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Exhibit 4.4
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Execution Copy
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MASTER LOAN TRANSFER AGREEMENT
Dated as of May 1, 1999
by and among
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK
ADVANTA BANK CORP.
ADVANTA FINANCE CORP.,
as Affiliated Originators
ADVANTA CONDUIT RECEIVABLES, INC.
as an Affiliate
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
and
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
as Sponsor
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TABLE OF CONTENTS
Page
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Section 1. Definitions..........................................................................1
Section 2. Interest Calculations................................................................3
Section 3. Transfers of Mortgage Loans..........................................................3
Section 4. Representations, Warranties and Covenants Regarding the
Affiliated Originators and the Sponsor...............................................3
Section 5. Representations and Warranties of the Affiliated Originators
Regarding the Mortgage Loans ........................................................8
Section 6. Authorized Representatives..........................................................14
Section 7. Notices.............................................................................14
Section 8. Governing Law.......................................................................15
Section 9. Assignment..........................................................................15
Section 10. Counterparts........................................................................15
Section 11. Amendment...........................................................................15
Section 12. Severability of Provisions..........................................................15
Section 13. No Agency; No Partnership or Joint Venture..........................................15
Section 14. Further Assurances..................................................................15
Section 15. The Certificate Insurer.............................................................15
Section 16. Maintenance of Records..............................................................16
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THIS MASTER LOAN TRANSFER AGREEMENT, dated as of May 1, 1999,
between Advanta Mortgage Corp. USA, Advanta Mortgage Corp. Midatlantic, Advanta
Mortgage Corp. Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta Mortgage
Corp. Northeast, Advanta Mortgage Conduit Services, Inc., Advanta Finance Corp.,
Advanta Bank Corp. and Advanta National Bank, each a seller (each an "Affiliated
Originator" and collectively, the "Affiliated Originators"), Advanta Conduit
Receivables, Inc. (the "Affiliate"), Bankers Trust Company of California, N.A.,
as trustee ("Trustee") and Advanta Mortgage Conduit Services, Inc., as sponsor
("Sponsor");
I. BACKGROUND
A. Each Affiliated Originator is an originator or purchaser of mortgage
loans which such Affiliated Originator may, from time to time, convey to a
Warehouse Trust;
B. The Affiliated Originators and the Sponsor expect, from time to
time, to cause such mortgage loans to be conveyed to the Advanta Trust in
connection with a securitization transaction sponsored by the Sponsor.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements herein contained, the parties hereto hereby agree as follows:
Section 1. Definitions. Whenever used in this Agreement or in
any Conveyance Agreement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Section; provided,
however, that any capitalized terms used herein or in any Conveyance Agreement
and not defined herein shall have their respective meanings as set forth in the
Advanta Pooling Agreement.
Advanta Pooling Agreement: The Pooling and Servicing Agreement
dated as of May 1, 1999, by and among Advanta Mortgage Conduit Services, Inc. as
Sponsor, Advanta Mortgage Corp. USA, as Master Servicer and Bankers Trust
Company of California, N.A., as Trustee.
Advanta Trust: The Advanta Mortgage Loan Trust 1999-2.
Agreement: This Master Loan Transfer Agreement as it may be
amended from time to time, including the exhibits and supplements hereto.
Bulk Acquisition Loan: Any Mortgage Loan purchased by an
Affiliated Originator from an Unaffiliated Originator as part of a bulk
portfolio acquisition.
Conveyance Agreement: Any conveyance agreement relating to a
Mortgage Pool, in substantially the form set forth as Exhibit A hereto.
Coupon Rate: The rate of interest borne by each Note.
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Cut-Off Date: With respect to any Mortgage Pool, the date
defined as such defined in the related Conveyance Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
FHLMC: 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.
First Mortgage Loan: A Mortgage Loan which constitutes a first
priority mortgage lien with respect to any Mortgaged Property.
FNMA: 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.
Junior Mortgage Loan: A Mortgage Loan which constitutes a
junior priority mortgage lien with respect to the related Mortgaged Property.
Loan Balance: With respect to each Mortgage Loan, the
outstanding principal balance thereof on the related Cut-Off Date, less any
related payments of principal relating to such Mortgage Loan that were
transferred by the Master Servicer or any Sub-Servicer to the Trustee for
deposit in the Certificate Account.
Master Servicer: Advanta Mortgage Corp. USA, a Delaware
corporation, and its permitted successors and assigns.
Mortgage File: The documents delivered to the Trustee pursuant
to the document delivery provisions of the Advanta Pooling Agreement pertaining
to a particular Mortgage Loan, together with any additional documents required
to be added to the Mortgage File pursuant to the Advanta Pooling Agreement.
