon. If the foregoing
is not permitted under applicable law, the Master Servicer is authorized to
enter into a substitution of liability agreement with such person, pursuant to
which the original Mortgagor is released from liability and such person is
substituted as Mortgagor and becomes liable under the Note; provided, however,
that to the extent any such substitution of liability agreement would be
delivered by the Master Servicer outside of its usual procedures for mortgage
loans held in its own portfolio the Master Servicer shall, prior to executing
and delivering such agreement, obtain the prior written consent of the Control
Party. The Mortgage Loan, as assumed, shall conform in all respects to the
requirements, representations and warranties of this Agreement. The Master
Servicer shall notify the Trustee that any such assumption or substitution
agreement has been completed by forwarding to the Trustee the original copy of
such assumption or substitution agreement, which copy shall be added by the
Trustee to the related Mortgage File and which shall, for all purposes, be
considered a part of such Mortgage File to the same extent as all other
documents and instruments constituting a part thereof. The Master Servicer shall
be responsible for recording or causing the recordation any such assumption or
substitution agreements. In connection with any such assumption or substitution
agreement, the required monthly payment on the related Mortgage Loan shall not
be changed but shall remain as in effect immediately prior to the assumption or
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substitution, the stated maturity or outstanding principal amount of such
Mortgage Loan shall not be changed nor shall any required monthly payments of
principal or interest be deferred or forgiven. Any fee collected by the Master
Servicer or the Sub-Servicer for consenting to any such conveyance or entering
into an assumption or substitution agreement shall be retained by or paid to the
Master Servicer as additional servicing compensation.
Notwithstanding the foregoing paragraph or any other provision of
this Agreement, the Master Servicer shall not be deemed to be in default, breach
or any other violation of its obligations hereunder by reason of any assumption
of a Mortgage Loan by operation of law or any assumption which the Master
Servicer may be restricted by law from preventing, for any reason whatsoever.
SECTION 8.13 Realization Upon Defaulted Mortgage Loans. (a) The
Master Servicer shall foreclose upon or otherwise comparably effect the
ownership on behalf of the Trust of Properties relating to defaulted Mortgage
Loans as to which no satisfactory arrangements can be made for collection of
Delinquent payments and which the Master Servicer has not purchased pursuant to
Section 8.10. In connection with such foreclosure or other conversion, the
Master Servicer shall exercise such of the rights and powers vested in it
hereunder, and use the same degree of care and skill in their exercise or use,
as prudent mortgage lenders would exercise or use under the circumstances in the
conduct of their own affairs, including, but not limited to, advancing funds for
the payment of taxes, amounts due with respect to Senior Liens, and insurance
premiums. Any amounts so advanced shall constitute "Servicing Advances" within
the meaning of Section 8.09(c) hereof. The Master Servicer shall sell any REO
Property within 35 months of its acquisition by the Trust, unless the Master
Servicer obtains for the Trustee an opinion of counsel experienced in federal
income tax matters, addressed to the Trustee, the Certificate Insurer and the
Master Servicer, to the effect that the holding by the Trust of such REO
Property for any greater period will not result in the imposition of taxes on
"Prohibited Transactions" of the Trust or any REMIC therein as defined in
Section 860F of the Code or cause either the Upper-Tier REMIC or the Lower-Tier
REMIC to fail to qualify as a REMIC under the REMIC Provisions at any time that
any Certificates are outstanding.
Notwithstanding the generality of the foregoing provisions, the
Master Servicer shall manage, conserve, protect and operate each REO Property
for the Owners and the Certificate Insurer solely for the purpose of its prompt
disposition and sale in a manner which does not cause such REO Property to fail
to qualify as "foreclosure property" within the meaning of Section 860G(a)(8) of
the Code or result in the receipt by the Upper-Tier REMIC or the Lower-Tier
REMIC of any "income from non-permitted assets" within the meaning of Section
860F(a)(2)(B) of the Code or any "net income from foreclosure property" which is
subject to taxation under the REMIC Provisions. Pursuant to its efforts to sell
such REO Property, the Master Servicer shall either itself or through an agent
selected by the Master Servicer protect and conserve such REO Property in the
same manner and to such extent as is customary in the locality where such REO
Property is located and may, incident to its conservation and protection of the
interests of the Owners, rent the same, or any part thereof, as the Master
Servicer deems to be in the best
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interest of the Owners for the period prior to the sale of such REO Property.
The Master Servicer shall take into account the existence of any hazardous
substances, hazardous wastes or solid wastes, as such terms are defined in the
Comprehensive Environmental Response Compensation and Liability Act, the
Resource Conservation and Recovery Act of 1976, or other federal, state or local
environmental legislation, on a REO Property in determining whether to foreclose
upon or otherwise comparably convert the ownership of such REO Property. With
respect to any Mortgage Loan secured by a mixed use REO Property, the Master
Servicer shall, prior to foreclosing upon or otherwise comparably effecting the
ownership in the name of the Master Servicer on behalf of the Trust, either (x)
perform a "phase one environmental study" of such REO Property or (y) repurchase
such REO Property at the Loan Purchase Price.
(b) The Master Servicer shall determine, with respect to each
defaulted Mortgage Loan, when it has recovered, whether through trustee's sale,
foreclosure sale or otherwise, all amounts it expects to recover from or on
account of such defaulted Mortgage Loan (exclusive of any possibility of a
deficiency judgment), whereupon such Mortgage Loan shall become a "Liquidated
Loan" and, if requested, shall promptly deliver to the Certificate Insurer a
related liquidation report with respect to such Liquidated Loan.
SECTION 8.14 Trustee to Cooperate; Release of Mortgage Files. (a)
Upon the payment in full of any Mortgage Loan (including the repurchase of any
Mortgage Loan or any liquidation of such Mortgage Loan through foreclosure or
otherwise), or the receipt by the Master Servicer or any Sub-Servicer of a
notification that payment in full will be escrowed in a manner customary for
such purposes, the Master Servicer or any Sub-Servicer shall deliver to the
Trustee a Master Servicer's Trust Receipt. Upon receipt of such Master
Servicer's Trust Receipt, the Trustee shall promptly release the related
Mortgage File, as directed by the Master Servicer in the Master Servicer's Trust
Receipt. Upon any such payment in full, or the receipt of such notification that
such funds have been placed in escrow, the Master Servicer or any Sub-Servicer
is authorized to give, as attorney-in-fact for the Trustee and the mortgagee
under the Mortgage which secured the Note, an instrument of satisfaction (or
assignment of Mortgage without recourse) regarding the Property relating to such
Mortgage, which instrument of satisfaction or assignment, as the case may be,
shall be delivered to the Person or Persons entitled thereto against receipt
therefor of payment in full, it being understood and agreed that no expense
incurred in connection with such instrument of satisfaction or assignment, as
the case may be, shall be chargeable to the Principal and Interest Account. In
lieu of executing any such satisfaction or assignment the Master Servicer or any
Sub-Servicer may prepare and submit to the Trustee, a satisfaction (or
assignment without recourse, if requested by the Person or Persons entitled
thereto) in form for execution by the Trustee with all requisite information
completed by the Master Servicer or any Sub-Servicer; in such event, the Trustee
shall execute and acknowledge such satisfaction or assignment and deliver the
same with the related Mortgage File, as aforesaid.
(b) From time to time and as appropriate in the servicing of any
Mortgage Loan, including, without limitation, foreclosure or other comparable
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conversion of a Mortgage Loan or collection under any applicable Mortgage
Insurance Policy, the Trustee shall (except in the case of the payment or
liquidation pursuant to which the related Mortgage File is released to an escrow
agent or an employee, agent or attorney of the Trustee), upon request of the
Master Servicer or any Sub-Servicer and delivery to the Trustee of a Master
Servicer's Trust Receipt, release the related Mortgage File to the Master
Servicer and shall execute such documents as shall be necessary to the
prosecution of any such proceedings, including, without limitation, an
assignment without recourse of the related Mortgage to the Master Servicer;
provided, that the Master Servicer shall not have received and not returned at
any one time more than 10% of the entire number of Mortgage Files. The Trustee
shall complete in the name of the Trustee any endorsement in blank on any Note
prior to releasing such Note to the Master Servicer or any Sub-Servicer. Such
receipt shall obligate the Master Servicer or any Sub-Servicer to return the
Mortgage File to the Trustee when the need therefor by the Master Servicer or
any Sub-Servicer no longer exists unless the Mortgage Loan shall be liquidated,
in which case, upon receipt of the liquidation information, in physical or
electronic form acceptable to the Master Servicer and the Trustee, a copy of the
Master Servicer's Trust Receipt shall be released by the Trustee to the Master
Servicer or any Sub-Servicer.
(c) No costs associated with the procedures described in this
Section 8.14 shall be an expense of the Trust.
(d) The provisions set forth in Subsections (a) and (b) may be
superseded by any waiver of the Document Delivery Requirement as may be given by
the Certificate Insurer and the Rating Agencies pursuant to Section 3.05(j)
hereof.
(e) Each Master Servicer's Trust Receipt may be delivered to the
Trustee (i) via mail or courier, (ii) via facsimile or (iii) by such other
means, including, without limitation, electronic or computer readable medium, as
the Master Servicer and the Trustee shall mutually agree. The Trustee shall
promptly release the related Mortgage File(s) no later than seven (7) business
days of receipt of a properly completed Master Servicer's Trust Receipt or such
shorter period as may be agreed upon by the Master Servicer and the Trustee.
Receipt of a Master Servicer's Trust Receipt shall be authorization to the
Trustee to release such Mortgage Files, provided the Trustee has determined that
such Master Servicer's Trust Receipt has been executed, with respect to clauses
(i) or (ii) above, or approved, with respect to clause (iii) above, by an
Authorized Officer of the Master Servicer or any Sub-Servicer, and so long as
the Trustee complies with its duties and obligations under this Agreement. If
the Trustee is unable to release the Mortgage Files within the time frames
previously specified, the Trustee shall immediately notify the Master Servicer
or any Sub-Servicer indicating the reason for such delay, but in no event shall
such notification be later than five business days after receipt of a Master
Servicer's Trust Receipt. If the Master Servicer is required to pay penalties or
damages due to the Trustee's negligent failure to release the related Mortgage
File or the Trustee's negligent failure to execute and release documents in a
timely manner, the Trustee shall be liable for such penalties or damages.
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SECTION 8.15 Servicing Compensation. As compensation for its
activities hereunder, the Master Servicer shall be entitled to retain the amount
of the Servicing Fee with respect to each Mortgage Loan. Additional servicing
compensation in the form of net investment income on the Principal and Interest
Account and on the Certificate Account, Prepayment Penalties (but only after the
Overcollateralization Amount has first reached the Specified
Overcollateralization Amount), release fees, bad check charges, assumption fees,
late payment charges, any other servicing-related fees, Net Liquidation Proceeds
not required to be deposited in the Principal and Interest Account pursuant to
Section 8.08(c)(v) and similar items may, to the extent collected from
Mortgagors, be retained by the Master Servicer.
SECTION 8.16 Annual Statement as to Compliance. The Master Servicer,
at its own expense, will deliver to the Trustee and the Certificate Insurer, on
or before the last day of March of each year, commencing in the year 2001, an
Officer's Certificate stating, as to each signer thereof, that (i) a review of
the activities of the Master Servicer during such preceding calendar year and of
performance under this Agreement has been made under such officers' supervision,
and (ii) to the best of such officers' knowledge, based on such review, the
Master Servicer has fulfilled all its obligations under this Agreement for such
year, or, if there has been a default in the fulfillment of all such
obligations, specifying each such default known to such officers and the nature
and status thereof including the steps being taken by the Master Servicer to
remedy such defaults.
SECTION 8.17 Annual Independent Certified Public Accountants'
Reports. On or before the last day of March of each year, commencing in the year
2001, the Master Servicer, at its own expense, shall cause to be delivered to
the Trustee and the Certificate Insurer a letter or letters of a firm of
independent, nationally recognized certified public accountants reasonably
acceptable to the Control Party stating that such firm has, with respect to the
Master Servicer's overall servicing operations (i) performed applicable tests in
accordance with the compliance testing procedures as set forth in Appendix 3 of
the Audit Guide for Audits of HUD Approved Nonsupervised Mortgagees or (ii)
examined such operations in accordance with the requirements of the Uniform
Single Attestation Program for Mortgage Bankers, and in either case stating such
firm's conclusions relating thereto or (iii) examined such operations in
accordance with the requirements of SAS 70.
SECTION 8.18 Access to Certain Documentation and Information
Regarding the Mortgage Loans. The Master Servicer shall provide to the Trustee
and the Certificate Insurer access to the documentation regarding the Mortgage
Loans required by applicable state and federal regulations, such access being
afforded without charge but only upon reasonable request and during normal
business hours at the offices of the Master Servicer.
SECTION 8.19 Assignment of Agreement. The Master Servicer may not
assign its obligations under this Agreement, in whole or in part, unless it
shall have first obtained the written consent of the Trustee and the Certificate
Insurer, which such consent shall not be unreasonably withheld; provided,
however, that any assignee must
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meet the eligibility requirements set forth in Section 8.20(g) hereof for a
successor servicer; and provided, further, this Section 8.19 does not apply to
the appointment of Sub-Servicers or to any assignment to a Master Servicer
Affiliate. Notice of any such assignment shall be given by the Master Servicer
to the Trustee, the Certificate Insurer, Standard & Poor's and Moody's.
SECTION 8.20 Removal of Master Servicer; Resignation of Master
Servicer. (a) The Trustee, with the consent of the Certificate Insurer (or the
Owners pursuant to Section 6.11 hereof) may remove the Master Servicer upon the
occurrence of any of the following events:
(i) The Master Servicer shall fail to deliver to the Trustee any
proceeds or required payment, which failure continues unremedied for five
Business Days following written notice to an Authorized Officer of the
Master Servicer from the Trustee or from any Owner.
(ii) The Master Servicer shall (A) apply for or consent to the
appointment of a receiver, trustee, liquidator or custodian or similar
entity with respect to itself or its property, (B) admit in writing its
inability to pay its debts generally as they become due, (C) make a
general assignment for the benefit of creditors, (D) be adjudicated a
bankrupt or insolvent, (E) commence a voluntary case under the federal
bankruptcy laws of the United States of America or file a voluntary
petition or answer seeking reorganization, an arrangement with creditors
or an order for relief or seeking to take advantage of any insolvency law
or file an answer admitting the material allegations of a petition filed
against it in any bankruptcy, reorganization or insolvency proceeding or
(F) take corporate action for the purpose of effecting any of the
foregoing;
(iii) If without the application, approval or consent of the Master
Servicer, a proceeding shall be instituted in any court of competent
jurisdiction, under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking in respect of the Master
Servicer an order for relief or an adjudication in bankruptcy,
reorganization, dissolution, winding up, liquidation, a composition or
arrangement with creditors, a readjustment of debts, the appointment of a
trustee, receiver, liquidator or custodian or similar entity with respect
to the Master Servicer or of all or any substantial part of its assets, or
other like relief in respect thereof under any bankruptcy or insolvency
law, and, if such proceeding is being contested by the Master Servicer in
good faith, the same shall (A) result in the entry of an order for relief
or any such adjudication or appointment or (B) continue undismissed or
pending and unstayed for any period of seventy-five (75) consecutive days;
or
(iv) The Master Servicer shall fail to perform any one or more of
its obligations hereunder other than the obligations contemplated by
Subsection 8.20(i) above, and shall continue in default thereof for a
period of sixty (60) days after notice by the Trustee or the Certificate
Insurer of said failure; provided, however, that if the Master Servicer
can demonstrate to the reasonable
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satisfaction of the Control Party that it is diligently pursuing remedial
action, then the cure period may be extended with the written approval of
the Control Party; or
(v) The Master Servicer shall fail to cure any breach of any of its
representations and warranties set forth in Section 3.02 which materially
and adversely affects the interests of the Owners or the Certificate
Insurer for a period of thirty (30) days after the Master Servicer's
discovery or receipt of notice thereof; provided, however, that if the
Master Servicer can demonstrate to the reasonable satisfaction of the
Control Party that it is diligently pursuing remedial action, then the
cure period may be extended with the written approval of the Control
Party.
(b) The Certificate Insurer also may remove the Master Servicer upon
the occurrence of any of the following events:
(i) upon the making of any Insured Payment; provided, however, that
the Certificate Insurer shall have no right to remove the Master Servicer
under this clause (i) if the Master Servicer can demonstrate to the
reasonable satisfaction of the Certificate Insurer that such event was due
to circumstances beyond the control of the Master Servicer; or
(ii) the failure by the Master Servicer to make any required
Servicing Advance; or
(iii) the failure by the Master Servicer to perform any one or more
of its obligations hereunder or under the Insurance Agreement, which
failure materially and adversely affects the interests of the Certificate
Insurer and the Trustee; or
(iv) the failure by the Master Servicer to make any required
Delinquency Advance, any Special Advance or to pay any Compensating
Interest; or
(v) the occurrence of a Servicer Termination Loss Trigger or of a
Servicer Termination Delinquency Trigger, as such terms are defined in the
Insurance Agreement; or
(vi) the enactment of any law by a legislative body that declares,
or any finding or ruling by a court of competent jurisdiction, that the
Insurance Agreement or this Agreement is not valid and binding on the
Sponsor or the Master Servicer;
provided, however, with respect to clause (iv), if the Master Servicer can
demonstrate to the reasonable satisfaction of the Control Party that any such
event was due to circumstances beyond the control of the Master Servicer, such
event shall not be considered an event of termination of the Master Servicer;
provided, however, that (x) prior to any removal of the Master Servicer by the
Control Party pursuant to clauses (i) or (ii) of this Section 8.20(b), the
Master Servicer shall first
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have been given by the Control Party and by registered or certified mail, notice
of the occurrence of one or more of the events set forth in clauses (i), (ii) or
(iii) above and the Master Servicer shall not have remedied, or shall not have
taken actions satisfactory to the Control Party to remedy, such event or events
within 30 days (60 days with respect to clause (iii)) after the Master
Servicer's receipt of such notice (provided, however, that if the Master
Servicer can demonstrate to the reasonable satisfaction of the Control Party
that it is diligently pursuing remedial action, then the cure period in each
case may be extended with the written approval of the Control Party) and (y) in
the event of the refusal or inability of the Master Servicer to make any
required Delinquency Advance or Special Advance or to pay any Compensating
Interest (as described in clause (iv)) or Monthly Remittance, such removal shall
be effective (without the requirement of any action on the part of the
Certificate Insurer or of the Trustee) at 4 p.m. on the second Business Day
following the day on which the Trustee or the Certificate Insurer notifies an
Authorized Officer of the Master Servicer that a required Delinquency Advance or
Special Advance has not been received by the Trustee. Upon the Trustee's
determination that a required Delinquency Advance or Special Advance or payment
of Compensating Interest has not been made by the Master Servicer, the Trustee
shall so notify in writing an Authorized Officer of the Master Servicer and the
Certificate Insurer as soon as is reasonably practical.
(c) The Master Servicer shall not resign from the obligations and
duties hereby imposed on it, except upon determination that its duties hereunder
are no longer permissible under applicable law or are in material conflict by
reason of applicable law with any other activities carried on by it, the other
activities of the Master Servicer so causing such a conflict being of a type and
nature carried on by the Master Servicer at the date of this Agreement. Any such
determination permitting the resignation of the Master Servicer shall be
evidenced by an opinion of counsel to such effect which shall be delivered to
the Trustee and the Certificate Insurer.
