1
PURCHASE AGREEMENT
among
ADVANTA BANK CORP.,
ADVANTA NATIONAL BANK
and
ADVANTA FINANCE CORP.
as the Originators
and
ADVANTA CONDUIT RECEIVABLES, INC.
as Purchaser
Dated as of April 1, 2000
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Table of Contents
Page
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ARTICLE I
Definitions.....................................................................................1
ARTICLE II
Procedures for Purchases of Mortgage Loans;
Conditions Precedent; Settlements...............................................................1
Section 2.01. Purchase and Sale....................................................2
Section 2.02. Delivery of Documents; Purchase of Mortgage Loans....................3
Section 2.03. Survival of Representations..........................................4
Section 2.04. Proceeds of Mortgage Loans...........................................4
Section 2.05. Repurchased Mortgage Loans...........................................4
ARTICLE III
Protective Security Interest....................................................................4
ARTICLE IV
Representations and Warranties..................................................................6
Section 4.01. Representations and Warranties of Originators........................6
Section 4.02. Representations and Warranties Regarding Mortgage Loans..............7
Section 4.03. Representations and Warranties of Purchaser..........................7
Section 4.04. Remedies for Breach of Representations and Warranties;
Repurchase Obligation................................................8
ARTICLE V
Covenants of Originators.......................................................................10
Section 5.01. Affirmative Covenants...............................................10
Section 5.02. Negative Covenants..................................................10
ARTICLE VI
Sale of Mortgage Loans by Purchaser............................................................11
ARTICLE VII
Additional Remedies............................................................................12
ARTICLE VIII
Term...........................................................................................12
ARTICLE IX
Exclusive Benefit of Parties; Assignment.......................................................12
ARTICLE X
Amendment; Waivers.............................................................................13
ARTICLE XI
Execution in Counterparts......................................................................13
ARTICLE XII
Effect of Invalidity of Provisions.............................................................13
ARTICLE XIII
Governing Law..................................................................................13
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ARTICLE XIV
Notices........................................................................................13
ARTICLE XV
Entire Agreement...............................................................................14
ARTICLE XVI
Indemnities....................................................................................14
ARTICLE XVII
RESPA Obligations..............................................................................15
ARTICLE XVIII
Survival.......................................................................................16
ARTICLE XIX
Consent to Service.............................................................................16
ARTICLE XX
Submission to Jurisdiction; Waiver of Trial by Jury............................................16
ARTICLE XXI
Construction...................................................................................16
ARTICLE XXII
Further Assurances.............................................................................17
ARTICLE XXIII
Third Party Beneficiary........................................................................17
ARTICLE XXIV
No Petition....................................................................................17
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PURCHASE AGREEMENT (the "Agreement") dated as of April 1, 2000, among
Advanta Bank Corp., a Utah industrial loan corporation ("ABC"), Advanta National
Bank, a national banking association ("ANB"), and Advanta Finance Corp., a
Nevada corporation ("AFC"), on one hand, and Advanta Conduit Receivables, Inc.,
a Nevada corporation ("Purchaser"), on the other hand. ABC, ANB and AFC are
sometimes individually referred to herein as an "Originator" and sometimes
collectively referred to herein as the "Originators."
WHEREAS, all of the Mortgage Loans were originated by the Originators;
WHEREAS, certain of the Mortgage Loans are owned by the Originators.
The remaining Mortgage Loans, which are indicated on the Schedule of Mortgage
Loans with Investor Codes 24, 25 and 27, were conveyed by the Originators to a
warehouse trust and are owned by the warehouse trust;
WHEREAS, the Originators desire to sell to Purchaser, and Purchaser
desires to purchase from the Originators, the Mortgage Loans owned by the
Originators, all in accordance with the terms and conditions set forth in this
Agreement; and
WHEREAS, Purchaser is purchasing the Mortgage Loans owned by the
warehouse trust from the warehouse trust pursuant to a certain Assignment, dated
as of April 27, 2000 (the "Assignment");
NOW, THEREFORE, in consideration of the premises, the mutual promises
herein made and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions
Except as otherwise specified herein, capitalized terms used in this
Agreement are defined in Annex 1 to the Indenture, dated as of April 1, 2000
(the "Indenture"), between Advanta Revolving Home Equity Loan Trust 2000-A and
Bankers Trust Company of California, N.A., as Indenture Trustee. A copy of Annex
1 to the Indenture is attached to this Agreement as Exhibit A. Defined terms
that are used only in one section or only in another definition may be omitted
from the list of defined terms in Annex 1. Defined terms include, as
appropriate, all genders and the plural as well as the singular.