Mortgage Loans: Each of the mortgage loans subject hereto,
together with any Qualified Replacement Mortgages substituted therefor in
accordance with the Advanta Pooling Agreement.
Mortgage Pool: Any group of Mortgage Loans transferred to the
Sponsor and/or to the Advanta Trust pursuant to a specific Conveyance Agreement.
Mortgaged Property: The underlying Mortgaged Property securing
a Mortgage Loan.
Note: The note or other evidence of indebtedness evidencing
the indebtedness of a Mortgagor under a Mortgage Loan.
Offered Certificates: The Class A Certificates issued by the
Advanta Trust.
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Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Qualified Mortgage: "Qualified Mortgage" shall have 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
Advanta Trust.
Schedule of Mortgage Loans: The Schedule of Mortgage Loans
required to be delivered pursuant to the Advanta Pooling Agreement.
Trustee: Bankers Trust Company of California, N.A., located on
the date of execution of this Agreement at 0 Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000, a national banking association, not in its individual capacity but solely
as Trustee, and any successor hereunder.
Unaffiliated Originator Loan: Any Mortgage Loan purchased by
an Affiliated Originator from an Unaffiliated Originator.
Unaffiliated Originators: Any Originator not affiliated with
the Sponsor.
Warehouse Trust: Any trust established by the Sponsor or an
affiliate of the Sponsor to finance the origination of mortgage loans.
Section 2. Interest Calculations. Calculations of interest
hereunder, including, without limitation, calculations of interest at the Coupon
Rate, which are made in respect of the Loan Balance of a Mortgage Loan shall be
made on a daily basis using any of the following (i) a 360-day year comprised of
twelve 30-day months, (ii) a 360-day year and the actual number of days elapsed
in the applicable interest period, or (iii) a 365-day year and the actual number
of days elapsed in the applicable interest period, as specified in the related
Note.
Section 3. Transfers of Mortgage Loans. From time to time the
Affiliated Originators and the Sponsor, intend to transfer Mortgage Loans to the
Sponsor pursuant to a Conveyance Agreement in substantially the form of Exhibit
A hereto. The Sponsor will then transfer the Mortgage Loans to the Advanta
Trust.
Section 4. Representations, Warranties and Covenants Regarding
the Affiliated Originators and the Sponsor. (a) Each Affiliated Originator
hereby represents and warrants to the Sponsor, the Trustee and their respective
successors and assigns that, as of the date hereof;
(i) Such Affiliated Originator is a corporation (or, in the
case of Advanta National Bank USA, a national banking association, and,
in the case of Advanta Bank Corp., a Utah industrial loan corporation)
duly organized, validly existing and in good standing under the laws
governing its creation and existence 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
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qualification necessary. Each Affiliated Originator 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, to enter into and discharge its obligations under this
Agreement and the Conveyance Agreements.
(ii) The execution and delivery of this Agreement by each
Affiliated Originator and its performance and compliance with the terms
of this Agreement and the Conveyance Agreements to which it is a party
have been duly authorized by all necessary corporate action on the part
of such Affiliated Originator and will not violate such Affiliated
Originator's Articles of Incorporation, Articles of Association 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 a
breach of, any material contract, agreement or other instrument to
which such Affiliated Originator or its properties is a party or by
which such Affiliated Originator 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 such Affiliated Originator or
any of its properties.
(iii) This Agreement and the Conveyance Agreements to which
such Affiliated Originator 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 such Affiliated
Originator, enforceable against it in accordance with the terms hereof,
except as the enforcement 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).
(iv) Such Affiliated Originator 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 such Affiliated
Originator or its properties, or might have consequences that would
materially and adversely affect its performance hereunder and under the
Conveyance Agreements to which such Affiliated Originator is a party,
or which would draw into question the validity of this Agreement or the
Mortgage Loans taken as a whole or of any action taken or to be taken
in connection with the obligations of the Affiliated Originator
contemplated herein.
(v) No litigation is pending or, to the best of such
Affiliated Originator's knowledge, threatened against such Affiliated
Originator which litigation might have consequences that would prohibit
its entering into this Agreement or any Conveyance Agreements to which
it is a party or might have consequences that would materially and
adversely affect its performance hereunder and under the Conveyance
Agreements to which such Affiliated Originator is a party.
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(vi) Neither this Agreement nor any certificate of an officer,
statement furnished in writing or report delivered pursuant to the
terms hereof by such Affiliated Originator 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.