(d) No removal or resignation of the Master Servicer shall become
effective until the Trustee or a successor servicer shall have assumed the
Master Servicer's responsibilities and obligations in accordance with this
Agreement. If no successor servicer is available, the Trustee shall act as
successor servicer and perform all of the obligations of this Agreement,
including, without limitation, making Delinquency Advances, Servicing Advances
and paying Compensating Interest; provided, however, that the Trustee will not
be obligated to act as successor servicer if it is legally unable to perform its
duties hereunder.
(e) Upon removal or resignation of the Master Servicer, the Master
Servicer also shall promptly deliver or cause to be delivered to a successor
servicer or the Trustee all the books and records (including, without
limitation, records kept in electronic form) that the Master Servicer has
maintained for the Mortgage Loans, including all tax bills, assessment notices,
insurance premium notices and all other documents as well as all original
documents then in the Master Servicer's possession.
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(f) Any collections received by the Master Servicer after removal or
resignation shall be endorsed by it to the Trustee and remitted directly and
immediately to the Trustee or the successor Master Servicer.
(g) Upon removal or resignation of the Master Servicer, the Trustee
(x) may solicit bids for a successor servicer as described below, and (y)
pending the appointment of a successor Master Servicer as a result of soliciting
such bids, shall serve as Master Servicer. The Trustee shall, if it is unable to
obtain a qualifying bid and is prevented by law from acting as Master Servicer,
appoint, or petition a court of competent jurisdiction to appoint, any housing
and home finance institution, bank or mortgage servicing institution which has
shareholders' equity of not less than $10,000,000, as determined in accordance
with generally accepted accounting principles, and acceptable to the Certificate
Insurer as the successor to the Master Servicer hereunder in the assumption of
all or any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder. The compensation of any successor servicer (including,
without limitation, the Trustee) so appointed shall be the aggregate Servicing
Fees, together with the other servicing compensation in the form of assumption
fees, late payment charges or otherwise as provided in Sections 8.08 and 8.15;
provided, however, that if the Trustee acts as successor Master Servicer then
the Sponsor agrees to pay to the Trustee at such time that the Trustee becomes
such successor Master Servicer a fee of twenty-five dollars ($25.00) for each
Mortgage Loan then included in the Trust Estate. The Trustee shall be obligated
to serve as successor Master Servicer whether or not the $25.00 fee described in
the preceding sentence is paid by the Sponsor, but shall in any event be
entitled to receive, and to enforce payment of, such fee from the Sponsor.
(h) In the event the Trustee solicits bids as provided above, the
Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions meeting the
qualifications set forth above. Such public announcement shall specify that the
successor Master Servicer shall be entitled to the compensation set forth in
clause (g) above. Within thirty (30) days after any such public announcement,
the Trustee shall negotiate and effect the sale, transfer and assignment of the
servicing rights and responsibilities hereunder to the qualified party
submitting the highest satisfactory bid. The Trustee shall deduct from any sum
received by the Trustee from the successor to the Master Servicer in respect of
such sale, transfer and assignment all costs and expenses of any public
announcement and of any sale, transfer and assignment of the servicing rights
and responsibilities hereunder. After such deductions, the remainder of such sum
shall be paid by the Trustee to the Master Servicer at the time of such sale,
transfer and assignment to the Master Servicer's successor.
(i) The Trustee and such successor shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any such
succession. The Master Servicer agrees to cooperate with the Trustee and any
successor Master Servicer in effecting the termination of the Master Servicer's
servicing responsibilities and rights hereunder and shall promptly provide the
Trustee or such successor Master Servicer, as applicable, all documents and
records reasonably requested by it to enable it to assume the Master Servicer's
functions hereunder and shall promptly also transfer to the Trustee
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or such successor Master Servicer, as applicable, all amounts which then have
been or should have been deposited in the Principal and Interest Account by the
Master Servicer or which are thereafter received with respect to the Mortgage
Loans. Neither the Trustee nor any other successor Master Servicer shall be held
liable by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Master Servicer to deliver, or any delay in delivering, cash, documents or
records to it, or (ii) restrictions imposed by any regulatory authority having
jurisdiction over the Master Servicer or (iii) any breaches of a predecessor
Master Servicer.
(j) The Trustee or any other successor Master Servicer, upon
assuming the duties of Master Servicer hereunder, shall immediately make all
Delinquency Advances and pay all Compensating Interest which the Master Servicer
has theretofore failed to remit with respect to the Mortgage Loans; provided,
however, that if the Trustee is acting as successor Master Servicer, the Trustee
shall only be required to make Delinquency Advances (including the Delinquency
Advances required to be made by the predecessor Master Servicer but not so
deposited) if, in the Trustee's reasonable good faith judgment, such Delinquency
Advances will ultimately be recoverable from the related Mortgage Loans.
(k) The Master Servicer which is being removed or is resigning shall
give notice to the Mortgagors and to each Rating Agency of the transfer of the
servicing to the successor.
(l) The Trustee shall give notice to the Certificate Insurer, each
Rating Agency and to the Owners of the occurrence of any event specified in
Section 8.20(a) of which the Trustee has knowledge.
(m) Notwithstanding anything herein to the contrary, upon
termination of the Master Servicer hereunder, any liabilities of the Master
Servicer which accrued prior to such termination shall survive such termination.
SECTION 8.21 Inspections by the Certificate Insurer and the Trustee;
Errors and Omissions Insurance. (a) At any reasonable time during business hours
and from time to time upon five (5) Business Days' reasonable notice, the
Certificate Insurer, the Trustee, or any agents or representatives thereof may
inspect the Master Servicer's servicing operations and discuss the servicing
operations of the Master Servicer with any of its officers or directors. The
reasonable costs and expenses incurred by the Master Servicer in connection with
any such examinations or discussions shall be paid by the Master Servicer.
(b) The Master Servicer agrees to maintain errors and omissions
coverage and a fidelity bond, each at least to the extent generally maintained
by prudent mortgage loan servicers having servicing portfolios of a similar
size.
SECTION 8.22 Merger, Conversion, Consolidation or Succession to
Business of Master Servicer. Any corporation into which the Master Servicer may
be
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merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Master
Servicer shall be a party, or any corporation succeeding to all or substantially
all of the business of the Master Servicer, shall be the successor of the Master
Servicer hereunder upon notice to the Certificate Insurer (subject to the
requirements of Section 2.03 of the Insurance Agreement), without the execution
or filing of any paper or any further act on the part of any of the parties
hereto provided that such corporation is a housing and home finance institution,
bank or mortgage servicing institution which has shareholders' equity of not
less than $10,000,000, as determined in accordance with generally accepted
accounting principles.
SECTION 8.23 Notices of Material Events. The Master Servicer shall
give prompt notice to the Certificate Insurer, the Trustee, and each Rating
Agency of the occurrence of any of the following events:
(a) Any default or any fact or event which results, or which with
notice or the passage of time, or both, would result in the occurrence of
a default by the Sponsor or the Master Servicer under any Transaction
Document or would constitute a material breach of a representation,
warranty or covenant under any Transaction Document which would have a
material adverse effect on the Owners or the Certificate Insurer;
(b) The submission of any claim or the initiation of any legal
process, litigation or administrative or judicial investigation against
the Sponsor, the Master Servicer or AMHC in any federal, state or local
court or before any governmental body or agency, or before any arbitration
board, or any such proceedings threatened by any governmental agency,
which, if adversely determined, would have a material adverse effect upon
any the Sponsor's, the Master Servicer's or AMHC's ability to perform its
obligations under any Transaction Document;
(c) The commencement of any proceedings by or against the Sponsor,
the Master Servicer or AMHC under any applicable bankruptcy,
reorganization, liquidation, insolvency or other similar law now or
hereafter in effect or of any proceeding in which a receiver, liquidator,
trustee or other similar official shall have been, or may be, appointed or
requested for the Sponsor, the Master Servicer or AMHC; and
(d) The receipt of notice from any agency or governmental body
having authority over the conduct of any of the Sponsor's the Master
Servicer's or the AMHC's business that the Sponsor, the Master Servicer or
AMHC is to cease and desist, or to undertake any practice, program,
procedure or policy employed by the Sponsor, the Master Servicer or AMHC
in the conduct of the business of any of them, and such cessation or
undertaking will materially adversely affect the conduct of the Sponsor's,
the Master Servicer's or AMHC's business or its ability to perform under
the Transaction Documents or materially adversely affect the financial
affairs of the Sponsor, the Master Servicer or AMHC.
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ARTICLE IX
TERMINATION OF TRUST
SECTION 9.01 Termination of Trust. The Trust created hereunder and
all obligations created by this Agreement will terminate upon the earlier of (i)
the payment to the Owners of all Certificates from amounts other than those
available under the Certificate Insurance Policy of all amounts held by the
Trustee and required to be paid to such Owners pursuant to this Agreement upon
the later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust Estate or (b)
the disposition of all property acquired in respect of any Mortgage Loan
remaining in the Trust Estate, (ii) at any time when a Qualified Liquidation of
the REMIC Trust is effected as described below or (iii) as described in Section
9.02 or 9.03 hereof. To effect a termination of this Agreement pursuant to
clause (ii) above, the Owners of all Certificates then Outstanding shall (x)
unanimously direct the Trustee on behalf of the Upper-Tier REMIC and the
Lower-Tier REMIC to adopt a plan of complete liquidation with respect to each of
the Mortgage Loans as contemplated by Section 860F(a)(4) of the Code and (y)
provide to the Trustee an opinion of counsel experienced in federal income tax
matters to the effect that such liquidation constitutes a Qualified Liquidation,
and the Trustee either shall sell the Mortgage Loans and distribute the proceeds
of the liquidation of the Trust Estate, or shall distribute equitably in kind
all of the assets of the Trust Estate to the remaining Owners of the
Certificates based on their interests in the Trust, and distribute to the
Certificate Insurer any amounts owed under the Insurance Agreement and return
the Certificate Insurance Policy to the Certificate Insurer, each in accordance
with such plan, so that the liquidation or distribution of the Trust Estate, the
distribution of any proceeds of the liquidation and the termination of this
Agreement occur no later than the close of the 90th day after the date of
adoption of the plan of liquidation and such liquidation qualifies as a
Qualified Liquidation. In no event, however, will the Trust created by this
Agreement continue beyond the expiration of twenty-one (21) years from the death
of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the United Kingdom, living on the date
hereof. The Trustee shall give written notice of termination of the Agreement to
each Owner in the manner set forth in Section 11.05.
SECTION 9.02 Clean-Up Call Termination. (a) On any Remittance Date
on or after the Initial Clean-Up Call Date, either the Master Servicer or any
Master Servicer Affiliate (the Master Servicer or any Master Servicer Affiliate,
the "Redeeming Party") may determine to purchase and may cause the purchase from
the Trust of all (but not fewer than all) Mortgage Loans in the Trust Estate and
all property theretofore acquired in respect of any such Mortgage Loan by
foreclosure, deed in lieu of foreclosure, or otherwise then remaining in the
Trust Estate at a price equal to the sum of (v) the greater of (i) 100% of the
aggregate Loan Balances of all of the Mortgage Loans as of the day of purchase
minus the amount actually remitted by the Master Servicer representing the
Principal Remittance Amount on such Remittance Date for the related Remittance
Period and (ii) the fair market value of such Mortgage Loans (disregarding
accrued interest), (w) if the Master Servicer is the Redeeming Party, the amount
of any
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difference between Interest Remittance Amount actually remitted by the Master
Servicer on such Remittance Date and the related amount due on such Remittance
Date, (x) the related Reimbursement Amount, if any, and (y) if the Master
Servicer is the Redeeming Party, the aggregate amount of any Delinquency
Advances and Servicing Advances remaining unreimbursed, together with any
accrued and unpaid Servicing Fees, as of such Remittance Date (such amount, the
"Termination Price"); provided, that the Certificate Insurer must consent to any
such purchase if it would result in a draw on the Certificate Insurance Policy.
In connection with such purchase, the Redeeming Party shall remit to the Trustee
all amounts then on deposit in the Principal and Interest Account for deposit to
the Certificate Account, which deposit shall be deemed to have occurred
immediately preceding such purchase. Notwithstanding the foregoing, the
Redeeming Party may not terminate the Trust pursuant to this Section 9.02
without the consent of the Certificate Insurer, if termination would result in a
draw on the Certificate Insurance Policy.
(b) In connection with any such purchase, the Redeeming Party shall
provide to the Trustee an opinion of counsel experienced in federal income tax
matters to the effect that such purchase constitutes a Qualified Liquidation of
the Upper-Tier REMIC and the Lower-Tier REMIC.
(c) Promptly following any such purchase, the Trustee will release
the Mortgage Files to the Redeeming Party, or otherwise upon their order, in a
manner similar to that described in Section 8.14 hereof.
(d) Upon such purchase, the Certificate Insurance Policy will
terminate and shall be returned to the Certificate Insurer.
SECTION 9.03 Termination Upon Loss of REMIC Status. (a) Following a
(x) final determination by the Internal Revenue Service, or by a court of
competent jurisdiction, in either case from which no appeal is taken within the
permitted time for such appeal, or (y) if any appeal is taken, following a final
determination of such appeal from which no further appeal can be taken, to the
effect that either the Upper-Tier REMIC or the Lower-Tier REMIC does not and
will no longer qualify as a REMIC pursuant to Section 860D of the Code (the
"Final Determination") or (z) following the delivery to the Trustee and the
Certificate Insurer of an opinion of counsel ("REMIC Opinion") to the effect
that the effect of the Final Determination is to increase substantially the
probability that either the Upper-Tier REMIC or the Lower-Tier REMIC will no
longer qualify as a "REMIC" pursuant to Section 860D of the Code, on any
Remittance Date on or after the date which is 30 calendar days following such
Final Determination, the Certificate Insurer, or if Certificate Insurer Default
has occurred and is continuing, the Owners of a majority in Percentage Interest
represented by the Class A Certificates then Outstanding may direct the Trustee
to adopt a plan of complete liquidation with respect to the Trust Estate. In
connection with such liquidation, the Master Servicer shall remit to the Trustee
all amounts then on deposit in the Principal and Interest Account for deposit in
the Certificate Account, which deposit shall be deemed to have occurred
immediately preceding such liquidation.
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(b) Upon receipt of such direction from the Certificate Insurer or
the Owners of such Class R-II Certificates, as applicable, the Trustee shall
notify the Master Servicer and holders of the Class R-II Certificates of such
election to liquidate or such determination to purchase, as the case may be,
(the "Termination Notice"). The Master Servicer or Owner of a majority of the
Percentage Interest of the Class R Certificates then Outstanding acting directly
or through one or more of their affiliates may, on any Remittance Date, within
60 days from the date of receipt of the Termination Notice (the "Purchase Option
Period"), at their option, purchase from the Trust all (but not fewer than all)
Mortgage Loans in the Trust Estate, and all property theretofore acquired by
foreclosure, deed in lieu of foreclosure, or otherwise in respect of any
Mortgage Loan then remaining in the Trust Estate at a purchase price equal to
the Termination Price.
(c) If, during the Purchase Option Period, the Master Servicer or
the Owners of the Class R-II Certificates have not exercised the option
described in the immediately preceding paragraph, then upon the expiration of
the Purchase Option Period in the event that the Owners of the Class A
Certificates have given the Trustee the direction described in clause (a) above,
the Trustee shall (with the prior consent of the Certificate Insurer, so long as
no Certificate Insurer Default has occurred and is continuing) sell the Mortgage
Loans and distribute the proceeds of the liquidation of the Trust Estate, such
that, if so directed, the liquidation of the Trust Estate, the distribution of
the proceeds of such liquidation occur no later than the close of the 60th day,
or such later day as the Owner of a majority of the Percentage Interest of the
Class A Certificates shall permit or direct in writing, after the expiration of
the Purchase Option Period.
(d) Following a Final Determination, the Owners of a majority of the
Percentage Interest of the Class R-II Certificates then Outstanding may, at
their option on any Remittance Date and upon delivery to the Owners of the Class
A Certificates and the Trustee of an opinion of counsel experienced in federal
income tax matters selected by the Owners of a majority of the Percentage
Interest of such Class R-II Certificates which opinion shall be reasonably
satisfactory in form and substance to a majority of the Percentage Interests
represented by the Class A Certificates then Outstanding and the Trustee, to the
effect that the effect of the Final Determination is to increase substantially
the probability that the gross income of either the Upper-Tier REMIC or the
Lower-Tier REMIC will be subject to federal taxation, purchase from the Trust
all (but not fewer than all) Mortgage Loans in the Trust Estate, and all
property theretofore acquired by foreclosure, deed in lieu of foreclosure, or
otherwise in respect of any Mortgage Loan then remaining in the Trust Estate at
a purchase price equal to the Termination Price. In connection with such
purchase, the Master Servicer shall remit to the Trustee all amounts then on
deposit in the Principal and Interest Account for deposit to the Certificate
Account, which deposit shall be deemed to have occurred immediately preceding
such purchase. The foregoing opinion shall be deemed satisfactory unless the
Owners of a majority of the Percentage Interest represented by the Class A
Certificates then Outstanding or the Trustee give the Owners of a majority of
the Percentage Interest of the Class R-II Certificates notice that such opinion
is not satisfactory within thirty days after receipt of such opinion.
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SECTION 9.04 Disposition of Proceeds. The Trustee shall, upon
receipt thereof, deposit the proceeds of any liquidation of the Trust Estate
pursuant to this Article IX to the Certificate Account; provided, however, that
any amounts representing Servicing Fees, unreimbursed Delinquency Advances or
unreimbursed Servicing Advances theretofore funded by the Master Servicer from
the Master Servicer's own funds shall be paid by the Trustee to the Master
Servicer.
SECTION 9.05 Netting of Amounts. If any Person paying the
Termination Price would receive a portion of the amount so paid, such Person may
net any such amount against the Termination Price otherwise payable.
ARTICLE X
THE TRUSTEE
SECTION 10.01 Certain Duties and Responsibilities. (a) The Trustee
(i) undertakes to perform such duties and only such duties as are specifically
set forth in this Agreement, and no implied covenants or obligations shall be
read into this Agreement against the Trustee and (ii) in the absence of bad
faith on its part, may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished pursuant to and conforming to the requirements of this Agreement; but
in the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, shall be under a duty
to examine the same to determine whether or not they conform to the requirements
of this Agreement.
(b) Notwithstanding the appointment of the Master Servicer
hereunder, the Trustee is hereby empowered to perform the duties of the Master
Servicer hereunder whether following the failure of the Master Servicer to
perform, pursuant to Section 8.20 hereof or otherwise. Specifically, and not in
limitation of the foregoing, the Trustee shall have the power:
(i) to collect Mortgagor payments;
(ii) to foreclose on defaulted Mortgage Loans;
(iii) to enforce due-on-sale clauses and to enter into assumption
and substitution agreements as permitted by Section 8.12 hereof;
(iv) to deliver instruments of satisfaction pursuant to Section
8.14;
(v) to make Delinquency Advances and Servicing Advances and to pay
Compensating Interest, and
(vi) to enforce the Mortgage Loans.
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(c) No provision of this Agreement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by an Authorized Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Certificate Insurer or of the Owners of a majority in
Percentage Interest of the Certificates of the affected Class or Classes
and the Certificate Insurer relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Agreement relating to such Certificates.