ARTICLE II
Procedures for Purchases of Mortgage Loans;
Conditions Precedent; Settlements
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Section 2.01. Purchase and Sale. (a) The Originators hereby agree to,
and do hereby, sell, assign, transfer, convey and set over to Purchaser, and
Purchaser hereby agrees to, and does hereby, purchase and acquire from the
Originators, without recourse (subject to the Originators' obligations herein,
including any obligation to fund Additional Balances with respect to the Initial
Mortgage Loans), on the Closing Date, all of the Originators' respective right,
title and interest in and to (a) each Initial Mortgage Loan owned by an
Originator, including its Principal Balance as of the Initial Cut-Off Date and
all principal and interest collected in respect of such Initial Mortgage Loan on
or after the Initial Cut-Off Date (excluding any payments of principal and
interest collected in respect to such Initial Mortgage Loan prior to the Initial
Cut-Off Date); (b) each related Mortgaged Property that is acquired by
foreclosure or deed in lieu of foreclosure; (c) all rights under any Mortgage
Insurance Policies covering each related Mortgaged Property; (d) all proceeds
with respect to the foregoing; and (e) the Mortgage File and other documents
relating to the foregoing; provided, however, that neither Purchaser nor any of
its Assignees (including the Trust and the Indenture Trustee) shall be deemed to
assume any obligation under any Credit Line Agreement that provides for the
funding of future advances to the Mortgagor thereunder, it being understood that
any such obligation shall remain with the Originators and that neither Purchaser
nor any of its Assignees (including the Trust and the Indenture Trustee) shall
be required or permitted to fund any such future advances. As full consideration
for the Originators' and the warehouse trust's sale, transfer, assignment and
conveyance to Purchaser of all of their respective right, title and interest in
and to the Initial Mortgage Loans and other properties specified above and in
the Assignment from the warehouse trust to Purchaser, on the Closing Date,
Purchaser shall (x) pay to or upon the order of the Originators and the
warehouse trust that amount in immediately available funds equal to the
Originators' and the warehouse trust's pro rata share of the proceeds of the
sale of the Notes, net of the initial deposits to the Pre-Funding Account and
the Capitalized Interest Account, any underwriting discounts and other
transaction costs, and (y) direct the issuance of the Certificates to or upon
the order of the Originators, all in such relative proportions as the
Originators shall jointly determine on or before the Closing Date.