(vii) Upon the receipt of each Mortgage Loan and other items
of the Mortgage Files by the Trustee under this Agreement, the Advanta
Trust will have good and marketable title to such Mortgage Loan and
such other items of the Mortgage File free and clear of any lien (other
than liens which will be simultaneously released).
(viii) Neither such Affiliated Originator nor any affiliate
thereof will report on any financial statement any part of the
Servicing Fee as an adjustment to the sales price of the Mortgage
Loans.
(ix) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc., under any state
securities laws, real estate syndication or "Blue Sky" statutes, as to
which such Affiliated Originator makes no such representation or
warranty), that are necessary or advisable in connection with the sale
of the Mortgage Loans and the execution and delivery by such Affiliated
Originator of this Agreement and the Conveyance Agreements 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 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 Conveyance Agreements on the part of such Affiliated
Originator and the performance by such Affiliated Originator of its
obligations under this Agreement and such of the Conveyance Agreements
to which it is a party.
(x) The origination practices used by such Affiliated
Originator with respect to the Mortgage Loans have been, (i) in all
material respects, legal, proper, prudent and customary in the mortgage
loan lending business and (ii) in compliance with the Master Servicer's
underwriting criteria as described in the Prospectus.
(xi) The transactions contemplated by this Agreement are in
the ordinary course of business of such Affiliated Originator. The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Master Servicer pursuant to this Agreement are not
subject to the bulk transfer laws or any similar statutory provisions
in effect in any applicable jurisdiction.
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(xii) Such Affiliated Originator received fair consideration
and reasonably equivalent value in exchange for the sale of the
interests in the Mortgage Loans.
(xiii) Such Affiliated Originator did not sell any interest in
any Mortgage Loan with any intent to hinder, delay or defraud any of
its respective creditors.
(xiv) Such Affiliated Originator is solvent, and such
Affiliated Originator will not be rendered insolvent as a result of the
sale of the Mortgage Loans to the Advanta Trust.
The representations and warranties set forth in this paragraph (a) shall survive
the sale and assignment of the Mortgage Loans to the Sponsor.
In addition, each Affiliated Originator hereby covenants to
perform the obligations, if any, imposed upon it by the Advanta Pooling
Agreement.
(b) The Sponsor hereby represents and warrants to each
Affiliated Originator and the Trustee that, as of the date hereof:
(i) The Sponsor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all licenses and qualifications necessary to carry on its
business as now being conducted and to perform its obligations
hereunder; the Sponsor has the power and authority to execute and
deliver this Agreement and to perform its obligations in accordance
herewith; the execution, delivery and performance of this Agreement
(including any Conveyance Agreement and any other instruments of
transfer to be delivered pursuant to this Agreement) by the Sponsor and
the consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action and do not
violate the organization documents of the Sponsor, contravene or
violate any law, regulation, rule, order, judgement or decree to which
the Sponsor or its properties are subject or contravene, violate or
result in any breach of any provision of, or constitute a default
under, or result in the imposition of any lien on any assets of the
Sponsor pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking to which the Sponsor is a
party or which purports to be binding upon Sponsor or any of Sponsor's
assets; this Agreement evidences the valid and binding obligation of
the Sponsor enforceable against the Sponsor in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditor's
rights generally or the application of equitable principles in any
proceeding, whether at law or in equity;
(ii) 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
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other governmental authority or agency, that are necessary in
connection with the execution and delivery by the Sponsor of this
Agreement, have been duly taken, given or obtained, as the case may be,
are in full force and effect, are not subject to any pending
proceedings or appeals (administrative, judicial or otherwise) and
either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be
obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement on the
part of the Sponsor and the performance by the Sponsor of its
obligations under this Agreement;
(iii) There is no action, suit, proceeding or investigation
pending or, to the best of the Sponsor's knowledge, threatened against
the Sponsor which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Sponsor or in any
material impairment of the right or ability of the Sponsor to carry on
its business substantially as now conducted, or in any material
liability on the part of the Sponsor or which would draw into question
the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Sponsor contemplated herein, or
which would be likely to impair the ability of the Sponsor to perform
under the terms of this Agreement; and
(iv) The Sponsor has the right to cause or request the
transfer of the Mortgage Loans subject to a Warehouse Trust to the
Advanta Trust or to direct or request the Advanta Trust to acquire such
Mortgage Loans.
The representations and warranties set forth in this paragraph (b) shall survive
the sale and assignment of the Mortgage Loans to the Sponsor. Upon discovery of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Affiliated Originator, the Affiliated
Originator shall give prompt written notice to the Sponsor. Within 30 days of
its receipt of notice of breach, the Sponsor shall cure such breach in all
material respects.