(d) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(f) The permissive right of the Trustee to take actions enumerated
in this Agreement shall not be construed as a duty and the Trustee shall not be
answerable for other than its own negligence or willful misconduct.
(g) The Trustee shall be under no obligation to institute any suit,
or to take any remedial proceeding under this Agreement, or to take any steps in
the execution of the trusts hereby created or in the enforcement of any rights
and powers hereunder until it shall be indemnified to its satisfaction against
any and all costs and expenses, outlays and counsel fees and other reasonable
disbursements and against all liability, except liability which is adjudicated
to have resulted from its negligence or willful misconduct, in connection with
any action so taken. The Trustee shall receive from the Sponsor promptly upon
demand therefor, reimbursement of expenses as are described in the fee quote
letter, dated July 24, 2000 and executed by the Sponsor.
SECTION 10.02 Removal of Trustee for Cause. (a) The Trustee may be
removed pursuant to paragraph (b) hereof upon the occurrence of any of the
following events (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or
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order of any court or any order, rule or regulation of any administrative or
governmental body):
(i) the Trustee shall fail to distribute to the Owners entitled
thereto on any Payment Date amounts available for distribution in
accordance with the terms hereof; or
(ii) the Trustee shall fail in the performance of, or breach, any
covenant or agreement of the Trustee in this Agreement, or if any
representation or warranty of the Trustee made in this Agreement or in any
certificate or other writing delivered pursuant hereto or in connection
herewith shall prove to be incorrect in any material respect as of the
time when the same shall have been made, and such failure or breach shall
continue or not be cured for a period of 30 days after there shall have
been given, by registered or certified mail, to the Trustee by the
Sponsor, the Certificate Insurer or by the Owners of at least 25% of the
aggregate Percentage Interests represented by the Class A Certificates
then Outstanding a written notice specifying such failure or breach and
requiring it to be remedied; or
(iii) a decree or order of a court or agency or supervisory
authority having jurisdiction for the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Trustee, and such decree or order shall have remained in force
undischarged or unstayed for a period of 75 days; or
(iv) a conservator or receiver or liquidator or sequestrator or
custodian of the property of the Trustee is appointed in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to the Trustee or relating to all or
substantially all of its property; or
(v) the Trustee shall become insolvent (however insolvency is
evidenced), generally fail to pay its debts as they come due, file or
consent to the filing of a petition to take advantage of any applicable
insolvency or reorganization statute, make an assignment for the benefit
of its creditors, voluntarily suspend payment of its obligations, or take
corporate action for the purpose of any of the foregoing.
The Sponsor shall give to the Certificate Insurer and each Rating
Agency notice of the occurrence of any such event of which the Sponsor is aware.
(b) If any event described in paragraph (a) occurs and is
continuing, then and in every such case (i) the Certificate Insurer or (ii) with
the prior written consent (which shall not be unreasonably withheld) of the
Certificate Insurer (x) the Sponsor or (y) the Owners of a majority of the
Percentage Interests represented by the Class A Certificates, or, if there are
no Class A Certificates then Outstanding, by such Percentage Interest
represented by any Class of Class R Certificates then Outstanding may, whether
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or not the Trustee resigns pursuant to Section 10.09 hereof, immediately,
concurrently with the giving of notice to the Trustee, and without delaying the
30 days required for notice therein, appoint a successor Trustee pursuant to the
terms of Section 10.09 hereof.
SECTION 10.03 Certain Rights of the Trustee. Except as otherwise
provided in Section 10.01 hereof:
(a) the Trustee may request and rely upon and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Sponsor, the Certificate Insurer
or the Owners of any Class of Certificates mentioned herein shall be
sufficiently evidenced in writing;
(c) whenever in the administration of this Agreement the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel, and the written advice of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reasonable reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement at the request or
direction of any of the Owners pursuant to this Agreement, unless such
Owners shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, note or other paper or document, but the Trustee in its discretion
may make such further inquiry or investigation into such facts or matters
as it may see fit;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed and supervised
with due care by it hereunder; and
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(h) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized by the
Authorized Officer of any Person or within its rights or powers under this
Agreement other than as to validity and sufficiency of its authentication
of the Certificates.
SECTION 10.04 Not Responsible for Recitals or Issuance of
Certificates. The recitals contained herein and in the Certificates, except any
such recitals relating to the Trustee, shall be taken as the statements of the
Sponsor and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representation as to the validity or sufficiency of this
Agreement or of the Certificates other than as to validity and sufficiency of
its authentication of the Certificates.
SECTION 10.05 May Hold Certificates. The Trustee or any agent of the
Trust, in its individual or any other capacity, may become an Owner or pledgee
of Certificates and may otherwise deal with the Trust with the same rights it
would have if it were not Trustee or such agent.
SECTION 10.06 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other trust funds except to the
extent required herein or required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Sponsor and except to the extent of income or other gain on
investments which are deposits in or certificates of deposit of the Trustee in
its commercial capacity and income or other gain actually received by the
Trustee on Eligible Investments.
SECTION 10.07 No Lien for Fees. The Trustee shall have no lien on
the Trust Estate for the payment of any fees and expenses.
SECTION 10.08 Corporate Trustee Required; Eligibility. There shall
at all times be a Trustee hereunder which shall be a corporation or association
organized and doing business under the laws of the United States of America or
of any State authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $100,000,000, subject to
supervision or examination by the United States of America or any such State
having a rating or ratings acceptable to the Certificate Insurer or, if the last
sentence of Section 11.18 hereof is applicable, the Sponsor and having (x)
long-term, unsecured debt rated at least A-1 by Moody's (or such lower rating as
may be acceptable to Moody's) and (y) a short-term deposit rating of at least
A-1 from Standard & Poor's (or such lower rating as may be acceptable to
Standard & Poor's). If such Trustee publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation or association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall, upon the request of
the Sponsor (with the consent of the Certificate Insurer) (which consent shall
not be unreasonably withheld) or of the Certificate Insurer, resign immediately
in the manner and with the effect hereinafter specified in this Article X.
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SECTION 10.09 Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
trustee pursuant to this Article X shall become effective until the acceptance
of appointment by the successor trustee under Section 10.10 hereof.
(b) The Trustee, or any trustee or trustees hereafter appointed, may
resign at any time by giving written notice of resignation to the Sponsor and by
mailing notice of resignation by first-class mail, postage prepaid, to the
Certificate Insurer and the Owners at their addresses appearing on the Register.
A copy of such notice shall be sent by the resigning Trustee to each Rating
Agency. Upon receiving notice of resignation, the Sponsor shall promptly appoint
a successor trustee or trustees by written instrument, in duplicate, executed on
behalf of the Trust by an Authorized Officer of the Sponsor, one copy of which
instrument shall be delivered to the Trustee so resigning and one copy to the
successor trustee or trustees. If no successor trustee shall have been appointed
and have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Owner may, on
behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(c) If at any time the Trustee shall cease to be eligible under
Section 10.08 hereof and shall fail to resign after written request therefor by
the Sponsor or by the Certificate Insurer, the Certificate Insurer or the
Sponsor (with the written consent of the Certificate Insurer) may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate,
executed on behalf of the Trust by an Authorized Officer of the Sponsor, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
(d) The Owners of a majority of the Percentage Interests represented
by the Class A Certificates, or, if there are no Class A Certificates then
Outstanding, by such majority of the Percentage Interests represented by Class R
Certificates then Outstanding may at any time, with the prior written consent of
the Certificate Insurer, remove the Trustee and appoint a successor trustee by
delivering to the Trustee to be removed, to the successor trustee so appointed,
to the Sponsor and to the Certificate Insurer, copies of the record of the act
taken by the Owners, as provided for in Section 11.03 hereof.
(e) If the Trustee fails to perform its duties in accordance with
the terms of this Agreement or becomes ineligible to serve as Trustee, the
Certificate Insurer or, if the last sentence of Section 11.18 hereof is
applicable, the Sponsor may remove the Trustee and appoint a successor trustee
by written instrument, in triplicate, signed by the Certificate Insurer and the
Sponsor duly authorized, one complete set of which instruments shall be
delivered to the Sponsor, one complete set to the Certificate Insurer, one
complete set to the Trustee so removed and one complete set to the successor
Trustee so appointed.
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(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
the Sponsor shall promptly appoint a successor Trustee acceptable to the
Certificate Insurer. If within one year after such resignation, removal or
incapability or the occurrence of such vacancy, a successor Trustee shall be
appointed by act of the Owners of a majority of the Percentage Interests
represented by the Class A Certificates then Outstanding or, if there are no
Class A Certificates then Outstanding, by such majority of the Percentage
Interest of the Class R Certificates delivered to the Sponsor and the retiring
Trustee, the successor Trustee so appointed shall forthwith upon its acceptance
of such appointment become the successor Trustee and supersede the successor
Trustee appointed by the Sponsor. If no successor Trustee shall have been so
appointed by the Sponsor or the Owners and shall have accepted appointment in
the manner hereinafter provided, any Owner may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(g) The Sponsor shall give notice of any removal of the Trustee by
mailing notice of such event by first-class mail, postage prepaid, to the
Certificate Insurer and to the Owners as their names and addresses appear in the
Register. Each notice shall include the name of the successor Trustee and the
address of its corporate trust office.
SECTION 10.10 Acceptance of Appointment by Successor Trustee. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Sponsor on behalf of the Trust and to its predecessor Trustee an instrument
accepting such appointment hereunder and stating its eligibility to serve as
Trustee hereunder, and thereupon the resignation or removal of the predecessor
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts, duties and obligations of its predecessor hereunder; but, on request of
the Sponsor or the successor Trustee, such predecessor Trustee shall, upon
payment of its charges then unpaid, execute and deliver an instrument
transferring to such successor Trustee all of the rights, powers and trusts of
the Trustee so ceasing to act, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such Trustee so ceasing to
act hereunder. Upon request of any such successor Trustee, the Sponsor on behalf
of the Trust shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the Sponsor shall mail notice thereof by first-class mail, postage
prepaid, to the Owners at their last addresses appearing upon the Register. The
Sponsor shall send a copy of such notice to each of the Rating Agencies and the
Certificate Insurer. If the Sponsor fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, the successor Trustee
shall cause such notice to be mailed at the expense of the Trust.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor shall be qualified and eligible under this
Article X.
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SECTION 10.11 Merger, Conversion, Consolidation or Succession to
Business of the Trustee. Any corporation or association into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
association succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such corporation or
association shall be otherwise qualified and eligible under this Article X. In
case any Certificates have been executed, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such Trustee
may adopt such execution and deliver the Certificates so executed with the same
effect as if such successor Trustee had itself executed such Certificates.
SECTION 10.12 Reporting; Withholding. With respect to each of the
REMIC Trusts and the Non-REMIC Estate, the Trustee shall timely provide to the
Owners (or other Persons entitled thereto) the Internal Revenue Service's Form
1099 and any other statement required by applicable Treasury regulations or
analogous provisions of state or local law as determined by the Sponsor, and
shall withhold, as required by applicable law, federal, state or local taxes, if
any, applicable to distributions to the Owners, including, but not limited to,
backup withholding under Section 3406 of the Code, the withholding tax on
distributions to foreign investors under Sections 1441 and 1442 of the Code and
beginning after December 31, 2000, shall report as effectively connected income
distributions with respect to Supplemental Interest Rights held by foreign
holders if such holders have not provided certification that such distributions
are not effectively connected income.
SECTION 10.13 Liability of the Trustee. The Trustee shall be liable
in accordance herewith only to the extent of the obligations specifically
imposed upon and undertaken by the Trustee herein. Neither the Trustee nor any
of the directors, officers, employees or agents of the Trustee shall be under
any liability on any Certificate or otherwise to any Account, the Sponsor, the
Master Servicer, the Certificate Insurer or any Owner for any action taken or
for refraining from the taking of any action in good faith pursuant to this
Agreement, or for errors in judgment; provided, however, that this provision
shall not protect the Trustee or any such Person against any liability which
would otherwise be imposed by reason of negligent action, negligent failure to
act or bad faith in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. Subject to the foregoing sentence, the
Trustee shall not be liable for losses on investments of amounts in any Account
(except for any losses on obligations on which the bank serving as Trustee is
the obligor and is otherwise liable). In addition, the Sponsor and Master
Servicer covenant and agree to indemnify the Trustee, and its officers,
directors, employees and agents, including, without limitation, when the Trustee
is acting as Master Servicer, and hold it harmless against, any and all losses,
liabilities, damages, claims or expenses (including legal fees and expenses)
other than those resulting from the negligence or bad faith of the Trustee. The
indemnification provided in this Section 10.13 shall survive the termination of
this Agreement or the resignation or removal of the Trustee hereunder. The
Trustee and any director, officer, employee or
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agent of the Trustee may rely and shall be protected in acting or refraining
from acting in good faith on any certificate, notice or other document of any
kind prima facie properly executed and submitted by the Authorized Officer of
any Person respecting any matters arising hereunder.
SECTION 10.14 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or Property may at the time be located, the Master Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
and the Certificate Insurer to act as co-Trustee or co-Trustees, jointly with
the Trustee, of all or any part of the Trust Estate or separate Trustee or
separate Trustees of any part of the Trust Estate, and to vest in such Person or
Persons, in such capacity and for the benefit of the Owners, such title to the
Trust Estate, or any part thereof, and, subject to the other provisions of this
Section 10.14, such powers, duties, obligations, rights and trusts as the Master
Servicer and the Trustee may consider necessary or desirable. If the Master
Servicer shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in the case any event indicated in
Sections 8.20(a) or 8.20(b) shall have occurred and be continuing, the Trustee
alone shall have the power to make such appointment with the consent of the
Certificate Insurer. No co-Trustee or separate Trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
10.08 and no notice to Owner of the appointment of any co-Trustee or separate
Trustee shall be required under Section 10.08.
Every separate Trustee and co-Trustee shall, to the extent
permitted, be appointed and act subject to the following provisions and
conditions:
(i) All rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate Trustee or co-Trustee jointly
(it being understood that such separate Trustee or co-Trustee is not
authorized to act separately without the Trustee joining in such act),
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the Master Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Trust Estate or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate Trustee or
co-Trustee, but solely at the direction of the Trustee;
(ii) No co-Trustee hereunder shall be held personally liable by
reason of any act or omission of any other co-Trustee hereunder; and
(iii) The Master Servicer and the Trustee acting jointly may at any
time accept the resignation of or remove any separate Trustee or
co-Trustee.
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Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate Trustees and co-Trustees,
as effectively as if given to each of them. Every instrument appointing any
separate Trustee or co-Trustee shall refer to this Agreement and the conditions
of this Section 10.14. Each separate Trustee and co-Trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to the
Master Servicer.
Any separate Trustee or co-Trustee may, at any time, constitute the
Trustee, its agent or attorney-in-fact, with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate Trustee or co-Trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
The Trustee shall give to the Rating Agencies, the Sponsor and the
Certificate Insurer notice of the appointment of any Co-Trustee or separate
Trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Compliance Certificates and Opinions. Upon any
application or request by the Sponsor, the Certificate Insurer or the Owners to
the Trustee to take any action under any provision of this Agreement, the
Sponsor, the Certificate Insurer or the Owners, as the case may be, shall
furnish to the Trustee a certificate stating that all conditions precedent, if
applicable, provided for in this Agreement relating to the proposed action have
been complied with, except that in the case of any such application or request
as to which the furnishing of any documents is specifically required by any
provision of this Agreement relating to such particular application or request,
no additional certificate need be furnished.
SECTION 11.02 Form of Documents Delivered to the Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate of an Authorized Officer of the Trustee may be
based, insofar as it relates to legal matters, upon an opinion of counsel,
unless such Authorized Officer knows, or in the exercise of reasonable care
should know, that the opinion is
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erroneous. Any such certificate of an Authorized Officer of the Trustee or any
opinion of counsel may be based, insofar as it relates to factual matter upon a
certificate or opinion of, or representations by, one or more Authorized
Officers of the Sponsor or of the Master Servicer, stating that the information
with respect to such factual matters is in the possession of the Sponsor or of
the Master Servicer, unless such Authorized Officer or counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous. Any opinion of
counsel may also be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an Authorized Officer of the
Trustee, stating that the information with respect to such matters is in the
possession of the Trustee, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous. Any opinion of counsel may be based
on the written opinion of other counsel, in which event such opinion of counsel
shall be accompanied by a copy of such other counsel's opinion and shall include
a statement to the effect that such counsel believes that such counsel and the
Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
SECTION 11.03 Acts of Owners. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Agreement to be given or taken by the Owners may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Owners in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
hereby expressly required, to the Sponsor and/or the Certificate Insurer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "act" of the Owners signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee and the Trust, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Whenever
such execution is by an officer of a corporation or a member of a partnership on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority.
(c) The ownership of Certificates shall be proved by the Register.
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(x) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Owner of any Certificate shall bind the Owner of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, omitted or
suffered to be done by the Trustee or the Trust in reliance thereon, whether or
not notation of such action is made upon such Certificates.
SECTION 11.04 Notices, etc., to Trustee. Any request, demand,
authorization, direction, notice, consent, waiver or act of the Owners or other
documents provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with the Trustee by any Owner, the Certificate Insurer or
by the Sponsor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to and received by the Trustee at its corporate
trust office as set forth in Section 2.02 hereof.
SECTION 11.05 Notices and Reports to Owners; Waiver of Notices.
Where this Agreement provides for notice to Owners of any event or the mailing
of any report to Owners, such notice or report shall be sufficiently given
(unless otherwise herein expressly provided) if mailed, first-class postage
prepaid, to each Owner affected by such event or to whom such report is required
to be mailed, at the address of such Owner as it appears on the Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice or the mailing of such report. In any case where a
notice or report to Owners is mailed in the manner provided above, neither the
failure to mail such notice or report nor any defect in any notice or report so
mailed to any particular Owner shall affect the sufficiency of such notice or
report with respect to other Owners, and any notice or report which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given or provided.
Where this Agreement provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Owners shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Owners when such notice is required to be given
pursuant to any provision of this Agreement, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Agreement provides for notice to any rating agency that
rated any Certificates, failure to give such notice shall not affect any other
rights or obligations created hereunder.
SECTION 11.06 Rules by Trustee and Sponsor. The Trustee may make
reasonable rules for any meeting of Owners. The Sponsor may make reasonable
rules and set reasonable requirements for its functions.
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SECTION 11.07 Successors and Assigns. All covenants and agreements
in this Agreement by any party hereto shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.08 Severability. In case any provision in this Agreement
or in the Certificates shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 11.09 Benefits of Agreement. Nothing in this Agreement or in
the Certificates, expressed or implied, shall give to any Person, other than the
Owners, the Certificate Insurer and the parties hereto and their successors
hereunder, any benefit or any legal or equitable right, remedy or claim under
this Agreement.
SECTION 11.10 Legal Holidays. In any case where the date of any
Payment Date, any other date on which any distribution to any Owner is proposed
to be paid, or any date on which a notice is required to be sent to any Person
pursuant to the terms of this Agreement shall not be a Business Day, then
(notwithstanding any other provision of the Certificates or this Agreement)
payment or mailing need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made or mailed on
the nominal date of any such Payment Date, or such other date for the payment of
any distribution to any Owner or the mailing of such notice, as the case may be,
and no interest on such payment shall accrue for the period from and after any
such nominal date, provided such payment is made in full on such next succeeding
Business Day.