(b) The Originators hereby agree to sell, assign, transfer,
convey and set over to Purchaser, and the Purchaser, subject to the satisfaction
of the conditions set forth in Section 2.6 of the Sale and Servicing Agreement,
hereby agrees to purchase and acquire from the Originators, without recourse
(subject to the Originators' obligations herein, including any obligation to
fund Additional Balances with respect to the Subsequent Mortgage Loans), on each
Subsequent Transfer Date, all of the Originators' respective right, title and
interest in and to (a) each Subsequent Mortgage Loan, including its Principal
Balance as of the Subsequent Cut-Off Date and all principal and interest
collected in respect of such Subsequent Mortgage Loan on or after the Subsequent
Cut-Off Date (excluding any payments of principal and interest collected in
respect to such Subsequent Mortgage Loans prior to the Subsequent Cut-Off Date);
(b) each related Mortgaged Property that is acquired by foreclosure or deed in
lieu of foreclosure; (c) all rights under any Mortgage Insurance Policies
covering each related Mortgaged Property; (d) all proceeds with respect to the
foregoing; and (e) the Mortgage File and other documents relating to the
foregoing; provided, however, that neither Purchaser nor any of its Assignees
(including the Trust and the Indenture Trustee) shall be deemed to assume any
obligation under any Credit Line Agreement that provides for the funding of
future advances to the Mortgagor thereunder, it being understood that any such
obligation shall remain with the Originators and that neither Purchaser nor any
of
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its Assignees (including the Trust and the Indenture Trustee) shall be required
or permitted to fund any such future advances. As full consideration for the
Originators' sale, transfer, assignment and conveyance to Purchaser of all of
their respective right, title and interest in and to the Subsequent Mortgage
Loans and other properties specified above, on each Subsequent Transfer Date,
Purchaser shall direct the Indenture Trustee to pay from funds on deposit in the
Pre-Funding Account to or upon the order of the Originators that amount in
immediately available funds equal to 94.8% of the aggregate Principal Balance of
the Subsequent Mortgage Loans as of the Subsequent Cut-Off Date, all in such
relative proportions as the Purchaser and the Originators shall jointly
determine on or before each Subsequent Transfer Date.
Section 2.02. Delivery of Documents; Purchase of Mortgage Loans. Prior
to the purchase of the Initial Mortgage Loans or any Subsequent Mortgage Loans,
as the case may be:
(a) Each Originator shall have delivered to Purchaser or any
agent appointed by Purchaser the Mortgage File for each of the Mortgage Loans
sold to Purchaser by such Originator.
(b) Purchaser shall have received a copy of the Schedule of
Mortgage Loans.
(c) On the Closing Date, Purchaser shall have received copies
of the resolutions of the Board of Directors of each Originator, certified by
its Secretary or Assistant Secretary, approving this Agreement.
(d) On the Closing Date, Purchaser shall have received copies
of the articles of incorporation, articles of association or charter of each
Originator.
(e) On the Closing Date, Purchaser shall have received from
each Originator (i) a certificate of the Secretary or Assistant Secretary of
such Originator certifying the names and signatures of the officers authorized
on its behalf to execute this Agreement and any other documents to be delivered
by it hereunder and (ii) a copy of such Originator's by-laws.
(f) On the Closing Date, Purchaser shall have received an
opinion of counsel to each Originator as to the due authorization, execution and
delivery by such Originator of this Agreement and as to the validity and
enforceability of the transfers contemplated hereunder and addressing such other
matters as Purchaser may reasonably request.
(g) Purchaser shall be permitted to perform its standard loan
review of each Mortgage Loan to be purchased.
(h) On the Closing Date, UCC-1 financing statements duly
executed by each Originator as debtor shall have been filed naming Purchaser as
secured party and, if Purchaser so requests, the Indenture Trustee on behalf of
the Trust as assignee.
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Section 2.03. Survival of Representations. The terms and conditions of
the purchase and sale of each Mortgage Loan shall be as set forth in this
Agreement and in the Assignment. Each Originator will be deemed on the Closing
Date and each Subsequent Transfer Date to have made to Purchaser the
representations and warranties set forth in Article IV hereof, including,
without limitation, the representations and warranties in regard to the Mortgage
Loans, whether conveyed by such Originator to Purchaser hereunder or conveyed by
the warehouse trust to Purchaser under the Assignment, and such representations
and warranties of such Originator shall be true and correct on and as of the
Closing Date and each Subsequent Transfer Date . In addition, such Originator
will be deemed to have reaffirmed the representations and warranties contained
in Article IV hereof including, without limitation, the representations and
warranties in regard to all of the Initial Mortgage Loans, whether conveyed by
such Origination to Purchaser hereunder or conveyed by the warehouse trust to
Purchaser under the Assignment, on the date of sale of such Mortgage Loans by
Purchaser pursuant to Section 2.1(a) of the Sale and Servicing Agreement.