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Section 5. Representations and Warranties of the Affiliated
Originators Regarding the Mortgage Loans. (a) Set forth in paragraph (b) below
is a listing of representations and warranties which will be deemed to have been
made by each Affiliated Originator in connection with the Mortgage Loans such
Affiliated Originator will convey to the Sponsor and/or the Advanta Trust. In
addition, a Conveyance Agreement may, with respect to the Mortgage Loans in the
related Mortgage Pool, delete or modify any of such representations and
warranties, or may add additional representations and warranties ("Additional
Representations and Warranties"). The representations and warranties listed in
paragraph (b) below, together with any Additional Representations and
Warranties, are the "Representations and Warranties". Reference to the Cut-Off
Date is as of the Cut-Off Date set forth in the related Conveyance Agreement
with respect to a Mortgage Loan.
(b) With respect to each Mortgage Loan, each Affiliated
Originator hereby represents, warrants and covenants to the Sponsor and the
Trustee, as of the related Cut-Off Date, as follows, on which representations,
warranties and covenants the Trustee relies in accepting the Mortgage Loans,
with respect to the Mortgage Loans conveyed by such Affiliated Originator:
(i) The information with respect to each Mortgage Loan set
forth in the Schedule of Mortgage Loans is true and correct;
(ii) All of the original or certified documentation required
to be delivered to the Trustee pursuant to the Advanta Pooling
Agreement (including all material documents related thereto) with
respect to each Mortgage Loan has been or will be delivered to the
Trustee in accordance with the terms of the Advanta Pooling Agreement.
Each of the documents and instruments specified to be included therein
has been duly executed and is in due and proper form, and each such
document or instrument is in a form generally acceptable to prudent
mortgage lenders that regularly originate or purchase mortgage loans
comparable to the Mortgage Loans for sale to prudent investors in the
secondary market that invest in mortgage loans such as the Mortgage
Loans.
(iii) Each Mortgage Loan being transferred to the Sponsor is a
Qualified Mortgage;
(iv) Each Mortgaged Property is improved by a single
(one-to-four) family residential dwelling, which may include
manufactured homes which qualify as eligible for inclusion in a REMIC,
condominiums and townhouses; provided, however, that no more than 10.0%
by aggregate principal balance of the Mortgage Loans as of the Initial
Cut-Off Date are leasehold mortgages;
(v) No Mortgage Loan had a Combined Loan-to-Value Ratio in
excess of 100%;
(vi) Each Mortgage is either a valid and subsisting first,
second or third lien of record on the Mortgaged Property (subject in
the case of any
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Junior Mortgage Loan only to a Senior Lien on such Mortgaged Property)
and subject in all cases to the exceptions to title set forth in the
title insurance policy, with respect to the related Mortgage Loan,
which exceptions are generally acceptable to banking institutions in
connection with their regular mortgage lending activities, and such
other exceptions to which similar properties are commonly subject and
which do not individually, or in the aggregate, materially and
adversely affect the benefits of the security intended to be provided
by such Mortgage;
(vii) Immediately prior to the transfer and assignment herein
contemplated, each Affiliated Originator and each Warehouse Trust held
good and indefeasible title to, and was the sole owner of, each
Mortgage Loan conveyed by such Affiliated Originator or such Warehouse
Trust, as applicable, subject to no liens, charges, mortgages,
encumbrances or rights of others except liens which will be released
simultaneously with such transfer and assignment; and immediately upon
the transfer and assignment herein contemplated, the Trustee will hold
good and indefeasible title to, and be the sole owner of, each Mortgage
Loan subject to no liens, charges, mortgages, encumbrances or rights of
others except liens which will be released simultaneously with such
transfer and assignment;
(viii) No Mortgage Loans are 30 or more days Delinquent as of
the Cut-Off Date, except for any portion of the Mortgage Loans which
the Advanta Pooling Agreement so permits;
(ix) To the best knowledge of such Affiliated Originator,
there is no delinquent tax or assessment lien or mechanic's lien on any
Mortgaged Property, and each Mortgaged Property is free of substantial
damage and is in good repair;
(x) To the best knowledge of such Affiliated Originator, there
is no valid and enforceable right of rescission offset, defense or
counterclaim to any Note or Mortgage, including the obligation of the
related Mortgagor to pay the unpaid principal of or interest on such
Note or the defense of usury, nor will the operation of any of the
terms of the Note or the Mortgage, or the exercise of any right
thereunder, render either the Note or the Mortgage unenforceable in
whole or in part, or subject to any right of rescission, set-off,
counterclaim or defense, including the defense of usury, and no such
right of rescission, set-off, counterclaim or defense has been asserted
with respect thereto;
(xi) To the best knowledge of such Affiliated Originator,
there is no mechanics' lien or claim for work, labor or material
affecting any Mortgaged Property which is or may be a lien prior to, or
equal with, the lien of the related Mortgage except those which are
insured against by any title insurance policy referred to in paragraph
(xiii) below;
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(xii) Each Mortgage Loan at the time it was made complied in