SECTION 11.11 Governing Law. In view of the fact that Owners are
expected to reside in many states and outside the United States and the desire
to establish with certainty that this Agreement will be governed by and
construed and interpreted in accordance with the law of a state having a
well-developed body of commercial and financial law relevant to transactions of
the type contemplated herein, this Agreement and each Certificate shall be
construed in accordance with and governed by the laws of the State of New York
applicable to agreements made and to be performed therein.
SECTION 11.12 Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.13 Usury. The amount of interest payable or paid on any
Certificate under the terms of this Agreement shall be limited to an amount
which shall not exceed the maximum nonusurious rate of interest allowed by the
applicable laws of the State of New York or any applicable law of the United
States permitting a higher maximum nonusurious rate that preempts such
applicable New York laws, which could lawfully be contracted for, charged or
received (the "Highest Lawful Rate"). In the event any payment of interest on
any Certificate exceeds the Highest Lawful Rate, the Trust stipulates that such
excess amount will be deemed to have been paid to the Owner of such Certificate
as a result of an error on the part of the Trustee acting on behalf of the Trust
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and the Owner receiving such excess payment shall promptly, upon discovery of
such error or upon notice thereof from the Trustee on behalf of the Trust,
refund the amount of such excess or, at the option of such Owner, apply the
excess to the payment of principal of such Certificate, if any, remaining
unpaid. In addition, all sums paid or agreed to be paid to the Trustee for the
benefit of Owners of Certificates for the use, forbearance or detention of money
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such Certificates.
SECTION 11.14 Amendment. (a) The Trustee, the Sponsor and the Master
Servicer, may at any time and from time to time, with the prior written consent
of the Certificate Insurer but without the giving of notice to or the receipt of
the consent of the Owners, amend this Agreement, and the Trustee shall consent
to such amendment, for the purpose of (i) curing any ambiguity, or correcting or
supplementing any provision hereof which may be inconsistent with any other
provision hereof or of the Transaction Documents, or to add provisions hereto
which are not inconsistent with the provisions hereof, (ii) upon receipt of an
opinion of counsel experienced in federal income tax matters to the effect that
no entity-level tax will be imposed on either the Upper-Tier REMIC or the
Lower-Tier REMIC or upon the transferor of a Class R-I or Class R-II Certificate
as a result of the ownership of any Class R-I or Class R-II Certificate by a
Disqualified Organization, removing the restriction on transfer set forth in
Section 5.08(b) hereof or (iii) complying with the requirements of the Code and
the regulations proposed or promulgated thereunder; provided, however, that any
such action shall not, as evidenced by an opinion of counsel delivered to the
Trustee, materially and adversely affect the interests of any Owner (without its
written consent).
(b) The Trustee, the Sponsor and the Master Servicer may, at any
time and from time to time, with the prior written consent of the Certificate
Insurer but without the giving of notice to or the receipt of the consent of the
Owners, amend this Agreement, and the Trustee shall consent to such amendment,
for the purpose of changing the definition of "Specified Overcollateralization
Amount" provided, however, that no such change shall affect the weighted average
life of the related Class of Class A Certificates (assuming an appropriate
prepayment speed as determined by the Representative) by more than five percent,
as determined by the Representative.
(c) This Agreement may also be amended by the Trustee, the Sponsor,
and the Master Servicer at any time and from time to time, with the prior
written approval of the Certificate Insurer and not less than a majority of the
Percentage Interest represented by each affected Class of Certificates then
Outstanding, for the purpose of adding any provisions or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Owners hereunder; provided, however, that no such
amendment shall (a) change in any manner the amount of, or change the timing of,
payments which are required to be distributed to any Owner without the consent
of the Owner of such Certificate, (b) change or reduce the aforesaid percentages
of Percentage Interests which are required to consent to any such amendments or
(c) result in a down-rating or withdrawal of any ratings then assigned to the
Class A Certificates, without the consent of the Owners of all Certificates of
the Class or Classes affected then Outstanding.
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(d) Each proposed amendment to this Agreement shall be accompanied
by an opinion of counsel nationally recognized in federal income tax matters
addressed to the Trustee and to the Certificate Insurer to the effect that such
amendment would not adversely affect the status of either the Upper-Tier REMIC
or the Lower-Tier REMIC. Neither such opinion of counsel nor any expense of any
such proposed amendment shall be at the Trustee's expense.
(e) The Certificate Insurer, the Owners and each Rating Agency shall
be provided with copies of any amendments to this Agreement, together with
copies of any opinions or other documents or instruments executed in connection
therewith.
SECTION 11.15 REMIC Status; Taxes. (a) The Tax Matters Person shall
prepare and file or cause to be filed with the Internal Revenue Service federal
tax or information returns with respect to the Upper-Tier REMIC and the
Lower-Tier REMIC and the Certificates containing such information and at the
times and in such manner as may be required by the Code or applicable Treasury
regulations, and shall furnish to Owners such statements or information at the
times and in such manner as may be required thereby. For this purpose, the Tax
Matters Person may, but need not, rely on any proposed regulations of the United
States Department of the Treasury. The Tax Matters Person shall indicate the
election to treat each of the Upper-Tier REMIC and the Lower-Tier REMIC as a
REMIC (which election shall apply to the taxable period ending December 31, 2000
and each calendar year thereafter) in such manner as the Code or applicable
Treasury regulations may prescribe. The Trustee, as agent for the Tax Matters
Person appointed pursuant to Section 11.17 hereof, shall sign all tax
information returns filed pursuant to this Section 11.15. The Tax Matters Person
shall provide information necessary for the computation of tax imposed on the
transfer of a Class R-I or Class R-II Certificate to a Disqualified
Organization, or an agent of a Disqualified Organization, or a pass-through
entity in which a Disqualified Organization is the record holder of an interest.
The Tax Matters Person shall provide the Trustee with copies of any Federal tax
or information returns filed, or caused to be filed, by the Tax Matters Person
with respect to the REMIC Trust or the Certificates.
(b) The Tax Matters Person shall timely file all reports required to
be filed by the Trust with any federal, state or local governmental authority
having jurisdiction over the Trust, including other reports that must be filed
with the Owners, such as the Internal Revenue Service's Form 1066 and Schedule Q
and the form required under Section 6050K of the Code, if applicable to REMICs.
The Trustee shall be liable to the Master Servicer and the Sponsor for any
penalties or interest as a result of its negligence with respect to such
filings. Furthermore, the Tax Matters Person shall report to Owners, if
required, with respect to the allocation of expenses pursuant to Section 212 of
the Code in accordance with the specific instructions to the Tax Matters Person
by the Sponsor with respect to such allocation of expenses. The Tax Matters
Person shall collect any forms or reports from the Owners determined by the
Sponsor to be required under applicable federal, state and local tax laws. The
Trustee shall provide copies of all filings to the Master Servicer within 15
days of the required date of such filing. In addition, the Trustee agrees not to
file more than one extension per required filing without prior consultation
with, and the consent of, the Master Servicer. Further, the
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Trustee shall provide to the Sponsor and the Master Servicer access to any
documentation regarding its tax reporting duties hereunder as well as providing
access to the Trustee's officers and personnel in order to discuss the
methodology and preparation of any filings or returns hereunder. Such access
shall be provided to the Master Servicer and the Sponsor without cost or charge.
(c) The Tax Matters Person shall provide to the Internal Revenue
Service and to persons described in Section 860E(e)(3) and (6) of the Code the
information described in Treasury Regulation Section 1.860D-1(b)(5)(ii), or any
successor regulation thereto. With respect to either the Upper-Tier REMIC or the
Lower-Tier REMIC, such information will be provided in the manner described in
Treasury Regulation Section 1.860E-2(a)(5), or any successor regulation thereto.
(d) The Sponsor covenants and agrees that within ten Business Days
after receiving a written request from the Trustee it shall provide to the
Trustee any information necessary to enable the Trustee to meet its obligations
under subsections (b) and (c) above.
(e) The Trustee, the Sponsor and the Master Servicer each covenants
and agrees for the benefit of the Owners (i) to take no action which would
result in the termination of "REMIC" status for either the Upper-Tier REMIC or
the Lower-Tier REMIC, (ii) not to engage in any "prohibited transaction", as
such term is defined in Section 860F(a)(2) of the Code and (iii) not to engage
in any other action which may result in the imposition on the Upper-Tier REMIC
or the Lower-Tier REMIC of any other taxes under the Code.
(f) The Upper-Tier REMIC and the Lower-Tier REMIC shall, for federal
income tax purposes, maintain books on a calendar year basis and report income
on an accrual basis.
(g) Except as otherwise permitted by Section 7.06(b), no Eligible
Investment shall be sold prior to its stated maturity (unless sold pursuant to a
plan of liquidation in accordance with Article IX hereof).
(h) Neither the Sponsor nor the Trustee shall enter into any
arrangement by which the Trustee will receive a fee or other compensation for
services rendered pursuant to this Agreement, which fee or other compensation is
paid from the Trust Estate, other than as expressly contemplated by this
Agreement.
(i) Notwithstanding the foregoing clauses (g) and (h), the Trustee
or the Sponsor may engage in any of the transactions prohibited by such clauses,
provided that the Trustee shall have received the prior written consent of the
Certificate Insurer and an opinion of counsel experienced in federal income tax
matters to the effect that such transaction does not result in a tax imposed on
the Trustee or cause a termination of REMIC status for either the Upper-Tier
REMIC or the Lower-Tier REMIC; provided, however, that such transaction is
otherwise permitted under this Agreement.
108
115
(j) The Startup Day is hereby designated for the Upper-Tier REMIC
and the Lower-Tier REMIC as the "startup day" within the meaning of Section
860G(a)(9) of the Code.
SECTION 11.16 Additional Limitation on Action and Imposition of Tax.
(a) Any provision of this Agreement to the contrary notwithstanding, the Trustee
shall not, without having obtained, and delivered to the Certificate Insurer, an
opinion of counsel experienced in federal income tax matters (which opinion
shall be at the expense of the Sponsor) to the effect that such transaction does
not result in a tax imposed on the Trust or cause a termination of REMIC status
for either the Upper-Tier REMIC or the Lower-Tier REMIC, (i) sell any assets in
the Trust Estate, (ii) accept any contribution of assets after the Startup Day
or (iii) agree to any modification of this Agreement.
(b) In the event that any tax is imposed on "prohibited
transactions" of either the Upper-Tier REMIC or the Lower-Tier REMIC as defined
in Section 860F(a)(2) of the Code, on the "net income from foreclosure property"
as defined in Section 860G(c) of the Code, on any contribution to either the
Upper-Tier REMIC or the Lower-Tier REMIC after the Startup Day pursuant to
Section 860G(d) of the Code, or any other tax, including liability for
withholding tax, (other than any minimum tax imposed by Sections 23151(a) or
23153(a) of the California Revenue and Taxation Code) is imposed on the REMIC
Trust or the Non-REMIC Estate, such tax shall be paid by (i) the Trustee, if
such tax arises out of or results from a breach by the Trustee of any of its
obligations under this Agreement, (ii) the Master Servicer, if such tax arises
out of or results from a breach by the Master Servicer of any of its obligations
under this Agreement, or otherwise (iii) the Owners of the Class R-I and Class
R-II Certificates in proportion to their Percentage Interests. To the extent
such tax is chargeable against the Owners of the Class R-I and Class R-II
Certificates, notwithstanding anything to the contrary contained herein, the
Trustee is hereby authorized to retain from amounts otherwise distributable to
the Owners of the Class R-I and Class R-II Certificates on any Payment Date
sufficient funds to reimburse the Trustee for the payment of such tax (to the
extent that the Trustee has not been previously reimbursed or indemnified
therefor).
(c) The Trustee shall pay out of its own funds, without any right of
reimbursement, any and all expenses relating to any tax audit of the Trust
Estate (including, but not limited to, any professional fees or any
administrative or judicial proceedings with respect thereto that involves the
Internal Revenue Service or state tax authorities); provided, however, that if
such audit resulted solely from the negligence of the Master Servicer or the
Sponsor, as the case may be, the Master Servicer or Sponsor shall pay such
expenses. The Trustee shall act on behalf of the Trust Estate in any
administrative or judicial proceeding relating to an examination or audit by any
governmental taxing authority with respect thereto.
(d) On or before April 15 of each calendar year, commencing April
15, 2001, the Trustee shall deliver to the Master Servicer a Certificate from a
Responsible Officer of the Trustee stating the Trustee's compliance with its tax
reporting duties set forth in this Agreement.
109
116
(e) The Trustee agrees to indemnify the Trust Estate, the Master
Servicer and the Sponsor for any taxes and costs, including, without limitation,
any penalties, interest, professional fees and attorneys' fees imposed on or
incurred by the Trust Estate, the Master Servicer or the Sponsor, as a result of
a breach of the Trustee's covenants set forth in this Agreement or as a result
of the Trustee's negligence, willful misconduct or bad faith.
SECTION 11.17 Appointment of Tax Matters Person. The Owner of the
Tax Matters Person Residual Interests in the Upper-Tier REMIC and the Lower-Tier
REMIC is hereby designated as "tax matters person" as defined in the REMIC
Provisions with respect to each such REMIC.
SECTION 11.18 The Certificate Insurer. The Certificate Insurer is a
third-party beneficiary of this Agreement. Any right conferred to the
Certificate Insurer shall be suspended during any period in which the
Certificate Insurer is in default in its payment obligations under the
Certificate Insurance Policy, except with respect to amendments to this
Agreement pursuant to Section 11.14. During the continuance of a Certificate
Insurer Default, the Certificate Insurer's rights hereunder shall vest in the
Trustee on behalf of the Owners of the Class A Certificates and shall be
exercisable by the Owners of at least a majority in Percentage Interest of the
Class A Certificates then Outstanding. At such time as the Class A Certificates
are no longer Outstanding hereunder and the Certificate Insurer has been
reimbursed for all Reimbursement Amounts to which it is entitled hereunder or
under the Insurance Agreement and the Certificate Insurance Policy has expired,
the Certificate Insurer's rights hereunder shall terminate.
SECTION 11.19 Maintenance of Records. Each Originator and Owner of a
Class R Certificate shall each continuously keep an original executed
counterpart of this Agreement in its official records.
SECTION 11.20 Notices. All notices hereunder shall be given as
follows, until any superseding instructions are given to all other Persons
listed below:
The Trustee: Bankers Trust Company
of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Trustee Administration/Advanta
2000-2
Tel: (000) 000-0000
Fax: (000) 000-0000
The Sponsor: Advanta Conduit Receivables, Inc.
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Attention: Structured Finance
110
117
The Master Servicer: Advanta Mortgage Corp. USA
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
The Certificate Insurer: Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Advanta Mortgage Loan Trust 2000-2
Risk Management, Consumer Asset Backed
Securities
Fax: (000) 000-0000
Moody's: Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: The Mortgage Monitoring Department
Standard & Poor's: Standard & Poor's
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager, Structured Finance
Operations Group
Representative: Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Securities Group
[Remainder of Page Intentionally Left Blank]
111
118
IN WITNESS WHEREOF, the Sponsor, the Master Servicer and the Trustee
have caused this Agreement to be duly executed by their respective officers
thereunto duly authorized, all as of the day and year first above written.
ADVANTA CONDUIT RECEIVABLES, INC., as
Sponsor
By: /S/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA MORTGAGE CORP. USA,
as Master Servicer
By: /S/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee
By: /S/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
[Pooling and Servicing Agreement]
119
SCHEDULE 1
Schedules of Mortgage Loans
120
EXHIBIT A-1
FORM OF CLASS A-1 CERTIFICATES
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
CLASS A-1 CERTIFICATES
(Class A-1 Floating Rate Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans.
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This certificate does not represent an interest in, or an obligation
of, nor are the underlying Mortgage Loans insured or guaranteed by, Advanta
Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp., any Originator or any of their subsidiaries
and affiliates. This certificate is comprised of a Certificate representing a
fractional ownership interest described herein, monies in certain Accounts
created pursuant to the Pooling and Servicing Agreement and certain other rights
relating thereto and is payable only from amounts received by the Trustee
relating to the Mortgage Loans held by the Trust.)
No.: A-1-1 August 22, 2000 00755W HL 3
----- --------------- -----------
Date CUSIP
$258,839,000 March 25, 2015
------------ --------------
Original Principal Balance Final Scheduled
Payment Date
CEDE & CO.
----------
Registered Owner
100%
----
Percentage Interest
A-1-1
121
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
August 1, 2000 (the "Pooling and Servicing Agreement") by and among the Sponsor,
the Trustee and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer"), (ii) such amounts in all Accounts including principal collected and
accrued interest in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, including Eligible
Investments, as may from time to time may be held in such Accounts (except any
premium recapture and principal collected and interest accrued prior to the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and except
for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans, the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans, (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
The Original Principal Balance set forth above is equal to the product
of (i) the Percentage Interest represented by this Certificate and (ii) the
aggregate Original Certificate Principal Balance of the Class A-1 Certificates
on August 22, 2000 (the "Startup Day"), which aggregate amount was $258,839,000.
The Owner hereof is entitled to principal payments on each Payment Date, as
hereinafter described, which will fully amortize such Original Principal Amount
over the period from the date of initial delivery hereof to the final Payment
Date of the Class A-1 Certificates. Therefore, the actual outstanding principal
amount of this Certificate, on any date subsequent to September 25, 2000 (the
first Payment Date) may be less than the Original Principal Amount set forth
above.
In order to receive the final distribution hereon, the Owner hereof is
required to present this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING
COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH 860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
A-1-2
122
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan Asset-Backed
Certificates, Class A-1 Certificates (the "Class A-1 Certificates") and issued
under and subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which the Owner of this Certificate, by virtue of
acceptance hereof assents, and is bound. Also issued under the Pooling and
Servicing Agreement are Class A-2 Certificates; Class A-3 Certificates; Class
A-4 Certificates; Class A-5 Certificates; Class A-6 Certificates; Class B
Certificates; BS Certificates; Class R-I Certificates; Class R-II Certificates;
and a Certificate representing the right to receive certain supplemental
interest amounts. All such Certificates are collectively referred to as the
"Certificates."
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing September 25, 2000, the Owners of the Class A-1 Certificates as of
the close of business on the business day immediately preceding such Payment
Date (the "Record Date") will be entitled to receive the Class A-1 Distribution
Amount relating to such Payment Date. Distributions will be made in immediately
available funds to such Owners, by wire transfer or otherwise, to the account of
an Owner at a domestic bank or other entity having appropriate facilities
therefor, if such Owner has so notified the Trustee at least five business days
prior to the related record date, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class A-1 Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class A-1 Certificates. The Percentage
Interest of each Class A-1 Certificate as of any date of determination will be
equal to the percentage obtained by dividing the Original Principal Balance set
forth on such Class A-1 Certificate by $258,839,000.
The Trustee is required to duly and punctually pay distributions with
respect to this Certificate in accordance with the terms hereof and the Pooling
and Servicing Agreement. Amounts properly withheld under the Code or applicable
to any Owner shall be considered as having been paid by the Trustee to such
Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer pursuant to
the Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits
the Master Servicer to enter into Sub-Servicing Agreements with certain
institutions eligible for appointment as Sub-Servicers for the servicing and
administration of certain Mortgage Loans. No appointment of any Sub-Servicer
shall release the Master Servicer from any of its obligations under the Pooling
and Servicing Agreement.