Section 2.04. Proceeds of Mortgage Loans. The sale, assignment,
transfer and conveyance hereby of all of the Originators' respective right,
title and interest in and to each Mortgage Loan owned by an Originator shall
include all proceeds, products and profits derived therefrom, including all
payments of principal of and interest on such Mortgage Loan and other amounts
due or payable or to become due or payable in respect thereof and proceeds
thereof, including all monies, goods and other tangible or intangible property
received upon the liquidation or sale thereof, except any payments in respect of
principal or interest collected prior to the Cut-Off Date.
Section 2.05. Repurchased Mortgage Loans. If any Mortgage Loan sold by
an Originator hereunder or by the warehouse trust under the Assignment is
re-transferred to Purchaser pursuant to Section 2.2(b) of the Sale and Servicing
Agreement, the Originator shall, at Purchaser's option, either (a) repurchase
such Mortgage Loan at the Loan Reacquisition Price therefor or (b) substitute in
lieu thereof a Qualified Replacement Mortgage Loan (provided that the Originator
has any such loans available for sale at the time) and deliver to or upon the
order of Purchaser the related Substitution Amount, all in accordance with and
subject to the applicable terms and conditions of the Sale and Servicing
Agreement.
ARTICLE III
Protective Security Interest
It is the express intent of the parties hereto that all conveyances of
Mortgage Loans (including the related Mortgage Files and the other rights and
properties described in Section 2.01 hereof) by the Originators to Purchaser as
contemplated by this Agreement be construed as a sale of such Mortgage Loans by
the Originators to Purchaser. It is, further, not the intent of the parties that
such conveyance be deemed a pledge of such Mortgage Loans by the Originators to
Purchaser or any of its Assignees (including the Trust and the Indenture
Trustee) to secure a debt or other obligation of the Originators. 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 related Mortgage Files
and the other rights and properties described in Section 2.01 hereof) are held
to be property of any or all of the Originators, 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 Uniform Commercial
Code;
(ii) the conveyance provided for herein shall be deemed to be a
grant by the Originators to Purchaser of a first priority security interest in
all of the Originators' right, title and interest in and to the Mortgage Loans
conveyed hereunder (including the related Mortgage Files and the other rights
and properties described in Section 2.01 hereof) and all amounts payable to the
holder of such 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 the
Accounts (excluding any investment earnings on the Note Account, the Principal
and Interest Account and the Capitalized Interest Account), whether in the form
of cash, instruments, securities or other property;
(iii) the possession by Purchaser or any of its Assignees or their
respective 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 California Uniform Commercial Code;
(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 Purchaser
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 (ii) above shall be deemed to include any and all
obligations of Purchaser or any of its Assignees (including the Trust and the
Indenture Trustee) to pay the principal of and interest on the Notes to the
Noteholders and to pay the fees, expenses and other amounts required to be paid
to the Master Servicer, the Indenture Trustee, the Owner Trustee and the
Certificateholders, all in accordance with and otherwise subject to the
Operative Documents (including the Indenture).
Any assignment or other transfer of the interest of Purchaser under any
provision hereof shall also be deemed to be an assignment of any security
interest created hereby. Each of the Originators and Purchaser 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 Sale and Servicing Agreement
and the Indenture. Each of the Originators also covenants not to pledge, assign
or grant any security interest to any third party in any Mortgage Loan conveyed
to Purchaser hereunder.
Upon Purchaser's request, each Originator shall perform (or cause to be
performed) such further acts and execute, acknowledge and deliver (or cause to
be executed, acknowledged and delivered) to Purchaser such further documents as
Purchaser shall deem necessary or advisable in order to evidence,
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establish, maintain, protect, enforce or defend its rights in and to the
Mortgage Loans and other rights and properties transferred hereunder or
otherwise to carry out the intent and accomplish the purposes of this Agreement
(including UCC-1 financing statements naming such Originator as debtor and
Purchaser as secured party and any continuation statements relating thereto).