all material respects with all applicable state and federal laws and
regulations, including, without limitation, the federal
Truth-in-Lending Act and other consumer protection laws, real estate
settlement procedure, usury, equal credit opportunity, disclosure and
recording laws;
(xiii) With respect to each Mortgage Loan, a title search or a
lender's title insurance policy, issued in standard California Land
Title Association form or American Land Title Association form, or
other form acceptable in a particular jurisdiction by a title insurance
company authorized to transact business in the state in which the
related Mortgaged Property is situated, in an amount at least equal to
the Original Principal Amount of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder of a
valid first, second or third mortgage lien of record on the real
Mortgaged Property described in the related Mortgage, as the case may
be, subject only to exceptions of the character referred to in
paragraph (vi) above, was effective on the date of the origination of
such Mortgage Loan, and, as of the Cut-Off Date such policy, if issued,
will be valid and thereafter such policy shall continue in full force
and effect;
(xiv) The improvements upon each Mortgaged Property are
covered by a valid and existing hazard insurance policy (which may be a
blanket policy of the type described in the Advanta Pooling Agreement)
with a generally acceptable carrier that provides for fire and extended
coverage representing coverage not less than the least of (A) the
outstanding principal balance of the related Mortgage Loan (together,
in the case of a Junior Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
full insurable value of the Mortgaged Property;
(xv) If the Mortgage Loan at the time of origination relates
to a Mortgaged Property in an area identified in the Federal Register
by the Federal Emergency Management Agency as having special flood
hazards, (which may be a blanket policy of the type described in the
Advanta Pooling Agreement) a flood insurance policy in a form meeting
the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable carrier is in effect with
respect to such Mortgaged Property in an amount representing coverage,
and which provides for a recovery by the Master Servicer 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;
(xvi) Each Mortgage and Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with
its terms, except only as such enforcement may be limited by
bankruptcy, insolvency,
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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 equity or at
law), and all parties to each Mortgage Loan had full legal capacity to
execute all documents relating to such Mortgage Loan and convey the
estate therein purported to be conveyed;
(xvii) Each Affiliated Originator has caused and will cause to
be performed any and all acts required to be performed to preserve the
rights and remedies of the Master Servicer in any Mortgage Insurance
Policy applicable to any Mortgage Loan delivered by such Affiliated
Originator or Warehouse Trust including, to the extent such Mortgage
Loan is not covered by a blanket policy described in the Advanta
Pooling Agreement, any necessary notifications of insurers, assignments
of policies or interests therein, and establishments of co-insured,
joint loss payee and mortgagee rights in favor of the Master Servicer;
(xviii) Each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof for
the benefit of the applicable Affiliated Originator, subject to the
provisions of Section 3.5(b) of the Advanta Pooling Agreement;
(xix) The terms of each Note and each Mortgage have not been
impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the
interest of the owners and which has been delivered to the Trustee. The
substance of any such alteration or modification is reflected on the
related Schedule of Mortgage Loans and has been approved by the primary
mortgage guaranty insurer, if any;
(xx) The proceeds of each Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to
make future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing or recording
such Mortgage Loans were paid;
(xxi) Except as otherwise required by law or pursuant to the
statute under which the related Mortgage Loan was made, the related
Note is not and has not been secured by any collateral, pledged account
or other security except the lien of the corresponding Mortgage;
(xxii) To the best knowledge of such Affiliated Originator, no
Mortgage Loan was originated under a buydown plan;
(xxiii) To the best knowledge of such Affiliated Originator,
no Mortgage Loan provides for negative amortization, has a shared
appreciation feature, or other contingent interest feature;
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(xxiv) Each Mortgaged Property is located in the state
identified in the Schedule of Mortgage Loans and consists of one or
more parcels of real Mortgaged Property with a residential dwelling
erected thereon;
(xxv) Each Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of the related Mortgage
Loan in the event the related Mortgaged Property is sold without the
prior consent of the mortgagee thereunder, except as may be otherwise
provided in the Advanta Pooling Agreement;
(xxvi) Any advances made after the date of origination of a
Mortgage Loan but prior to the Cut-Off Date, have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Schedule of
Mortgage Loans. No Note permits or obligates the Master Servicer, the
Sub-Servicer or the Sponsor to make future advances to the related
Mortgagor at the option of the Mortgagor;
(xxvii) To the best knowledge of such Affiliated Originator,
there is no proceeding pending or threatened for the total or partial