A-1-3
123
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Mortgage Loans insured or guaranteed
by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta
National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates and are not insured or guaranteed by the Federal
Deposit Insurance Corporation, the Government National Mortgage Association, or
any other governmental agency. This Certificate is limited in right of payment
to certain collections and recoveries relating to the Mortgage Loans and amounts
on deposit in the Accounts (except as otherwise provided in the Pooling and
Servicing Agreement) all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement, for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC is effected pursuant to the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that (i) the
Master Servicer or any Master Servicer Affiliate, may at its option, purchase
from the Trust all (but not fewer than all) remaining Mortgage Loans and other
property then constituting the Trust Estate, and thereby effect early retirement
of the Class A Certificates, on any Payment Date when the aggregate outstanding
Loan Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates and (ii)
under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class A-1
Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by the
Offered Certificates, upon compliance with the requirements set forth in the
Pooling and Servicing Agreement, have the right to exercise any trust or power
set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
A-1-4
124
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
The Trustee is required to furnish certain information on each Payment
Date to the Owner of this Certificate, as more fully described in the Pooling
and Servicing Agreement.
The Class A-1 Certificates are issuable only as registered Certificates
in denominations of $1,000 Original Principal Amount and integral multiples of
$1,000. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class A-1 Certificates are exchangeable
for new Class A-1 Certificates of authorized denominations evidencing the same
aggregate principal amount.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Trustee or any such agent shall be affected by notice to the
contrary.
A-1-5
125
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: _________________________________________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________________________________
Name:
Title:
A-1-6
126
EXHIBIT A-2
FORM OF CLASS A-2 CERTIFICATES
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
CLASS A-2 CERTIFICATES
(Class A-2 Fixed Rate Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans.
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This certificate does not represent an interest in, or an obligation
of, nor are the underlying Mortgage Loans insured or guaranteed by, Advanta
Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp., any Originator or any of their subsidiaries
and affiliates. This certificate is comprised of a Certificate representing a
fractional ownership interest described herein, monies in certain Accounts
created pursuant to the Pooling and Servicing Agreement and certain other rights
relating thereto and is payable only from amounts received by the Trustee
relating to the Mortgage Loans held by the Trust.)
No.: A-2-1 August 22, 2000 00755W HM 1
----- --------------- -----------
Date CUSIP
$54,646,000 March 25, 2015
----------- --------------
Original Principal Balance Final Scheduled
Payment Date
CEDE & CO.
----------
Registered Owner
100%
----
Percentage Interest
A-2-1
127
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
August 1, 2000 (the "Pooling and Servicing Agreement") by and among the Sponsor,
the Trustee and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer"), (ii) such amounts in all Accounts including principal collected and
accrued interest in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, including Eligible
Investments, as may from time to time may be held in such Accounts (except any
premium recapture and principal collected and interest accrued prior to the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and except
for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans, the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans, (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
The Original Principal Balance set forth above is equal to the product
of (i) the Percentage Interest represented by this Certificate and (ii) the
aggregate Original Certificate Principal Balance of the Class A-2 Certificates
on August 22, 2000 (the "Startup Day"), which aggregate amount was $54,646,000.
The Owner hereof is entitled to principal payments on each Payment Date, as
hereinafter described, which will fully amortize such Original Principal Amount
over the period from the date of initial delivery hereof to the final Payment
Date of the Class A-2 Certificates. Therefore, the actual outstanding principal
amount of this Certificate, on any date subsequent to September 25, 2000 (the
first Payment Date) may be less than the Original Principal Amount set forth
above.
In order to receive the final distribution hereon, the Owner hereof is
required to present this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING
COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH 860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
A-2-2
128
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan Asset-Backed
Certificates, Class A-2 Certificates (the "Class A-2 Certificates") and issued
under and subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which the Owner of this Certificate, by virtue of
acceptance hereof assents, and is bound. Also issued under the Pooling and
Servicing Agreement are Class A-1 Certificates; Class A-3 Certificates; Class
A-4 Certificates; Class A-5 Certificates; Class A-6 Certificates; Class B
Certificates; BS Certificates; Class R-I Certificates; Class R-II Certificates;
and a Certificate representing the right to receive certain supplemental
interest amounts. All such Certificates are collectively referred to as the
"Certificates."
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing September 25, 2000, the Owners of the Class A-2 Certificates as of
the close of business on the last business day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs (the "Record
Date") will be entitled to receive the Class A-2 Distribution Amount relating to
such Payment Date. Distributions will be made in immediately available funds to
such Owners, by wire transfer or otherwise, to the account of an Owner at a
domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee at least five business days prior to the
related record date, or by check mailed to the address of the person entitled
thereto as it appears on the Register.
Each Owner of record of a Class A-2 Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class A-2 Certificates. The Percentage
Interest of each Class A-2 Certificate as of any date of determination will be
equal to the percentage obtained by dividing the Original Principal Balance set
forth on such Class A-2 Certificate by $54,646,000.
The Trustee is required to duly and punctually pay distributions with
respect to this Certificate in accordance with the terms hereof and the Pooling
and Servicing Agreement. Amounts properly withheld under the Code or applicable
to any Owner shall be considered as having been paid by the Trustee to such
Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer pursuant to
the Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits
the Master Servicer to enter into Sub-Servicing Agreements with certain
institutions eligible for appointment as Sub-Servicers for the servicing and
administration of certain Mortgage Loans. No appointment of any Sub-Servicer
shall release the Master Servicer from any of its obligations under the Pooling
and Servicing Agreement.
A-2-3
129
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Mortgage Loans insured or guaranteed
by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta
National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates and are not insured or guaranteed by the Federal
Deposit Insurance Corporation, the Government National Mortgage Association, or
any other governmental agency. This Certificate is limited in right of payment
to certain collections and recoveries relating to the Mortgage Loans and amounts
on deposit in the Accounts (except as otherwise provided in the Pooling and
Servicing Agreement) all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC is effected pursuant to the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that (i) the
Master Servicer or any Master Servicer Affiliate, may at its option, purchase
from the Trust all (but not fewer than all) remaining Mortgage Loans and other
property then constituting the Trust Estate, and thereby effect early retirement
of the Class A Certificates, on any Payment Date when the aggregate outstanding
Loan Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates and (ii)
under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class A-2
Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by the
Offered Certificates, upon compliance with the requirements set forth in the
Pooling and Servicing Agreement, have the right to exercise any trust or power
set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
A-2-4
130
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
The Trustee is required to furnish certain information on each Payment
Date to the Owner of this Certificate, as more fully described in the Pooling
and Servicing Agreement.
The Class A-2 Certificates are issuable only as registered Certificates
in denominations of $1,000 Original Principal Amount and integral multiples of
$1,000. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class A-2 Certificates are exchangeable
for new Class A-2 Certificates of authorized denominations evidencing the same
aggregate principal amount.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Trustee or any such agent shall be affected by notice to the
contrary.
A-2-5
131
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ____________________________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: _____________________________________
Name:
Title:
A-2-6
132
EXHIBIT A-3
FORM OF CLASS A-3 CERTIFICATES
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
CLASS A-3 CERTIFICATES
(Class A-3 Fixed Rate Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans.
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This certificate does not represent an interest in, or an obligation
of, nor are the underlying Mortgage Loans insured or guaranteed by, Advanta
Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp., any Originator or any of their subsidiaries
and affiliates. This certificate is comprised of a Certificate representing a
fractional ownership interest described herein, monies in certain Accounts
created pursuant to the Pooling and Servicing Agreement and certain other rights
relating thereto and is payable only from amounts received by the Trustee
relating to the Mortgage Loans held by the Trust.)
No.: A-3-1 August 22, 2000 00755W HN 9
----- --------------- -----------
Date CUSIP
$123,250,000 May 25, 2018
------------ ------------
Original Principal Balance Final Scheduled
Payment Date
CEDE & CO.
----------
Registered Owner
100%
----
Percentage Interest
A-3-1
133
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
August 1, 2000 (the "Pooling and Servicing Agreement") by and among the Sponsor,
the Trustee and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer"), (ii) such amounts in all Accounts including principal collected and
accrued interest in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, including Eligible
Investments, as may from time to time may be held in such Accounts (except any
premium recapture and principal collected and interest accrued prior to the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and except
for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans, (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
The Original Principal Balance set forth above is equal to the product
of (i) the Percentage Interest represented by this Certificate and (ii) the
aggregate Original Certificate Principal Balance of the Class A-3 Certificates
on August 22, 2000 (the "Startup Day"), which aggregate amount was $123,250,000.
The Owner hereof is entitled to principal payments on each Payment Date, as
hereinafter described, which will fully amortize such Original Principal Amount
over the period from the date of initial delivery hereof to the final Payment
Date of the Class A-3 Certificates. Therefore, the actual outstanding principal
amount of this Certificate, on any date subsequent to September 25, 2000 (the
first Payment Date) may be less than the Original Principal Amount set forth
above.
In order to receive the final distribution hereon, the Owner hereof is
required to present this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING
COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH 860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
A-3-2
134
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan Asset-Backed
Certificates, Class A-3 Certificates (the "Class A-3 Certificates") and issued
under and subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which the Owner of this Certificate, by virtue of
acceptance hereof assents, and is bound. Also issued under the Pooling and
Servicing Agreement are Class A-1 Certificates; Class A-2 Certificates; Class
A-4 Certificates; Class A-5 Certificates; Class A-6 Certificates; Class B
Certificates; BS Certificates; Class R-I Certificates; Class R-II Certificates;
and a Certificate representing the right to receive certain supplemental
interest amounts; all such Certificates are collectively referred to as the
"Certificates."
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing September 25, 2000, the Owners of the Class A-3 Certificates as of
the close of business on the last business day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs (the "Record
Date") will be entitled to receive the Class A-3 Distribution Amount relating to
such Payment Date. Distributions will be made in immediately available funds to
such Owners, by wire transfer or otherwise, to the account of an Owner at a
domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee at least five business days prior to the
related record date, or by check mailed to the address of the person entitled
thereto as it appears on the Register.
Each Owner of record of a Class A-3 Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class A-3 Certificates. The Percentage
Interest of each Class A-3 Certificate as of any date of determination will be
equal to the percentage obtained by dividing the Original Principal Balance set
forth on such Class A-3 Certificate by $123,250,000.
The Trustee is required to duly and punctually pay distributions with
respect to this Certificate in accordance with the terms hereof and the Pooling
and Servicing Agreement. Amounts properly withheld under the Code or applicable
to any Owner shall be considered as having been paid by the Trustee to such
Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer pursuant to
the Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits
the Master Servicer to enter into Sub-Servicing Agreements with certain
institutions eligible for appointment as Sub-Servicers for the servicing and
administration of certain Mortgage Loans. No appointment of any Sub-Servicer
shall release the Master Servicer from any of its obligations under the Pooling
and Servicing Agreement.
A-3-3
135
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Mortgage Loans insured or guaranteed
by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta
National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates and are not insured or guaranteed by the Federal
Deposit Insurance Corporation, the Government National Mortgage Association, or
any other governmental agency. This Certificate is limited in right of payment
to certain collections and recoveries relating to the Mortgage Loans and amounts
on deposit in the Accounts (except as otherwise provided in the Pooling and
Servicing Agreement) all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC is effected pursuant to the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that (i) the
Master Servicer or any Master Servicer Affiliate, may at its option, purchase
from the Trust all (but not fewer than all) remaining Mortgage Loans and other
property then constituting the Trust Estate, and thereby effect early retirement
of the Class A Certificates, on any Payment Date when the aggregate outstanding
Loan Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates and (ii)
under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class A-3
Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by the
Offered Certificates, upon compliance with the requirements set forth in the
Pooling and Servicing Agreement, have the right to exercise any trust or power
set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
A-3-4
136
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
The Trustee is required to furnish certain information on each Payment
Date to the Owner of this Certificate, as more fully described in the Pooling
and Servicing Agreement.
The Class A-3 Certificates are issuable only as registered Certificates
in denominations of $1,000 Original Principal Amount and integral multiples of
$1,000. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class A-3 Certificates are exchangeable
for new Class A-3 Certificates of authorized denominations evidencing the same
aggregate principal amount.
The Trustee and any agent of the Trustee may treat the Person in whose
name this Certificate is registered as the owner hereof for all purposes, and
neither the Trustee or any such agent shall be affected by notice to the
contrary.
A-3-5
137
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: _________________________________________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________________________________
Name:
Title:
A-3-6
138
EXHIBIT A-4
FORM OF CLASS A-4 CERTIFICATES
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
CLASS A-4 CERTIFICATES
(Class A-4 Fixed Rate Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans.
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Trust or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
(This certificate does not represent an interest in, or an obligation
of, nor are the underlying Mortgage Loans insured or guaranteed by, Advanta
Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp., any Originator or any of their subsidiaries
and affiliates. This certificate is comprised of a Certificate representing a
fractional ownership interest described herein, monies in certain Accounts
created pursuant to the Pooling and Servicing Agreement and certain other rights
relating thereto and is payable only from amounts received by the Trustee
relating to the Mortgage Loans held by the Trust.)
No.: A-4-1 August 22, 2000 00755W HP 4
----- --------------- -----------
Date CUSIP
$83,139,000 April 25, 2023
----------- --------------
Original Principal Balance Final Scheduled
Payment Date
CEDE & CO.
----------
Registered Owner
100%
----
Percentage Interest
A-4-1
139
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
August 1, 2000 (the "Pooling and Servicing Agreement") by and among the Sponsor,
the Trustee and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer"), (ii) such amounts in all Accounts including principal collected and
accrued interest in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, including Eligible
Investments, as may from time to time may be held in such Accounts (except any
premium recapture and principal collected and interest accrued prior to the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and except
for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans, the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans, (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
The Original Principal Balance set forth above is equal to the product
of (i) the Percentage Interest represented by this Certificate and (ii) the
aggregate Original Certificate Principal Balance of the Class A-4 Certificates
on August 22, 2000 (the "Startup Day"), which aggregate amount was $83,139,000.
The Owner hereof is entitled to principal payments on each Payment Date, as
hereinafter described, which will fully amortize such Original Principal Amount
over the period from the date of initial delivery hereof to the final Payment
Date of the Class A-4 Certificates. Therefore, the actual outstanding principal
amount of this Certificate, on any date subsequent to September 25, 2000 (the
first Payment Date) may be less than the Original Principal Amount set forth
above.
In order to receive the final distribution hereon, the Owner hereof is
required to present this Certificate to the Trustee. The Pooling and Servicing
Agreement provides that, in any event, upon the making of the final distribution
due on this Certificate, this Certificate shall be deemed cancelled for all
purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE REPRESENTS AN
INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE MORTGAGE INVESTMENT
CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY, IN SECTION 860G AND
860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), ASSUMING
COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH 860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
A-4-2
140
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized Certificates
designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan Asset-Backed
Certificates, Class A-4 Certificates (the "Class A-4 Certificates") and issued
under and subject to the terms, provisions and conditions of the Pooling and
Servicing Agreement, to which the Owner of this Certificate, by virtue of
acceptance hereof assents, and is bound. Also issued under the Pooling and
Servicing Agreement are Class A-1 Certificates; Class A-2 Certificates; Class
A-3 Certificates; Class A-5 Certificates; Class A-6 Certificates; Class B
Certificates; BS Certificates; Class R-I Certificates; Class R-II Certificates;
and a Certificate representing the right to receive certain supplemental
interest amounts; all such Certificates are collectively referred to as the
"Certificates."
Terms capitalized herein and not otherwise defined herein shall have
the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business Day,
then the next succeeding Business Day (each such day being a "Payment Date")
commencing September 25, 2000, the Owners of the Class A-4 Certificates as of
the close of business on the last business day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs (the "Record
Date") will be entitled to receive the Class A-4 Distribution Amount relating to
such Payment Date. Distributions will be made in immediately available funds to
such Owners, by wire transfer or otherwise, to the account of an Owner at a
domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee at least five business days prior to the
related record date, or by check mailed to the address of the person entitled
thereto as it appears on the Register.
Each Owner of record of a Class A-4 Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class A-4 Certificates. The Percentage
Interest of each Class A-4 Certificate as of any date of determination will be
equal to the percentage obtained by dividing the Original Principal Balance set
forth on such Class A-4 Certificate by $83,139,000.
The Trustee is required to duly and punctually pay distributions with
respect to this Certificate in accordance with the terms hereof and the Pooling
and Servicing Agreement. Amounts properly withheld under the Code or applicable
to any Owner shall be considered as having been paid by the Trustee to such
Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer pursuant to
the Pooling and Servicing Agreement. The Pooling and Servicing Agreement permits
the Master Servicer to enter into Sub-Servicing Agreements with certain
institutions eligible for appointment as Sub-Servicers for the servicing and
administration of certain Mortgage Loans. No appointment of any Sub-Servicer
shall release the Master Servicer from any of its obligations under the Pooling
and Servicing Agreement.
A-4-3
141
This Certificate does not represent a deposit or other obligation of,
or an interest in, nor are the underlying Mortgage Loans insured or guaranteed
by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta
National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates and are not insured or guaranteed by the Federal
Deposit Insurance Corporation, the Government National Mortgage Association, or
any other governmental agency. This Certificate is limited in right of payment
to certain collections and recoveries relating to the Mortgage Loans and amounts
on deposit in the Accounts (except as otherwise provided in the Pooling and
Servicing Agreement) all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding, judicial or
otherwise, with respect to the Pooling and Servicing Agreement for the
appointment of a receiver or trustee, or for any other remedy under the Pooling
and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC is effected pursuant to the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that (i) the
Master Servicer or any Master Servicer Affiliate, may at its option, purchase
from the Trust all (but not fewer than all) remaining Mortgage Loans and other
property then constituting the Trust Estate, and thereby effect early retirement
of the Class A Certificates, on any Payment Date when the aggregate outstanding
Loan Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates and (ii)
under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class A-4
Certificates.
The Trustee shall give written notice of termination of the Pooling and
Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented by the
Offered Certificates, upon compliance with the requirements set forth in the
Pooling and Servicing Agreement, have the right to exercise any trust or power
set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
A-4-4
142
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-4 Certificates are issuable only as registered
Certificates in denominations of $1,000 Original Principal Amount and integral
multiples of $1,000. As provided in the Pooling and Servicing Agreement and
subject to certain limitations therein set forth, Class A-4 Certificates are
exchangeable for new Class A-4 Certificates of authorized denominations
evidencing the same aggregate principal amount.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee or any such agent shall be affected by notice
to the contrary.
A-4-5
143
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: _________________________________________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ___________________________________________
Name:
Title:
A-4-6
144
EXHIBIT A-5
FORM OF CLASS A-5 CERTIFICATES
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
CLASS A-5 CERTIFICATES
(Class A-5 Fixed Rate Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans.
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Trust or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
(This certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates. This certificate is comprised of a Certificate
representing a fractional ownership interest described herein, monies in certain
Accounts created pursuant to the Pooling and Servicing Agreement and certain
other rights relating thereto and is payable only from amounts received by the
Trustee relating to the Mortgage Loans held by the Trust.)
No.: A-5-1 August 22, 2000 00755W HQ 2
----------- --------------- --------------
Date CUSIP
$64,854,000 August 25, 2030
---------------------------- ------------------
Original Principal Balance Final Scheduled
Payment Date
CEDE & CO.