ARTICLE IV
Representations and Warranties
Section 4.01. Representations and Warranties of Originators. Each of
the Originators represents, warrants and covenants to Purchaser as of the
Closing Date and each Subsequent Transfer Date that:
(a) Such Originator is duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
authorized and qualified to transact any and all business contemplated by this
Agreement to be conducted by such Originator in any state in which a Mortgaged
Property is located to the extent necessary to ensure the enforceability of each
Mortgage Loan in accordance with the terms of this Agreement.
(b) Such Originator has the full corporate power and authority
to originate the Mortgage Loans conveyed by it hereunder and to execute, deliver
and perform, and to enter into and consummate the transactions contemplated by,
this Agreement; the execution, delivery and performance of this Agreement by
such Originator has been duly authorized by all necessary corporate action on
the part of such Originator; and this Agreement, assuming the due authorization,
execution and delivery thereof by Purchaser, constitutes a legal, valid and
binding obligation of such Originator, enforceable against such Originator in
accordance with its respective terms, except to the extent that (i) the
enforceability thereof may be limited by federal or state bankruptcy,
insolvency, moratorium, receivership and other similar laws relating to
creditors' rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(c) The execution and delivery of this Agreement by such
Originator, the consummation by such Originator of the transactions herein
contemplated, and the fulfillment by such Originator of or compliance by such
Originator with the terms hereof will not (i) result in a breach of any term or
provision of the charter or by-laws of such Originator or (ii) conflict with,
result in a breach, violation or acceleration of, or result in a default under,
the terms of any other material agreement or instrument to which such Originator
is a party or by which it may be bound, or any statute, order or regulation
applicable to such Originator of any court, regulatory body, administrative
agency or governmental body having jurisdiction over such Originator, which
breach, violation, default or non-compliance would have a material adverse
effect on the business, operations, financial condition, properties or assets of
such Originator taken as a whole or the ability of such Originator to perform
its obligations under this Agreement; and such Originator is not a party to,
bound by, or in breach or violation of any material indenture or other material
agreement or instrument, or subject to or in violation of any statute, order or
regulation of any court, regulatory body, administrative agency or governmental
body having jurisdiction over it, which materially and adversely
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affects or, to such Originator's knowledge, would in the future reasonably be
expected to materially and adversely affect, the ability of such Originator to
perform its obligations under this Agreement or the business, operations,
financial condition, properties or assets of such Originator taken as a whole.
(d) Such Originator is, and currently intends to remain, in
good standing and qualified to do business in each jurisdiction where failure to
be so qualified or licensed would have a material adverse effect on (i) the
business, operations, financial condition, properties or assets of such
Originator taken as a whole or (ii) the enforceability of any Mortgage Loan in
accordance with the terms of this Agreement.
(e) There is no litigation pending or, to such Originator's
actual knowledge, overtly threatened against such Originator that would
materially and adversely affect the execution, delivery or enforceability of
this Agreement or the ability of such Originator to perform any of its other
obligations hereunder in accordance with the terms hereof.
(f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by such Originator of, or compliance by such Originator with, this
Agreement or the consummation of the transactions contemplated hereby, or if any
such consent, approval, authorization or order is required, such Originator has
obtained the same.
(g) Such Originator has caused to be performed any and all
acts required to preserve the rights and remedies of Purchaser in any Mortgage
Insurance Policies of such Originator applicable to the Mortgage Loans conveyed
by such Originator hereunder.
Section 4.02. Representations and Warranties Regarding Mortgage Loans.
Each Originator represents and warrants to Purchaser as of the Closing Date, the
Transfer Date and the Subsequent Transfer Date, as the case may be, that, with
respect to each Mortgage Loan originated by such Originator and conveyed by such
Originator or the warehouse trust, as the case may be, on such date, each
representation and warranty set forth in Exhibit A hereto is true and correct.
Section 4.03. Representations and Warranties of Purchaser. Purchaser
hereby makes the following representations and warranties, each of which
representations and warranties (i) is material and being relied upon by the
Originators and (ii) is true in all respects as of the Closing Date, the
Transfer Date and the Subsequent Transfer Date:
(a) Purchaser has been duly organized and is validly existing
as a corporation under the laws of the State of Nevada.