condemnation of any Mortgaged Property, nor is such a proceeding
currently occurring, and each Mortgaged Property is undamaged by waste,
fire, earthquake or earth movement, flood, tornado or other casualty,
so as to affect adversely the value of the Mortgaged Property as
security for the Mortgage Loan or the use for which the premises were
intended;
(xxviii) All of the improvements which were included for the
purposes of determining the Appraised Value of any Mortgaged Property
lie wholly within the boundaries and building restriction lines of such
Mortgaged Property, and no improvements on adjoining properties
encroach upon such Mortgaged Property, and, if a title insurance policy
exists with respect to such Mortgaged Property, are stated in such
title insurance policy and affirmatively insured;
(xxix) To the best knowledge of such Affiliated Originator, no
improvement located on or being part of any Mortgaged Property is in
violation of any applicable zoning law or regulation. All inspections,
licenses and certificates required to be made or issued with respect to
all occupied portions of each Mortgaged Property and, with respect to
the use and occupancy of the same, including but not limited to
certificates of occupancy and fire underwriting certificates, have been
made or obtained from the appropriate authorities and such Mortgaged
Property is lawfully occupied under the applicable law;
(xxx) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in
such Mortgage, and no fees or expenses are or will become payable by
the Sponsor or the Advanta Trust to the
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trustee under the deed of trust, except in connection with a trustee's
sale after default by the related Mortgagor;
(xxxi) With respect to each Junior Mortgage Loan, either (A)
no consent for such Mortgage Loan was required by the holder of the
related Senior Lien prior to the making of such Mortgage Loan or (B)
such consent has been obtained and is contained in the related Mortgage
File;
(xxxii) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Mortgaged Property of
the benefits of the security, including (A) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (B) otherwise by
judicial foreclosure. To the best knowledge of such Affiliated
Originator, there is no homestead or other exemption available which
materially interferes with the right to sell the related Mortgaged
Property at a trustee's sale or the right to foreclose the related
Mortgage;
(xxxiii) Except as provided by clause (viii) of this Section,
there is no default, breach, violation or event of acceleration
existing under any Mortgage or the related Note and no event which,
with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event
of acceleration; and the applicable Affiliated Originator has not
waived any default, breach, violation or event of acceleration;
(xxxiv) To the best knowledge of such Affiliated Originator,
no instrument of release or waiver has been executed in connection with
any Mortgage Loan, and no Mortgagor has been released, in whole or in
part, except in connection with an assumption agreement which has been
approved by the primary mortgage guaranty insurer, if any, and which
has been delivered to the Trustee;
(xxxv) To the best knowledge of such Affiliated Originator,
the maturity date of each Mortgage Loan which is a Junior Mortgage Loan
is at least twelve months prior to the maturity date of the related
first mortgage loan if such first mortgage loan provides for a balloon
payment;
(xxxvi) The credit underwriting guidelines applicable to each
Mortgage Loan conform in all material respects to the Sponsor's
underwriting guidelines;
(xxxvii) All parties to the Note and the Mortgage had legal
capacity to execute the Note and the Mortgage and each Note and
Mortgage have been duly and properly executed by such parties; and
(xxxviii) The related Affiliated Originator has no actual
knowledge that there exist on any Mortgaged Property any hazardous
substances, hazardous wastes or solid wastes, as such terms are defined
in the Comprehensive Environmental Response Compensation and Liability
Act, the Resource
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Conservation and Recovery Act of 1976, or other federal, state or local
environmental legislation.
(c) No Originator Payment Obligations. There is no obligation
on the part of the Master Servicer or any other party to make payments in
addition to those made by the Mortgagor except as specified in the Advanta
Pooling Agreement.
The Representations and Warranties shall survive the transfer
and assignment of the Mortgage Loans to the Advanta Trust. Upon discovery by any
Affiliated Originator or the Sponsor of a breach of any of the Representations
and Warranties, without regard to any limitation set forth in such
Representation or Warranty concerning the knowledge of the related Affiliated
Originator as to the facts stated therein, which breach, in the opinion of the
Sponsor, materially and adversely affects the interests of the Sponsor, the
Owners or the Certificate Insurer in the related Mortgage Loan or Mortgage
Loans, the party discovering such breach shall give prompt written notice to the
other party, and the related Affiliated Originator shall be required to take the
remedial actions required by the related Advanta Pooling Agreement within the
time periods required thereto. No Affiliated Originator shall be obliged to act
in regard to Mortgage Loans not conveyed by it. Each Affiliated Originator
hereby acknowledges that a breach of any of the Representations and Warranties
listed in clauses (iii), (x) and (xvi) above materially and adversely affects
the interests of the Advanta Trust, the related Owners and the Certificate
Insurer.