Registered Owner
100%
Percentage Interest
A-5-1
145
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
August 1, 2000 (the "Pooling and Servicing Agreement") by and among the Sponsor,
the Trustee and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer"), (ii) such amounts in all Accounts including principal collected and
accrued interest in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, including Eligible
Investments, as may from time to time may be held in such Accounts (except any
premium recapture and principal collected and interest accrued prior to the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and except
for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans, the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans, (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
The Original Principal Balance set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate Original Certificate Principal Balance of the Class A-5
Certificates on August 22, 2000 (the "Startup Day"), which aggregate amount was
$64,854,000. The Owner hereof is entitled to principal payments on each Payment
Date, as hereinafter described, which will fully amortize such Original
Principal Amount over the period from the date of initial delivery hereof to the
final Payment Date of the Class A-5 Certificates. Therefore, the actual
outstanding principal amount of this Certificate, on any date subsequent to
September 25, 2000 (the first Payment Date) may be less than the Original
Principal Amount set forth above.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH
860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
A-5-2
146
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan
Asset-Backed Certificates, Class A-5 Certificates (the "Class A-5 Certificates")
and issued under and subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which the Owner of this Certificate, by
virtue of acceptance hereof assents, and is bound. Also issued under the Pooling
and Servicing Agreement are Class A-1 Certificates; Class A-2 Certificates;
Class A-3 Certificates; Class A-4 Certificates; Class A-6 Certificates; Class B
Certificates; Class BS Certificates; Class R-I Certificates; Class R-II
Certificates; and a Certificate representing the right to receive certain
supplemental interest amounts, all such Certificates are collectively referred
to as the "Certificates."
Terms capitalized herein and not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing September 25, 2000, the Owners of the Class A-5 Certificates
as of the close of business on the last business day of the calendar month
immediately preceding the calendar month in which such Payment Date occurs (the
"Record Date") will be entitled to receive the Class A-5 Distribution Amount
relating to such Payment Date. Distributions will be made in immediately
available funds to such Owners, by wire transfer or otherwise, to the account of
an Owner at a domestic bank or other entity having appropriate facilities
therefor, if such Owner has so notified the Trustee at least five business days
prior to the related record date, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class A-5 Certificate will be entitled
to receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class A-5 Certificates. The Percentage
Interest of each Class A-5 Certificate as of any date of determination will be
equal to the percentage obtained by dividing the Original Principal Balance set
forth on such Class A-5 Certificate by $64,854,000.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable to any Owner shall be considered as having been paid by the Trustee
to such Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer
pursuant to the Pooling and Servicing Agreement. The Pooling and Servicing
Agreement permits the Master Servicer to enter into Sub-Servicing Agreements
with certain institutions eligible for appointment as Sub-Servicers for the
servicing and administration of certain Mortgage Loans. No appointment of any
Sub-Servicer shall release the Master Servicer from any of its obligations under
the Pooling and Servicing Agreement.
A-5-3
147
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA,
Advanta National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any
of their subsidiaries and affiliates and are not insured or guaranteed by the
Federal Deposit Insurance Corporation, the Government National Mortgage
Association, or any other governmental agency. This Certificate is limited in
right of payment to certain collections and recoveries relating to the Mortgage
Loans and amounts on deposit in the Accounts (except as otherwise provided in
the Pooling and Servicing Agreement) all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, for
the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC(TM) is effected pursuant to the Pooling
and Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate, may at its option,
purchase from the Trust all (but not fewer than all) remaining Mortgage Loans
and other property then constituting the Trust Estate, and thereby effect early
retirement of the Class A Certificates, on any Payment Date when the aggregate
outstanding Loan Balance of the Mortgage Loans in the Trust is 10% or less of
the aggregate Original Certificate Principal Balance of the Class A Certificates
and (ii) under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class A-5
Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented
by the Offered Certificates, upon compliance with the requirements set forth in
the Pooling and Servicing Agreement, have the right to exercise any trust or
power set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
A-5-4
148
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-5 Certificates are issuable only as registered
Certificates in denominations of $1,000 Original Principal Amount and integral
multiples of $1,000. As provided in the Pooling and Servicing Agreement and
subject to certain limitations therein set forth, Class A-5 Certificates are
exchangeable for new Class A-5 Certificates of authorized denominations
evidencing the same aggregate principal amount.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
A-5-5
149
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
A-5-6
150
EXHIBIT A-6
FORM OF CLASS A-6 CERTIFICATES
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
CLASS A-6 CERTIFICATES
(Class A-6 Fixed Rate Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans.
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Trust or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
(This certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates. This certificate is comprised of a Certificate
representing a fractional ownership interest described herein, monies in certain
Accounts created pursuant to the Pooling and Servicing Agreement and certain
other rights relating thereto and is payable only from amounts received by the
Trustee relating to the Mortgage Loans held by the Trust.)
No.: X-0-0 Xxxxxx 00, 0000 00000X XX 0
----------- --------------- -----------
Date CUSIP
$65,000,000 March 25, 2015
---------------------------- --------------
Original Principal Balance Final Scheduled
Payment Date
CEDE & CO.
Registered Owner
100%
Percentage Interest
A-6-1
151
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2 (the
"Trust") pursuant to that certain Pooling and Servicing Agreement dated as of
August 1, 2000 (the "Pooling and Servicing Agreement") by and among the Sponsor,
the Trustee and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer"), (ii) such amounts in all Accounts including principal collected and
accrued interest in respect of the related Mortgage Loans on or after the
Initial Cut-Off Date and each Replacement Cut-Off Date, including Eligible
Investments, as may from time to time may be held in such Accounts (except any
premium recapture and principal collected and interest accrued prior to the
Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and except
for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans, the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans, (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
The Original Principal Balance set forth above is equal to the
product of (i) the Percentage Interest represented by this Certificate and (ii)
the aggregate Original Certificate Principal Balance of the Class A-6
Certificates on August 22, 2000 (the "Startup Day"), which aggregate amount was
$65,000,000. The Owner hereof is entitled to principal payments in the amounts
and at the times set forth in the Pooling and Servicing Agreement, which will
fully amortize such Original Principal Amount over the period from the date of
initial delivery hereof to the final Payment Date of the Class A-6 Certificates.
Therefore, the actual outstanding principal amount of this Certificate, on any
date subsequent to September 25, 2000 (the first Payment Date) may be less than
the Original Principal Amount set forth above.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH
860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
A-6-2
152
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
This Certificate is one of a Class of duly-authorized
Certificates designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan
Asset-Backed Certificates, Class A-6 Certificates (the "Class A-6 Certificates")
and issued under and subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which the Owner of this Certificate, by
virtue of acceptance hereof assents, and is bound. Also issued under the Pooling
and Servicing Agreement are Class A-1 Certificates; Class A-2 Certificates;
Class A-3 Certificates; Class A-4 Certificates; Class A-5 Certificates; Class B
Certificates; Class BS Certificates; Class R-I Certificates; Class R-II
Certificates; and a Certificate representing the right to receive certain
supplemental interest amounts, all such Certificates are collectively referred
to as the "Certificates."
Terms capitalized herein and not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing September 25, 2000, the Owners of the Class A-6 Certificates
as of the close of business on the last business day of the calendar month
immediately preceding the calendar month in which such Payment Date occurs (the
"Record Date") will be entitled to receive the Class A-6 Distribution Amount
relating to such Payment Date. Distributions will be made in immediately
available funds to such Owners, by wire transfer or otherwise, to the account of
an Owner at a domestic bank or other entity having appropriate facilities
therefor, if such Owner has so notified the Trustee at least five business days
prior to the related record date, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class A-6 Certificate will be entitled
to receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class A-6 Certificates. The Percentage
Interest of each Class A-6 Certificate as of any date of determination will be
equal to the percentage obtained by dividing the Original Principal Balance set
forth on such Class A-6 Certificate by $65,000,000.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable to any Owner shall be considered as having been paid by the Trustee
to such Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer
pursuant to the Pooling and Servicing Agreement. The Pooling and Servicing
Agreement permits the Master Servicer to enter into Sub-Servicing Agreements
with certain institutions eligible for appointment as Sub-Servicers for the
servicing and administration of certain Mortgage Loans. No appointment of any
Sub-Servicer shall release the Master Servicer from any of its obligations under
the Pooling and Servicing Agreement.
A-6-3
153
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA,
Advanta National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any
of their subsidiaries and affiliates and are not insured or guaranteed by the
Federal Deposit Insurance Corporation, the Government National Mortgage
Association, or any other governmental agency. This Certificate is limited in
right of payment to certain collections and recoveries relating to the Mortgage
Loans and amounts on deposit in the Accounts (except as otherwise provided in
the Pooling and Servicing Agreement) all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement for
the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC is effected pursuant to the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate, may at its option,
purchase from the Trust all (but not fewer than all) remaining Mortgage Loans
and other property then constituting the Trust Estate, and thereby effect early
retirement of the Class A Certificates, on any Payment Date when the aggregate
outstanding Loan Balance of the Mortgage Loans in the Trust is 10% or less of
the aggregate Original Certificate Principal Balance of the Class A Certificates
and (ii) under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class A-6
Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented
by the Offered Certificates, upon compliance with the requirements set forth in
the Pooling and Servicing Agreement, have the right to exercise any trust or
power set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
A-6-4
154
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class A-6 Certificates are issuable only as registered
Certificates in denominations of $1,000 Original Principal Amount and integral
multiples of $1,000. As provided in the Pooling and Servicing Agreement and
subject to certain limitations therein set forth, Class A-6 Certificates are
exchangeable for new Class A-6 Certificates of authorized denominations
evidencing the same aggregate principal amount.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
A-6-5
155
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
A-6-6
156
EXHIBIT B-1
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS SUBORDINATE TO THE CLASS A-1, CLASS A-2, CLASS A-3, CLASS
A-4, CLASS A-5, AND CLASS A-6 CERTIFICATES OF THIS SERIES TO THE EXTENT
DESCRIBED IN THE POOLING AND SERVICING AGREEMENT DESCRIBED HEREIN.
ADVANTA MORTGAGE LOAN TRUST 2000-2
MORTGAGE LOAN ASSET-BACKED CERTIFICATE
INTEREST-ONLY CLASS B CERTIFICATES
(Class B Certificate)
Comprised of a Certificate Representing
Certain Interests Relating to a Pool of
Mortgage Loans
The Mortgage Loans are Serviced by
ADVANTA MORTGAGE CORP. USA, as Master Servicer
(This certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates. This certificate is comprised of a Certificate
representing a fractional ownership interest described herein, monies in certain
Accounts created pursuant to the Pooling and Servicing Agreement and certain
other rights relating thereto and is payable only from amounts received by the
Trustee relating to the Mortgage Loans held by the Trust.
No.: B-1 August 22, 2000
---------------
Date
Percentage Interest: 100% August 25, 2030
---- ---------------
Final Scheduled
Payment Date
Bankers Trust Company of California, N.A., on behalf of
Advanta 2000-2 Supplemental Interest Trust
Registered Owner
The registered Owner named above is the registered Owner of a
fractional interest in (i) a pool consisting of fixed rate mortgage loans (the
"Mortgage Loans") which will be formed by Advanta Conduit Receivables, Inc. (the
"Sponsor"), a Nevada corporation, and sold or caused to be sold by the Sponsor
to Bankers Trust Company of California, N.A., a national banking association, as
trustee (the "Trustee") on behalf of Advanta Mortgage Loan Trust 2000-2
B-1-1
157
(the "Trust") pursuant to that certain Pooling and Servicing Agreement dated as
of August 1, 2000 (the "Pooling and Servicing Agreement") by and among the
Sponsor, the Trustee and Advanta Mortgage Corp. USA, as master servicer (the
"Master Servicer"), (ii) such amounts in all Accounts including principal
collected and accrued interest in respect of the related Mortgage Loans on or
after the Initial Cut-Off Date and each Replacement Cut-Off Date, including
Eligible Investments, as may from time to time may be held in such Accounts
(except any premium recapture and principal collected and interest accrued prior
to the Initial Cut-Off Date and each Replacement Cut-Off Date, as applicable and
except for net investment earnings on the Principal and Interest Account and the
Certificate Account), (iii) any Property relating to the Mortgage Loans, the
ownership of which has been effected on behalf of the Trust as a result of
foreclosure or acceptance by the Master Servicer of a deed in lieu of
foreclosure and that has not been withdrawn from the Trust, (iv) any Mortgage
Insurance Policies relating to the Mortgage Loans and any rights of the Sponsor
under any Mortgage Insurance Policies, (v) Net Liquidation Proceeds relating to
the Mortgage Loans (vi) the rights of the Trustee under the Certificate
Insurance Policy, and (vii) the rights of the Sponsor against any Originator
pursuant to the related Transfer Agreement.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
THIS CERTIFICATE HAS NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR THE SECURITIES LAWS OF ANY
STATE. ANY RESALE, TRANSFER OR OTHER DISPOSITION OF THIS CERTIFICATE WITHOUT
SUCH REGISTRATION OR QUALIFICATION MAY BE MADE ONLY IN A TRANSACTION WHICH DOES
NOT REQUIRE SUCH REGISTRATION OR QUALIFICATION AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN A CLASS OF "REGULAR INTERESTS" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS (SECTIONS 860A THROUGH
860G) OF THE CODE.
THIS CERTIFICATE IS A PASS-THROUGH CERTIFICATE ONLY AND,
NOTWITHSTANDING REFERENCES HEREIN TO PRINCIPAL AND INTEREST, NO DEBT OF ANY
PERSON IS REPRESENTED HEREBY (OTHER THAN AS REQUIRED FOR FEDERAL INCOME TAX
PURPOSES).
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
B-1-2
158
This Certificate is one of a Class of duly-authorized
Certificates designated as Advanta Mortgage Loan Trust 2000-2, Mortgage Loan
Asset-Backed Certificates, Class B Certificates (the "Class B Certificates") and
issued under and subject to the terms, provisions and conditions of the Pooling
and Servicing Agreement, to which the Owner of this Certificate, by virtue of
acceptance hereof assents and, is bound. Also issued under the Pooling and
Servicing Agreement are Class A-1 Certificates; Class A-2 Certificates; Class
A-3 Certificates; Class A-4 Certificates; Class A-5 Certificates; Class A-6
Certificates; Class BS Certificates; Class R-I Certificates; Class R-II
Certificates; and a Certificate representing the right to receive certain
supplemental interest amounts. All such Certificates are collectively referred
to as the "Certificates."
Terms capitalized herein and not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month, or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date") commencing September 25, 2000, the Owners of the Class B Certificates as
of the close of business on the last business day of the calendar month
immediately preceding the calendar month in which such Payment Date occurs (the
"Record Date") will be entitled to receive the Class B Distribution Amount
relating to such Payment Date. Distributions will be made in immediately
available funds to such Owners, by wire transfer or otherwise, to the account of
an Owner at a domestic bank or other entity having appropriate facilities
therefor, if such Owner has so notified the Trustee at least five business days
prior to the related record date, or by check mailed to the address of the
person entitled thereto as it appears on the Register.
Each Owner of record of a Class B Certificate will be entitled to
receive such Owner's Percentage Interest in the amounts distributed on such
Payment Date to the Owners of the Class B Certificates. The Percentage Interest
of each Class B Certificate as of any date of determination will be equal to the
percentage set forth on such Class B Certificate.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable to any Owner shall be considered as having been paid by the Trustee
to such Owner for all purposes of the Pooling and Servicing Agreement.
The Mortgage Loans will be serviced by the Master Servicer
pursuant to the Pooling and Servicing Agreement. The Pooling and Servicing
Agreement permits the Master Servicer to enter into Sub-Servicing Agreements
with certain institutions eligible for appointment as Sub-Servicers for the
servicing and administration of certain Mortgage Loans. No appointment of any
Sub-Servicer shall release the Master Servicer from any of its obligations under
the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA,
Advanta National Bank, Advanta Bank Corp., Advanta Corp., any Originator or any
of their subsidiaries and affiliates and are not insured or guaranteed by the
Federal Deposit Insurance Corporation, the Government National Mortgage
Association, or any other governmental agency. This Certificate is limited in
right of payment to
B-1-3
159
certain collections and recoveries relating to the Mortgage Loans and amounts on
deposit in the Accounts (except as otherwise provided in the Pooling and
Servicing Agreement) all as more specifically set forth hereinabove and in the
Pooling and Servicing Agreement.
No Owner shall have any right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of either the
Lower-Tier REMIC or the Upper-Tier REMIC is effected pursuant to the Pooling and
Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate may at its option,
purchase from the Trust all (but not fewer than all) remaining Mortgage Loans
and other property then constituting the Trust Estate, and thereby effect early
retirement of the Class A Certificates, on any Payment Date when the aggregate
outstanding Loan Balance of the Mortgage Loans in the Trust is 10% or less of
the aggregate Original Certificate Principal Balance of the Class A Certificates
and (ii) under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans may be sold, thereby affecting the early retirement of the Class B
Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
The Owners of a majority of the Percentage Interests represented
by the Offered Certificates, upon compliance with the requirements set forth in
the Pooling and Servicing Agreement, have the right to exercise any trust or
power set forth in the Pooling and Servicing Agreement with respect to the
Certificates or the Trust.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register, and thereupon one or more new Certificates of like
Class, tenor and Percentage Interest will be issued to the designated transferee
or transferees.
B-1-4
160
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class B Certificates are issuable only as registered
Certificates in minimum percentage interests of all interests in the Class B
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class B Certificates are exchangeable for
new Class B Certificates of the same percentage interest as the Class B
Certificates exchanged.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
B-1-5
161
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed on behalf of the Trust.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
B-1-6
162
EXHIBIT B-2
FORM OF CLASS BS CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
SUPPLEMENTAL INTEREST PAYMENT ACCOUNT
RELATING TO
ADVANTA MORTGAGE LOAN TRUST 2000-2
CLASS BS
This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates. This Certificate represents a fractional ownership
interest in certain excess monies of the Supplemental Interest Payment Account
described herein.
No: BS- Date: August 22, 2000
Percentage Interest: ____%
Final Scheduled
Payment Date
Registered Owner
The registered Owner named above is the registered Owner of a
fractional interest in certain excess monies of the Supplemental Interest
Payment Account pursuant to that certain Pooling and Servicing Agreement dated
as of August 1, 2000 (the "Pooling and Servicing Agreement") by and among
Advanta Conduit Receivables, Inc., as sponsor (the "Sponsor"), Bankers Trust
Company of California, N.A., as trustee (the "Trustee"), and Advanta Mortgage
Corp. USA, as master servicer (the "Master Servicer").
B-2-1
163
This Certificate is one of a Class of duly authorized
Certificates designated as Advanta Mortgage Loan Trust 2000-2, Class BS
Certificates (the "Class BS Certificates") and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, to
which the Owner of this Certificate, by virtue of acceptance hereof assents, and
is bound.
Terms capitalized herein and not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date"), commencing September 25, 2000 to the persons in whose names the Class BS
Certificates are registered at the close of business on the last business day of
the calendar month immediately preceding the calendar month in which such
Payment Date occurs (the "Record Date"), the Trustee will distribute to each
Owner of the Class BS Certificates such Owner's Percentage Interest multiplied
by any amounts then available to be distributed to the Owners of the Class BS
Certificates. Distributions will be made in immediately available funds, by wire
transfer or otherwise, to the account of such Owner at a domestic bank or other
entity having appropriate facilities therefor, if such Owner has so notified the
Trustee at least five business days prior to the related record date, or by
check mailed to the address of the person entitled thereto as it appears on the
Register.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, the Sponsor, Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp. or any of their subsidiaries and affiliates
and are not insured or guaranteed by the Federal Deposit Insurance Corporation,
the Government National Mortgage Association, or any other governmental agency.