(b) Purchaser has the requisite power and authority and legal
right to execute and deliver, engage in the transactions contemplated by, and
perform and observe the terms and conditions of, this Agreement to be performed
by it.
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(c) This Agreement has been duly authorized and executed by
Purchaser, is valid, binding and enforceable against Purchaser in accordance
with its terms, and the execution, delivery and performance by Purchaser of this
Agreement does not conflict with any material term or provision of any other
agreement to which Purchaser is a party or any term or provision of the
Certificate of Incorporation or the By-laws of Purchaser, or any law, rule,
regulation, order, judgment, writ, injunction or decree applicable to Purchaser
of any court, regulatory body, administrative agency or governmental body having
jurisdiction over Purchaser.
(d) No consent, approval, authorization or order of,
registration or filing with, or notice to any governmental authority or court is
required under applicable law in connection with the execution and delivery by
Purchaser of this Agreement.
(e) To the best knowledge of Purchaser, there is no action,
proceeding or investigation pending or threatened against Purchaser before any
court, administrative agency or other tribunal (i) asserting the invalidity of
this Agreement, (ii) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (iii) which is likely to
materially and adversely affect the performance by Purchaser of its obligations
under, or the validity or enforceability of, this Agreement.
(f) The purchase of Mortgage Loans hereunder shall constitute
a representation by Purchaser to each Originator that Purchaser understands, and
that Purchaser has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of, its investment
in the relevant Mortgage Loans.
Section 4.04. Remedies for Breach of Representations and Warranties;
Repurchase Obligation. It is understood and agreed that the representations and
warranties set forth in Sections 4.01 and 4.02 shall survive each sale of
Mortgage Loans by the Originators or the warehouse trust to Purchaser and shall
inure to the benefit of Purchaser and its Assignees notwithstanding any
restrictive or qualified endorsement on any related Credit Line Agreement or
Assignment of Mortgage or the examination or failure to examine any Mortgage
File. With respect to the representations and warranties contained in Sections
4.01 and 4.02 which are made to the best of an Originator's knowledge or to the
actual knowledge of an Originator, if it is discovered by such Originator or
Purchaser that the substance of such representation and warranty is inaccurate
and such inaccuracy materially and adversely affects the value of the related
Mortgage Loan or Purchaser's or any Assignee's interest therein, then
notwithstanding such Originator's lack of knowledge with respect to the
inaccuracy at the time the representation or warranty was made, such Originator
shall repurchase the related Mortgage Loan in accordance with this Section 4.04
as if the applicable representation or warranty was breached, subject to the
terms and conditions of the Sale and Servicing Agreement. Upon discovery by an
Originator or Purchaser of a breach of any of the foregoing representations and
warranties which materially and adversely affects the value of any Mortgage Loan
or Purchaser's or any Assignee's interest therein, the party discovering such
breach shall give prompt written notice to the others.
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Within 30 days of the earlier of either discovery by or notice to an
Originator of any breach of a representation or warranty set forth in Sections
4.01 and 4.02 by such Originator which materially and adversely affects the
value of any Mortgage Loan or Purchaser's or any Assignee's interest therein,
such Originator shall use its best efforts promptly to cure or cause to be cured
such breach in all material respects and, if such breach cannot be cured or is
not cured or is not being diligently pursued as evidenced by a notice acceptable
to Purchaser, as evidenced by Purchaser's agreement thereto, at the end of such
30-day period, Originator shall, at Purchaser's option, either (a) repurchase
such Mortgage Loan at the Loan Reacquisition Price therefor or (b) substitute in
lieu of such Mortgage Loan a Qualified Replacement Mortgage Loan (provided that
the Originator has any such loans available for sale at the time) and deliver to
or upon the order of Purchaser the related Substitution Amount, if any, all in
accordance with and subject to the applicable terms and conditions of the Sale
and Servicing Agreement.
At the time of repurchase or substitution, Purchaser and the applicable
Originator shall arrange for the assignment to the applicable Originator of the
Mortgage Loan to be repurchased or replaced and the delivery to the applicable
Originator of the related Mortgage File.