Section 6. Authorized Representatives. The names of the
officers of the Affiliated Originators and of the Sponsor who are authorized to
give and receive notices, requests and instructions and to deliver certificates
and documents in connection with this Agreement on behalf of the Affiliated
Originator and of the Sponsor ("Authorized Representatives") are set forth on
Exhibit B. From time to time, the Affiliated Originator and the Sponsor may, by
delivering to the Trustee a revised exhibit, change the information previously
given, but the Trustee shall be entitled to rely conclusively on the last
exhibit until receipt of a superseding exhibit.
Section 7. Notices. All demands, notices and communications
relating to this Agreement shall be in writing and shall be deemed to have been
duly given when received by the other party or parties at the address shown
below, or such other address as may hereafter be furnished to the other party or
parties by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee.
If to the Trustee:
Bankers Trust Company of California, N.A.
0 Xxxx Xxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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If to any Affiliated Originator or the Sponsor:
Advanta Mortgage Corp. USA
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mortgage Structured Finance
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Section 8. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to conflict of laws rules applied in the State of New York.
Section 9. Assignment. No party to this Agreement may assign
its rights or delegate its obligations under this Agreement without the express
written consent of the other parties, except as otherwise set forth in this
Agreement.
Section 10. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed to be an original, and together shall constitute and be one and the same
instrument.
Section 11. Amendment. This Agreement may be amended from time
to time by any of the Affiliated Originators, the Sponsor and the Trustee only
by a written instrument executed by such parties and with the prior written
consent of each of the other parties hereto and the Certificate Insurer.
Section 12. Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 13. No Agency; No Partnership or Joint Venture.
Neither the Affiliated Originators nor the Sponsor is the agent or
representative of the other, and nothing in this Agreement shall be construed to
make either the Affiliated Originator nor the Sponsor liable to any third party
for services performed by it or for debts or claims accruing to it against the
other party. Nothing contained herein nor the acts of the parties hereto shall
be construed to create a partnership or joint venture between the Sponsor and
the Affiliated Originator.
Section 14. Further Assurances. The Affiliated Originators and
Sponsor agree to cooperate reasonably and in good faith with one another in the
performance of this Agreement.
Section 15. The Certificate Insurer. The Certificate Insurer
is a third-party beneficiary of this Agreement. Any right conferred to the
Certificate Insurer shall
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be suspended during any period in which the Certificate Insurer is in default in
its payment obligation's under the related Certificate Insurance Policy. During
any period of suspension, the Certificate Insurer's rights hereunder shall vest
in the Owners of the Offered Certificates and shall be exercisable by the Owners
of at least a majority in Percentage Interest of the Offered Certificates then
outstanding. At such time as the related Offered Certificates are no longer
Outstanding under the Advanta Pooling Agreement and the Certificate Insurer has
been reimbursed for all Insured Payments to which it is entitled under the
Advanta Pooling Agreement, the Certificate Insurer's rights hereunder shall
terminate.
Section 16. Maintenance of Records. Each Affiliated Originator
shall each continuously keep an original executed counterpart of this Agreement
in its official records.
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IN WITNESS WHEREOF, the parties hereto have caused this Master
Loan Transfer Agreement to be duly executed by their respective officers, all as
of the day and year first above written.
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK
as Sellers and
ADVANTA CONDUIT RECEIVABLES, INC.
An Affiliate
By:/s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA BANK CORP.
as Seller
By:/s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President and CEO
ADVANTA MORTGAGE CONDUIT SERVICES,
INC. as Sponsor
By:/s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA FINANCE CORP.
By:/s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee and not in its individual
capacity
By:/s/ Xxxx XxXxxxx
--------------------------------
Name: Xxxx XxXxxxx
Title: Assistant Secretary
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EXHIBIT A
CONVEYANCE AGREEMENT
Advanta Mortgage Corp. USA, Advanta Mortgage Corp.
Midatlantic, Advanta Mortgage Corp. Midatlantic II, Advanta Mortgage Corp.