This Certificate is limited in right of payment to certain amounts held in the
Supplemental Interest Payment Account, all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, or
for the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such
B-2-2
164
Certificate or to institute suit for the enforcement of any such distribution,
and such right shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of a Trust occurs
pursuant to the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate may at its option,
purchase from the Trust all (but not fewer than all) Mortgage Loans and other
property then constituting the Trust Estate, and thereby effect early retirement
of the Certificates, on any Payment Date when the aggregate outstanding Loan
Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates (ii) under
certain circumstances relating to the qualification of either the Lower-Tier
REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage Loans in
the Trust may be sold, thereby effecting the early retirement of the
Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and a
like aggregate fractional undivided interest in certain amounts held in the
Supplemental Interest Payment Account will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Class BS Certificates are issuable only as registered
Certificates. As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class BS Certificates are exchangeable
for new Class BS Certificates evidencing the same Percentage Interest as the
Class BS Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
B-2-3
165
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
B-2-4
166
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed, pursuant to the provisions of the Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
B-2-5
167
EXHIBIT B-3
FORM OF SUPPLEMENTAL INTEREST RIGHTS
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION, THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY
OTHER GOVERNMENTAL AGENCY.
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
SUPPLEMENTAL INTEREST PAYMENT ACCOUNT
RELATING TO
ADVANTA MORTGAGE LOAN TRUST 2000-2
SUPPLEMENTAL INTEREST RIGHT
This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Bank Corp., Advanta Corp., any Originator or any of their
subsidiaries and affiliates. This Certificate represents a right to receive
certain amounts held in the Supplemental Interest Payment Account described
herein.
Date: August 22, 2000
Percentage Interest: 100%
---- ---------------------
Final Scheduled
Payment Date
Bankers Trust Company of California, N.A.
on behalf of the Owners of the Class A-1 Certificates
Registered Owner
The registered Owner named above is the registered Owner of a
right to receive certain amounts held in the Supplemental Interest Payment
Account (the "Supplemental Interest Right") pursuant to that certain Pooling and
Servicing Agreement dated as of August 1, 2000 (the "Pooling and Servicing
Agreement") by and among Advanta Conduit Receivables, Inc, as sponsor (the
"Sponsor"), and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"), and Advanta Mortgage Corp. USA, as master servicer (the "Master
Servicer").
B-3-1
168
This Certificate issued under and subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement the Owner of this Certificate by virtue of
acceptance hereof assents and by which such Owner is bound.
Terms capitalized herein and not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date"), commencing September 25, 2000 to the persons in whose names the
Supplemental Interest Rights are registered at the close of business on the last
business day of the calendar month immediately preceding the calendar month in
which such Payment Date occurs (the "Record Date"), the Trustee will distribute
to each Owner of Supplemental Interest Rights such Owner's Percentage Interest
multiplied by any amounts then available to be distributed to the Owners of the
Supplemental Interest Rights. Distributions will be made in immediately
available funds, by wire transfer or otherwise, to the account of such Owner at
a domestic bank or other entity having appropriate facilities therefor, if such
Owner has so notified the Trustee at least five business days prior to the
related record date, or by check mailed to the address of the person entitled
thereto as it appears on the Register.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, the Sponsor, Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp. or any of their subsidiaries and affiliates
and are not insured or guaranteed by the Federal Deposit Insurance Corporation,
the Government National Mortgage Association, or any other governmental agency.
This Certificate is limited in right of payment to certain amounts held in the
Supplemental Interest Payment Account all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, for
the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
B-3-2
169
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of a Trust occurs
pursuant to the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate may at its option,
purchase from the Trust all (but not fewer than all) Mortgage Loans and other
property then constituting the Trust Estate, and thereby effect early retirement
of the Certificates, on any Payment Date when the aggregate outstanding Loan
Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates and (ii)
under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans in the Trust may be sold, thereby effecting the early retirement of the
Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and
aggregate fractional undivided interest in certain amounts held in the
Supplemental Interest Payment Account will be issued to the designated
transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
B-3-3
170
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed, pursuant to the provisions of the Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
B-3-4
171
EXHIBIT B-4
FORM OF CLASS R-I CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CLASS R-I CERTIFICATE IS RESTRICTED AS SET FORTH
IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS R-I
CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION
860E(e)(5) OF THE CODE. SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN
CERTAIN TAXABLE INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING
ELECTRIC ENERGY OR PROVIDING THEREOF SERVICE TO PERSONS IN RURAL AREAS, OR ANY
ORGANIZATION (OTHER THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL
INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS
INCOME. NO TRANSFER OF THIS CLASS R-I CERTIFICATE WILL BE REGISTERED BY THE
TRUSTEE UNLESS THE PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING,
AMONG OTHER THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED
ORGANIZATION AND IS NOT ACQUIRING THE CLASS R-I CERTIFICATE FOR THE ACCOUNT OF A
DISQUALIFIED ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH
PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY GIVE
RISE TO A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN
AGENT ACTING FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CLASS R-I
CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN ANY
TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO THE
PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION OF
THIS CERTIFICATE OWNED THROUGH SUCH PASS-THROUGH ENTITY BY SUCH DISQUALIFIED
ORGANIZATION AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THROUGH" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES TO WHICH PART 1 OF SUBCHAPTER
IT OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION,
B-4-1
172
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
B-4-2
173
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ADVANTA MORTGAGE LOAN TRUST 2000-2
CLASS R-I
This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Corp., any Originator or any of their subsidiaries and affiliates.
No: R-I-1 Date: August 22, 2000
Percentage Interest: ___%
Final Scheduled
Payment Date
Registered Owner
This Certificate is one of a Class of duly authorized
Certificates designated as Advanta Mortgage Loan Trust 2000-2, Class R-I
Certificates (the "Class R-I Certificates") and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, dated
as of August 1, 2000 (the "Pooling and Servicing Agreement"), by and among
Advanta Conduit Receivables, Inc. (the "Sponsor"), Bankers Trust Company of
California, N.A. (the "Trustee"), and Advanta Mortgage Corp. USA (the "Master
Servicer") to which Pooling and Servicing Agreement the Owner of this
Certificate by virtue of acceptance hereof assents and by which such Owner is
bound.
Terms capitalized herein and not otherwise defined herein shall
have the respective meanings set forth in the Pooling and Servicing Agreement.
On the 25th day of each month or, if such day is not a Business
Day, then the next succeeding Business Day (each such day being a "Payment
Date"), commencing September 25, 2000 to the persons in whose names the Class
R-I Certificates are registered at the close of business on the last business
day of the calendar month immediately preceding the calendar month in which such
Payment Date occurs (the "Record Date"), the Trustee will distribute to each
Owner of the Class R-I Certificates such Owner's Percentage Interest multiplied
by any amounts then available to be distributed to the Owners of the Class R-I
Certificates.
B-4-3
174
Distributions will be made in immediately available funds, by wire transfer or
otherwise, to the account of such Owner at a domestic bank or other entity
having appropriate facilities therefor, if such Owner has so notified the
Trustee at least five business days prior to the related record date, or by
check mailed to the address of the person entitled thereto as it appears on the
Register.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay distributions
with respect to this Certificate in accordance with the terms hereof and the
Pooling and Servicing Agreement. Amounts properly withheld under the Code or
applicable state or local law by any Person from a distribution to any Owner
shall be considered as having been paid by the Trustee to such Owner for all
purposes of the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other obligation
of, or an interest in, nor are the underlying Mortgage Loans insured or
guaranteed by, the Sponsor, Advanta Mortgage Corp. USA, Advanta National Bank,
Advanta Bank Corp., Advanta Corp. or any of their subsidiaries and affiliates
and are not insured or guaranteed by the Federal Deposit Insurance Corporation,
the Government National Mortgage Association, or any other governmental agency.
This Certificate is limited in right of payment to certain collections and
recoveries relating to the Mortgage Loans, all as more specifically set forth
hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, for
the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and Servicing
Agreement, the Owner of any Certificate shall have the right which is absolute
and unconditional to receive distributions to the extent provided in the Pooling
and Servicing Agreement with respect to such Certificate or to institute suit
for the enforcement of any such distribution, and such right shall not be
impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the obligations
created thereby will terminate upon the earlier of (i) the payment to the Owners
of all Certificates from amounts other than those available under the
Certificate Insurance Policy of all amounts held by the Trustee and required to
be paid to such Owners pursuant to the Pooling and Servicing Agreement upon the
later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of a Trust occurs
pursuant to the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate may at its option,
purchase from the Trust all (but not fewer than all) Mortgage Loans and other
property then constituting the Trust, and thereby effect early retirement of the
Certificates, on any Payment Date when the aggregate outstanding Loan
B-4-4
175
Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates and (ii)
under certain circumstances relating to the qualification of either the
Lower-Tier REMIC or the Upper-Tier REMIC as a REMIC under the Code the Mortgage
Loans in the Trust may be sold, thereby effecting the early retirement of the
Class R-I Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and
aggregate fractional undivided interest in the Trust will be issued to the
designated transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject to
certain limitations therein set forth, Class R-I Certificates are exchangeable
for new Class R-I Certificates evidencing the same Percentage Interest as the
Class R-I Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person in
whose name this Certificate is registered as the owner hereof for all purposes,
and neither the Trustee or any such agent shall be affected by notice to the
contrary.
B-4-5
176
IN WITNESS WHEREOF, the Trustee has caused this Certificate to be
duly executed, pursuant to the provisions of the Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By: ______________________
Name:
Title:
B-4-6
177
EXHIBIT B-5
FORM OF CLASS R-II CERTIFICATES
SOLELY FOR FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE
REPRESENTS AN INTEREST IN THE ONLY "RESIDUAL INTEREST" IN A "REAL ESTATE
MORTGAGE INVESTMENT CONDUIT" ("REMIC") AS THOSE TERMS ARE DEFINED, RESPECTIVELY,
IN SECTION 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), ASSUMING COMPLIANCE WITH THE REMIC PROVISIONS OF THE CODE.
TRANSFER OF THIS CLASS R-II CERTIFICATE IS RESTRICTED AS SET
FORTH IN THE POOLING AND SERVICING AGREEMENT. NO TRANSFER OF THIS CLASS R-II
CERTIFICATE MAY BE MADE TO A "DISQUALIFIED ORGANIZATION" AS DEFINED IN SECTION
860E(e)(5) OF THE CODE. SUCH TERM INCLUDES THE UNITED STATES, ANY STATE OR
POLITICAL SUBDIVISION THEREOF, ANY FOREIGN GOVERNMENT, ANY INTERNATIONAL
ORGANIZATION, ANY AGENCY OR INSTRUMENTALITY OF ANY OF THE FOREGOING (OTHER THAN
CERTAIN TAXABLE INSTRUMENTALITIES), ANY COOPERATIVE ORGANIZATION FURNISHING
ELECTRIC ENERGY OR PROVIDING THEREOF SERVICE TO PERSONS IN RURAL AREAS, OR ANY
ORGANIZATION (OTHER THAN A FARMERS' COOPERATIVE) THAT IS EXEMPT FROM FEDERAL
INCOME TAX UNLESS SUCH ORGANIZATION IS SUBJECT TO THE TAX ON UNRELATED BUSINESS
INCOME. NO TRANSFER OF THIS CLASS R-II CERTIFICATE WILL BE REGISTERED BY THE
TRUSTEE UNLESS THE PROPOSED TRANSFEREE HAS DELIVERED AN AFFIDAVIT AFFIRMING,
AMONG OTHER THINGS, THAT THE PROPOSED TRANSFEREE IS NOT A DISQUALIFIED
ORGANIZATION AND IS NOT ACQUIRING THE CLASS R-II CERTIFICATE FOR THE ACCOUNT OF
A DISQUALIFIED ORGANIZATION. A COPY OF THE FORM OF AFFIDAVIT REQUIRED OF EACH
PROPOSED TRANSFEREE IS ON FILE AND AVAILABLE FROM THE TRUSTEE.
A TRANSFER IN VIOLATION OF THE APPLICABLE RESTRICTIONS MAY
GIVE RISE TO A SUBSTANTIAL TAX UPON THE TRANSFEROR OR, IN CERTAIN CASES, UPON AN
AGENT ACTING FOR THE TRANSFEREE. A PASS-THROUGH ENTITY THAT HOLDS THIS CLASS
R-II CERTIFICATE AND THAT HAS A DISQUALIFIED ORGANIZATION AS A RECORD OWNER IN
ANY TAXABLE YEAR GENERALLY WILL BE SUBJECT TO A TAX FOR EACH SUCH YEAR EQUAL TO
THE PRODUCT OF (A) THE AMOUNT OF EXCESS INCLUSIONS WITH RESPECT TO THE PORTION
OF THIS CERTIFICATE OWNED THROUGH SUCH PASS-THROUGH ENTITY BY SUCH DISQUALIFIED
ORGANIZATION AND (B) THE HIGHEST MARGINAL FEDERAL TAX RATE ON CORPORATIONS. FOR
PURPOSES OF THE PRECEDING SENTENCE, THE TERM "PASS-THROUGH" ENTITY INCLUDES
REGULATED INVESTMENT COMPANIES, REAL ESTATE INVESTMENT TRUSTS, COMMON TRUST
FUNDS, PARTNERSHIPS, TRUSTS, ESTATES, COOPERATIVES TO WHICH PART I OF SUBCHAPTER
1T OF THE CODE APPLIES AND, EXCEPT AS PROVIDED IN REGULATIONS, NOMINEES.
NEITHER THIS CERTIFICATE NOR THE MORTGAGE LOANS ARE INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE FEDERAL SAVINGS AND
LOAN INSURANCE CORPORATION,
B-5-1
178
THE GOVERNMENT NATIONAL MORTGAGE ASSOCIATION OR ANY OTHER GOVERNMENTAL AGENCY.
B-5-2
179
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"). ANY RESALE OR TRANSFER OF THIS CERTIFICATE
WITHOUT REGISTRATION THEREOF UNDER THE ACT MAY BE MADE ONLY IN A TRANSACTION
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 5.8 OF THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
ADVANTA MORTGAGE LOAN TRUST 2000-2
CLASS R-II
This Certificate does not represent an interest in, or an
obligation of, nor are the underlying Mortgage Loans insured or guaranteed by,
Advanta Conduit Receivables, Inc., Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Corp., any Originator or any of their subsidiaries and affiliates.
No: R-II-1 Date: August 22, 2000
------------------- ------------------------------
Percentage Interest: ___% --------------------------
Final Scheduled
Payment Date
-------------------------------
Registered Owner
This Certificate is one of a Class of duly authorized
Certificates designated as Advanta Mortgage Loan Trust 2000-2, Class R-II
Certificates (the "Class R-II Certificates") and issued under and subject to the
terms, provisions and conditions of the Pooling and Servicing Agreement, dated
as of August 1, 2000 (the "Pooling and Servicing Agreement"), by and among
Advanta Conduit Receivables, Inc. (the "Sponsor"), Bankers Trust Company of
California, N.A. (the "Trustee"), and Advanta Mortgage Corp. USA (the "Master
Servicer") to which Pooling and Servicing Agreement the Owner of this
Certificate by virtue of acceptance hereof assents and by which such Owner is
bound.
Terms capitalized herein and not otherwise defined herein
shall have the respective meanings set forth in the Pooling and Servicing
Agreement.
On the 25th day of each month or, if such day is not a
Business Day, then the next succeeding Business Day (each such day being a
"Payment Date"), commencing September 25, 2000 to the persons in whose names the
Class R-II Certificates are registered at the close of business on the last
business day of the calendar month immediately preceding the calendar month in
which such Payment Date occurs (the "Record Date"), the Trustee will distribute
to each Owner of the Class R-II Certificates such Owner's Percentage Interest
multiplied by any amounts then available to be distributed to the Owners of the
Class R-II Certificates.
B-5-3
180
Distributions will be made in immediately available funds, by wire transfer or
otherwise, to the account of such Owner at a domestic bank or other entity
having appropriate facilities therefor, if such Owner has so notified the
Trustee at least five business days prior to the related record date, or by
check mailed to the address of the person entitled thereto as it appears on the
Register.
In order to receive the final distribution hereon, the Owner
hereof is required to present this Certificate to the Trustee. The Pooling and
Servicing Agreement provides that, in any event, upon the making of the final
distribution due on this Certificate, this Certificate shall be deemed cancelled
for all purposes under the Pooling and Servicing Agreement.
The Trustee is required to duly and punctually pay
distributions with respect to this Certificate in accordance with the terms
hereof and the Pooling and Servicing Agreement. Amounts properly withheld under
the Code or applicable state or local law by any Person from a distribution to
any Owner shall be considered as having been paid by the Trustee to such Owner
for all purposes of the Pooling and Servicing Agreement.
This Certificate does not represent a deposit or other
obligation of, or an interest in, nor are the underlying Mortgage Loans insured
or guaranteed by, the Sponsor, Advanta Mortgage Corp. USA, Advanta National
Bank, Advanta Bank Corp., Advanta Corp. or any of their subsidiaries and
affiliates and are not insured or guaranteed by the Federal Deposit Insurance
Corporation, the Government National Mortgage Association, or any other
governmental agency. This Certificate is limited in right of payment to certain
collections and recoveries relating to the Mortgage Loans, all as more
specifically set forth hereinabove and in the Pooling and Servicing Agreement.
No Owner shall have the right to institute any proceeding,
judicial or otherwise, with respect to the Pooling and Servicing Agreement, for
the appointment of a receiver or trustee, or for any other remedy under the
Pooling and Servicing Agreement except in compliance with the terms thereof.
Notwithstanding any other provisions in the Pooling and
Servicing Agreement, the Owner of any Certificate shall have the right which is
absolute and unconditional to receive distributions to the extent provided in
the Pooling and Servicing Agreement with respect to such Certificate or to
institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Owner.
The Pooling and Servicing Agreement provides that the
obligations created thereby will terminate upon the earlier of (i) the payment
to the Owners of all Certificates from amounts other than those available under
the Certificate Insurance Policy of all amounts held by the Trustee and required
to be paid to such Owners pursuant to the Pooling and Servicing Agreement upon
the later to occur of (a) the final payment or other liquidation (or any advance
made with respect thereto) of the last Mortgage Loan in the Trust or (b) the
disposition of all property acquired in respect of any Mortgage Loan remaining
in the Trust or (ii) at any time when a Qualified Liquidation of a Trust occurs
pursuant to the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement additionally provides that
(i) the Master Servicer or any Master Servicer Affiliate may at its option,
purchase from the Trust all (but not fewer than all) Mortgage Loans and other
property then constituting the Trust, and thereby effect early retirement of the
Certificates, on any Payment Date when the aggregate outstanding Loan
B-5-4
181
Balance of the Mortgage Loans in the Trust is 10% or less of the aggregate
Original Certificate Principal Balance of the Class A Certificates as of the
Trust acquired prior to the end of the Pre-Funding Period and (ii) under certain
circumstances relating to the qualification of either the Lower-Tier REMIC or
the Upper-Tier REMIC as a REMIC under the Code the Mortgage Loans in the Trust
may be sold, thereby effecting the early retirement of the Class R-II
Certificates.
The Trustee shall give written notice of termination of the
Pooling and Servicing Agreement to each Owner in the manner set forth therein.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth and referred to on the face hereof, the
transfer of this Certificate is registrable in the Register upon surrender of
this Certificate for registration of transfer at the office designated as the
location of the Register duly endorsed by, or accompanied by a written
instrument of transfer in the form required by the Pooling and Servicing
Agreement duly executed by, the Owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Certificates of like Class, tenor and
aggregate fractional undivided interest in the Trust will be issued to the
designated transferee or transferees.
The Trustee is required to furnish certain information on each
Payment Date to the Owner of this Certificate, as more fully described in the
Pooling and Servicing Agreement.
As provided in the Pooling and Servicing Agreement and subject
to certain limitations therein set forth, Class R-II Certificates are
exchangeable for new Class R-II Certificates evidencing the same Percentage
Interest as the Class R-II Certificates exchanged.
No service charge will be made for any such registration of
transfer or exchange, but the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The Trustee and any agent of the Trustee may treat the Person
in whose name this Certificate is registered as the owner hereof for all
purposes, and neither the Trustee or any such agent shall be affected by notice
to the contrary.
B-5-5
182
IN WITNESS WHEREOF, the Trustee has caused this Certificate to
be duly executed, pursuant to the provisions of the Pooling and Servicing
Agreement.
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:
---------------------------------
Name:
Title:
Trustee Authentication
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A.,
as Trustee
By:
-----------------------------------
Name:
Title:
B-5-6
183
EXHIBIT C
FORM OF NOTICE OF ESTABLISHMENT OF
PRINCIPAL AND INTEREST ACCOUNT
Bankers Trust Company
of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: Corporate Trust Administration
Ladies & Gentlemen:
In accordance with Section 8.08 of the Pooling and Servicing
Agreement dated as of August 1, 2000 between Bankers Trust Company of
California, N.A., as trustee (the "Trustee"), Advanta Mortgage Corp. USA, as
master servicer (the "Master Servicer"), and Advanta Conduit Receivables, Inc.,
as sponsor, please be advised that the Master Servicer has established the
Principal and Interest Account in trust for the Trustee, as follows:
BANK ACCOUNT NUMBER
------------------------------ ----------------------------------
------------------------------ ----------------------------------
Very truly yours,
ADVANTA MORTGAGE CORP. USA
By:
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
Dated: August 22, 2000
[Evidence of Establishment of Principal and Interest Account]
C-1
184
EXHIBIT D
FORM OF TRUSTEE'S ACKNOWLEDGMENT OF RECEIPT
Bankers Trust Company of California, N.A., a national banking
association, in its capacity as trustee (the "Trustee") under that certain
Pooling and Servicing Agreement dated as of August 1, 2000 (the "Pooling and
Servicing Agreement") by and among Advanta Conduit Receivables, Inc., a Nevada
corporation, as sponsor (the "Sponsor"), Advanta Mortgage Corp. USA, a Delaware
corporation, as master servicer, and the Trustee, hereby acknowledges receipt of
the items delivered to it by the Sponsor with respect to the Mortgage Loans
listed on Schedule 1 of the Pooling and Servicing Agreement, except as set forth
on the exception report (the "Exception Report") attached hereto.
The Trustee hereby additionally acknowledges that it shall
review such items (i) to confirm that an original Note is contained in the file
within 10 Business Days after the Startup Day and (ii) as required by Section
3.06(a) of the Pooling and Servicing Agreement, during the period specified
therein, and shall otherwise comply with Section 3.06(b) of the Pooling and
Servicing Agreement as required thereby.
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee
By:
-----------------------------------
Name:
Title:
Dated: August 22, 2000
D-1
185
SCHEDULE TO EXHIBIT D
EXCEPTION REPORT
D-2
186
EXHIBIT E
FORM OF CERTIFICATION
WHEREAS, the undersigned is an Authorized Officer of Bankers
Trust Company of California, N.A., a national banking association, acting in its
capacity as trustee (the "Trustee") of a certain pool of mortgage loans (the
"Pool") heretofore conveyed in trust to the Trustee, pursuant to that certain
Pooling and Servicing Agreement dated as of August 1, 2000 (the "Pooling and
Servicing Agreement") by and among Advanta Conduit Receivables, Inc., a Nevada
corporation, as sponsor (the "Sponsor"), Advanta Mortgage Corp. USA, a Delaware
corporation, as master servicer, and the Trustee; and
WHEREAS, the Trustee is required, pursuant to Section 3.06(a)
of the Pooling and Servicing Agreement, to review the Mortgage Files relating to
the Pool within a specified period following the Startup Day and to notify the
Sponsor promptly of any defects with respect to the Pool, and the Sponsor is
required to remedy such defects or take certain other action, all as set forth
in Section 3.06(b) of the Pooling and Servicing Agreement; and
WHEREAS, Section 3.06(a) of the Pooling and Servicing
Agreement requires the Trustee to deliver this Certification upon the
satisfaction of certain conditions set forth therein.
NOW, THEREFORE, it has determined that all required documents
(or certified copies of documents listed in Section 3.05 of the Pooling and
Servicing Agreement) have been executed or received, and that such documents
relate to the Initial Mortgage Loans identified in the Schedules of Mortgage
Loans pursuant to Section 3.05(a) of the Pooling and Servicing Agreement. In the
event that such documents have not been executed and received or do not relate
to the Initial Mortgage Loans, any remedial action by the Sponsor pursuant to
Section 3.06(b) of the Pooling and Servicing Agreement has been completed. The
Trustee makes no certification hereby, however, with respect to any intervening
assignments or assumption and modification agreements.
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A., as trustee
By:
------------------------------------
Name:
Title:
Dated:
-----------------
E-1
187
EXHIBIT F
FORM OF DELIVERY ORDER
August 22, 2000
Bankers Trust Company
of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, XX 00000
Attention: Corporate Trust Administration
Ladies and Gentlemen:
Pursuant to Article IV of the Pooling and Servicing Agreement,
dated as of August 1, 2000 (the "Pooling and Servicing Agreement") by and among
Advanta Conduit Receivables, Inc., a Nevada corporation, as sponsor (the
"Sponsor"), Advanta Mortgage Corp. USA, as master servicer, and Bankers Trust
Company of California, N.A., as trustee, the Sponsor hereby certifies that all
conditions precedent to the issuance of Advanta Mortgage Loan Trust 2000-2,
Mortgage Loan Asset-Backed Certificates (the "Certificates") have been satisfied
and hereby requests you to authenticate and deliver said Certificates as set
forth on Attachment A hereto, and to release said Certificates to the Owners
thereof, or otherwise upon their order.
Very truly yours,
ADVANTA CONDUIT RECEIVABLES, INC.
By:
---------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
F-1
188
EXHIBIT G
FORM OF CLASS R-I AND CLASS R-II
TAX MATTERS TRANSFER CERTIFICATE
AFFIDAVIT PURSUANT TO SECTION 860E(e)
OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED
STATE OF )
) ss:
COUNTY OF )
[NAME OF OFFICER], being first duly sworn, deposes and says:
1. That he is [Title of Officer] of [Name of Investor] (the
"Investor"), a [savings institution] [corporation] duly organized and existing
under the laws of [the State of __________] [the United States], on behalf of
which he makes this affidavit.
2. That (i) the Investor is not a "disqualified organization"
and will not be a "disqualified organization" as of [date of transfer] (For this
purpose, a "disqualified organization" means the United States, any state or
political subdivision thereof, any foreign government, any international
organization, any agency or instrumentality of any of the foregoing (other than
certain taxable instrumentalities), any cooperative organization furnishing
electric energy or providing telephone service to persons in rural areas, or any
organization (other than a farmers' cooperative) that is exempt from federal
income tax unless such organization is subject to the tax on unrelated business
income); (ii) it is not acquiring the Class [R-I/R-II] Certificates for the
account of disqualified organization; (iii) it consents to any amendment of the
Pooling and Servicing Agreement that shall be deemed necessary by the Trustee
(upon advice of counsel) to constitute a reasonable arrangement to ensure that
the Class [R-I/R-II] Certificates will not be owned directly or indirectly by a
disqualified organization; and (iv) it will not transfer any such Class
[R-I/R-II] Certificate unless (a) it has received from the transferee an
affidavit in substantially the same form as this affidavit containing these same
four representations and (b) as of the time of the transfer, it does not have
actual knowledge that such affidavit is false.
IN WITNESS WHEREOF, the Investor has caused this instrument to
be executed on its behalf, pursuant to authority of its Board of Directors, by
its [Title of Officer] and its corporate seal to be hereunto attached, attested
by its [Assistant] Secretary, this __ day of __________, ____.
[NAME OF INVESTOR]
By:
------------------------------
[Name of Officer]
[Title of Officer]
G-1
189
[Corporate Seal]
Attest:
---------------------------
[Assistant] Secretary
Personally appeared before me the above-named [Name of
Officer], known or proved to be the same person who executed the foregoing
instrument and to be the [Title of Officer] of the Investor, and acknowledged to
me that he executed the same as his free act and deed and the free act and deed
of the Investor.
Subscribed and sworn before me this ____ day of _______, ____.
----------------------------
NOTARY PUBLIC
COUNTY OF
-------------------
STATE OF
--------------------
My commission expires the ____ day of __________, ____.
G-2
190
EXHIBIT H
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that I, _____________,
______________ of Advanta Conduit Receivables, Inc. (the "Sponsor"), do hereby
constitute and appoint Bankers Trust Company of California, N.A., as the true
and lawful attorney, for the Sponsor and in its name, place and stead, to record
the assignments of mortgage with respect to the Mortgage Loans transferred to
the Bankers Trust Company of California, N.A., as trustee (the "Trustee"), under
that Pooling and Servicing Agreement dated as of August 1, 2000 by and among the
Sponsor, the Trustee and Advanta Mortgage Corp. USA, as master servicer, and to
do and perform all other things and acts relating to such assignments of
mortgage as may be necessary to effectuate the transfer of such Mortgage Loans
to the Trustee, including the execution and delivery of new assignments of
mortgage where necessary to comply with applicable real estate recording laws at
the time of recordation.
This power of attorney is irrevocable and is coupled with an
interest in the Mortgage Loans, and it may at all times be relied upon by any
person, firm or corporation dealing with the attorney named herein as remaining
in full force and effect, and such person, firm or corporation shall have no
liability to the Sponsor with respect thereto.
WITNESS the following signature this ____ day of ___________
_____.
------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
STATE OF PENNSYLVANIA
COUNTY OF XXXXXXXXXX
I, _____________, a Notary Public in and for the jurisdiction
aforesaid, do hereby certify that _______________, who acknowledged himself to
be the _______________ of Advanta Conduit Receivables, Inc., a Nevada
corporation, personally appeared before me in the jurisdiction aforesaid and
that he as such ______________ executed the foregoing instrument on behalf of
said corporation for the purposes therein contained.
Witness my hand and official seal this _____ day of _________________.
(SEAL)
----------------------------------
Notary Public
My Commission Expires:
H-1
191
EXHIBIT I
FORM OF MONTHLY REPORT
Advanta Conduit Receivables, Inc.
Mortgage Loan Asset-Backed Certificates
Series 2000-2
Statement to Certificateholders
PRIOR
ORIGINAL FACE PRINCIPAL CURRENT
CLASS VALUE BALANCE INTEREST PRINCIPAL TOTAL PRINCIPAL BALANCE
---------------- ------------------- ---------------- ---------------- --------------- ----------- ------------------
X-0
X-0
X-0
X-0
X-0
X-0
X
BS
R-I
R-II
---------------- ------------------- ---------------- ---------------- --------------- ----------- ------------------
TOTALS
---------------- ------------------- ---------------- ---------------- --------------- ----------- ------------------
FACTOR INFORMATION PER $1000 OF ORIGINAL FACE PASS-THROUGH RATES
PRIOR CURRENT
PRINCIPAL PRINCIPAL
CLASS CUSIP BALANCE INTEREST PRINCIPAL TOTAL BALANCE CURRENT NEXT
-------------- ----------- --------------- --------------- --------------- ------------- ---------------- ------------ ---------
X-0
X-0
X-0
X-0
X-0
X-0
B
BS
R-I
R-II
SPONSOR: Advanta Conduit Receivables, Inc. ACCOUNT
SERVICER: Advanta Mortgage Corp. USA MANAGER:
-------------------
LEAD UNDERWRITER: Bear, Xxxxxxx & Co. Inc.
RECORD DATE:
DISTRIBUTION DATE:
FACTOR INFORMATION:
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192
Advanta Conduit Receivables, Inc.
Mortgage Loan Asset-Backed Certificates
Series 2000-2
Statement to Certificateholders
DISTRIBUTION DATE:
DELINQUENCY ADVANCES MADE:
ACCRUED SERVICING FEE FOR THE CURRENT PERIOD:
PLUS ADDITIONAL SERVICING FEES:
LESS PERMITTED REDUCTIONS TO SERVICING FEES:
TOTAL SERVICING FEES DUE MASTER SERVICER (INCLUDING MASTER SERVICING FEE):
COLLECTED SERVICING FEES FOR CURRENT PERIOD:
Total Delinquency (Excluding Foreclosure &
REO, Including delinquent bankruptcies) Loans in
------------------------------------------ Foreclosure
(Including
30-59 60-89 90+ bankruptcies
Days Days Days Total Delinquency in F/C)
---- ---- ---- ----------------- ------------
UPS-$
%-$
Loans-$
%-#
BOOK VALUE AND LOAN NUMBER OF REO PROPERTY:
NUMBER OF LOANS AS OF THE CURRENT DISTRIBUTION DATE:
NUMBER OF LOANS AS OF THE NEXT DISTRIBUTION DATE:
WEIGHTED AVERAGE COUPON AS OF THE CURRENT DISTRIBUTION DATE:
WEIGHTED AVERAGE COUPON AS OF THE NEXT DISTRIBUTION DATE:
I-2
193
SUBSTITUTION AMOUNTS:
LOAN PURCHASE PRICES
Bankruptcy
Proceedings
-----------
Loans -# UPB-$
Status
Current
Delinquent*
Foreclosure*
Total
Modified Loans
--------------
Loans-# UPS-$
Status
Current
Delinquent*
Foreclosure*
Total
* included in delinquency and foreclosure statistics above
CURTAILMENTS INCLUDED IN CURRENT DISTRIBUTION:
PREPAYMENTS IN FULL INCLUDED IN CURRENT DISTRIBUTION:
RECOVERIES OF PRINCIPAL INCLUDED IN CURRENT DISTRIBUTION:
CARRY-FORWARD AMOUNT:
AMOUNT OF OVERCOLLATERALIZATION INCREASE OR DECREASE:
INFORMATION PURSUANT TO
SECTION 6049(d)(7)(C):
PROJECTED EXCESS SPREAD:
BALANCE OF LARGEST LOAN:
I-3
194
TRUST ACTIVITY
CERTIFICATE ACCOUNT DEPOSIT
PROCEEDS OF LIQUIDATION OF TRUST ESTATE:
AMOUNT OF DEPOSIT IN THE CERTIFICATE ACCOUNT:
LOAN PURCHASE PRICE AMOUNTS:
SUBSTITUTION AMOUNT:
INVESTMENT EARNINGS: ON CERT. ACCT.
MONTHLY REMITTANCE FOR EACH CLASS:
AMOUNT WITHDRAWN FROM CERTIFICATE ACCOUNT
AND DEPOSITED IN THE EXPENSE ACCOUNT:
AMOUNT WITHDRAWN FROM CERTIFICATE ACCOUNT
AND DISTRIBUTED TO SUBORDINATED CERTIFICATES:
AMOUNT REMAINING IN CERTIFICATE ACCOUNT:
PREMIUM AMOUNT:
I-4
195
EXHIBIT J
FORM OF MASTER SERVICER'S TRUST RECEIPT
To: Bankers Trust Company
of California, N.A.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: Corporate Trust
Date:
In connection with the administration of the Mortgage Loans
held by you as Trustee under a certain Pooling and Servicing Agreement dated as
of August 1, 2000 by and among Advanta Mortgage Corp. USA, as master servicer
(the "Master Servicer"), Advanta Conduit Receivables, Inc., as sponsor, and you,
as trustee (the "Agreement"), the Master Servicer hereby requests a release of
the Mortgage File held by you as Trustee with respect to the following Mortgage
Loan for the reason indicated below:
Mortgagor's Name:
Loan No.:
Reason for requesting file:
_______ 1. Mortgage Loan paid in full.
(The Master Servicer hereby certifies that all
amounts received in connection with the loan have
been or will be credited to the Certificate Account
(whichever is applicable) pursuant to the Agreement.)
_______ 2. Mortgage Loan repurchased pursuant to Section 3.03, 3.04,
3.06(b) or 8.10 of the Agreement.
(The Master Servicer hereby certifies that the Loan
Purchase Price has been or will be paid to the
Certificate Account pursuant to the Agreement.)
_______ 3. Mortgage Loan substituted.
(The Master Servicer hereby certifies that a
Qualified Replacement Mortgage has been or will be
assigned and delivered to you along with the related
Mortgage File pursuant to the Agreement.)
J-1
196
_______ 4. The Mortgage Loan is being foreclosed.
_______ 5. Other. (Describe)
The undersigned acknowledges that the above File will be held
by the Master Servicer in accordance with the provisions of the Agreement and
will be returned to you, unless the Mortgage Loan has been (i) paid in full,
(ii) repurchased, (iii) substituted by a Qualified Replacement Mortgage (in
which case the Mortgage File will be retained by us permanently) or (iv) is
being foreclosed, in which case the Mortgage File will be returned when no
longer required by us for such purpose.
Capitalized terms used herein shall have the meanings ascribed
to them in the Agreement.
ADVANTA MORTGAGE CORP. USA
By
-------------------------------
Name:
Title:
J-2
197
EXHIBIT K
FORM OF LOST NOTE AFFIDAVIT
AFFIDAVIT OF LOST NOTE
Loan # : Note Date:
Current Borrower(s) :
I, ___________________, being duly sworn, do hereby state under oath that:
1. I, as [Title] of _________________ (the "Lender"), am authorized to make
this affidavit.
2. The Lender is the payee under the mortgage note ("Note"). A mortgage/deed
of trust ("Security Instrument") signed by the Borrower(s) refers to the
note made of even date. The Security Instrument is attached as Exhibit 1.
3. The Lender is the lawful owner of the Note and has good title to the Note
and has the right to convey good title thereto, and the Lender has not
canceled, altered, assigned or hypothecated the Note except to the Sponsor
and the Trustee.
4. The Note was not located after a thorough and diligent search which
consisted of the following actions:
Searching of all servicing and collateral loan files
Querying the loan servicing employees
5. Attached hereto as Exhibit 1 is a true and correct copy of the Security
Instrument with an original note endorsement in blank by Lender.
6. This Affidavit is intended to be relied on by [Advanta entity], its
successors, and assigns.
7. Following the assignment of the Note to the Trustee, the Trustee will be
entitled to enforce the Note pursuant to Section 3-309 of the Uniform
Commercial Code.
Executed this ___ day of ______, 20__, on behalf of the Lender by:
By:
---------------------------------
Name:
Title:
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