Midwest, Advanta Mortgage Corp. Northeast, Advanta Finance Corp., Advanta Bank
Corp. and Advanta National Bank, (each, an "Affiliated Originator"), Advanta
Conduit Receivables, Inc., as an Affiliate, and Advanta Mortgage Conduit
Services, Inc., as Sponsor, pursuant to the Master Loan Transfer Agreement dated
as of May 1, 1999 among themselves and Bankers Trust Company of California, N.A.
as Trustee (the "Master Transfer Agreement"), hereby confirm their understanding
with respect to the conveyance by each Affiliated Originator, each Warehouse
Trust the Affiliate and the Sponsor of those Mortgage Loans listed on the
attached Schedule of Mortgage Loans (the "Transferred Mortgage Loans") to the
Sponsor.
Conveyance of Transferred Mortgage Loans. Each Affiliated
Originator, the Affiliate and the Sponsor, concurrently with the execution and
delivery of this Conveyance Agreement, does hereby irrevocably transfer, assign,
set over and otherwise convey, and does direct the Trustee to convey to the
Sponsor and/or the Advanta Mortgage Loan Trust, without recourse (except as
otherwise explicitly provided for herein) all of its right, title and interest
in and to the Transferred Mortgage Loans being conveyed by it, including
specifically, without limitation, the Mortgages (as such term is defined in the
"Advanta Pooling Agreement"), the Mortgage Files and all other documents,
materials and properties appurtenant thereto and the Notes, including all
accrued interest and principal received by such Affiliated Originator on or with
respect to such Transferred Mortgage Loans on or after the related Cut-off Date,
together with all of its right, title and interest in and to the proceeds
received on or after the related Cut-off Date of any related Mortgage Insurance
Policies.
If an Affiliated Originator cannot deliver the original
Mortgage or mortgage assignment with evidence of recording thereon concurrently
with the execution and delivery of this Conveyance Agreement solely because of a
delay caused by the public recording office where such original Mortgage or
mortgage assignment has been delivered for recordation, such Affiliated
Originator shall promptly deliver to the Trustee such original Mortgage or
mortgage assignment with evidence of recording indicated thereon upon receipt
thereof from the public recording official.
The costs relating to the delivery of the documents specified
in this Conveyance Agreement shall be borne by each Affiliated Originator.
The Affiliated Originators hereby make the Representations and
Warranties set forth in Section 5(b) of the Master Transfer Agreement with
respect to the Transferred Mortgage Loans.
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The "Cut-Off Date" with respect to such Transferred Mortgage
Loans shall be ________,______.
All terms and conditions of the Master Transfer Agreement are
hereby incorporated herein, provided that in the event of any conflict the
provisions of this Conveyance Agreement shall control over the conflicting
provisions of the Master Transfer Agreement.
For purposes of this Conveyance Agreement, the "Advanta
Pooling Agreement" is the Pooling and Servicing Agreement dated as of May 1,
1999 relating to Advanta Mortgage Loan Trust 1999-2.
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Terms capitalized herein and not defined herein shall have
their respective meanings as set forth in the Master Transfer Agreement.
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK,
as Affiliated Originators
and
ADVANTA CONDUIT RECEIVABLES, INC.
as an Affiliate
By:_____________________________________________
Xxxxxxx Xxxx, Vice President
ADVANTA BANK CORP.,
as Seller
By:_____________________________________________
Name:
Title:
ADVANTA MORTGAGE CONDUIT SERVICES,
INC., as Sponsor
By:_____________________________________________
Xxxxxxx Xxxx, Vice President
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A., as Trustee
By:_____________________________________________
Name:
Title:
ADVANTA FINANCE CORP.
By:_____________________________________________
Name:
Title:
Dated:
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EXHIBIT B
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Master Loan Transfer
Agreement, dated as of May 1, 1999 (the "Agreement"), among Advanta Mortgage
Corp. USA, Advanta Mortgage Corp. Midatlantic, Advanta Mortgage Corp.
Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta Mortgage Corp.
Northeast, Advanta Finance Corp., Advanta Bank Corp. and Advanta National Bank,
as Affiliated Originators, Advanta Conduit Receivables, Inc., as an Affiliate,
Advanta Mortgage Conduit Services, Inc., as Sponsor and Bankers Trust Company of
California, N.A., as Trustee:
The following are the Affiliated Originators' Authorized
Representatives for purposes of the Agreement:
Name Title
---- -----
[Xxxxxxx Xxxx] [Vice President]
[Xxxxx XxXxxxx] [Vice President]
The following are the Sponsor's Authorized Representatives for
purposes of the Agreement:
Name Title
---- -----
[Xxxxxxx Xxxx] [Vice President]
[Xxxxx XxXxxxx] [Vice President]
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