Each Originator shall indemnify and hold harmless Purchaser and its
Assignees from and against any losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments, and other
costs and expenses resulting from any claim, demand, defense or assertion based
on or grounded upon, or resulting from, a breach by such Originator of the
representations and warranties contained in this Article IV (notwithstanding any
limitation in such representation and warranty as to such Originator's
knowledge). It is understood and agreed that the obligations of each Originator
set forth in this Section 4.04 either to cure any breach of the representations
and warranties contained in this Article IV which materially and adversely
affects the value of any Mortgage Loan or Purchaser's or any Assignee's
(including the Trust's and the Indenture Trustee's) interest therein, or to
repurchase the affected Mortgage Loan or substitute a Qualified Replacement
Mortgage Loan in lieu thereof and to indemnify and hold harmless Purchaser as
provided in this Section 4.04 constitute the sole remedies of Purchaser or any
Assignee of Purchaser (including the Trust and the Indenture Trustee) respecting
a breach by such Originator of the foregoing representations and warranties.
Any cause of action against an Originator relating to or arising out of
the breach by such Originator of any representations and warranties made in
Sections 4.01 and 4.02 shall accrue as to any Mortgage Loan upon (i) discovery
of such breach by the Originator or notice thereof by Purchaser to the
Originator, (ii) failure by the Originator to cure such breach or to repurchase
such Mortgage Loan or substitute a Qualified Replacement Mortgage Loan in lieu
thereof as specified above, and (iii) demand upon the Originator by Purchaser
for compliance with the relevant provisions of this Agreement.
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ARTICLE V
Covenants of Originators
So long as this Agreement remains in effect or any Originator has
obligations hereunder, each Originator hereby covenants and agrees with
Purchaser as follows:
Section 5.01. Affirmative Covenants.
(a) Such Originator shall do all things necessary to remain
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and to maintain all requisite authority to conduct
its business in each jurisdiction in which its business is conducted except
where failure to maintain such authority would not have a material adverse
effect on the ability of such Originator to conduct its business or to perform
its obligations under this Agreement.
(b) At all times during this Agreement, such Originator shall
possess sufficient net capital and liquid assets (or ability to access the same)
to satisfy its obligations as they become due in the normal course of business.
(c) Such Originator shall permit Purchaser, its Assignees and
their respective accountants, attorneys and other agents access to all of the
books and records relating to the Mortgage Loans purchased and retained by
Purchaser for inspection during normal business hours at all places where such
Originator conducts business.
(d) Such Originator shall be obligated to convey all
Additional Balances to the Trust (to the extent such Additional Balances are
related to the Mortgage Loans originated by such Originator).
(e) Such Originator will deliver or cause to be delivered to
the Indenture Trustee the items listed in the definition of "Mortgage Files"
with respect to each Mortgage Loan originated by such Originator and conveyed to
Purchaser by such Originator or by the warehouse trust.
Section 5.02. Negative Covenants.
(a) Such Originator shall not assign or attempt to assign this
Agreement or any rights hereunder, without first obtaining the specific written
consent of Purchaser.
(b) Such Originator shall not amend its articles of
incorporation, articles of association or charter or its by-laws if such
amendment shall have or is likely to have an adverse effect upon Purchaser or
its interests under this Agreement, without the prior written consent of
Purchaser.
(c) Such Originator shall not (i) dissolve or terminate its
existence or (ii) transfer any assets to any affiliate except in the ordinary
course of its business or as otherwise expressly permitted or contemplated
hereby.
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(d) Such Originator will not commit any act in violation of
applicable laws or regulations promulgated pursuant thereto that relate to the
Mortgage Loans or that materially and adversely affect the operations or
financial conditions of such Originator.
ARTICLE VI
Sale of Mortgage Loans by Purchaser
It is the intent of the parties hereto that (i) immediately after the
sale of Mortgage Loans by the Originators to Purchaser as provided herein or the
conveyance of Mortgage Loans to Purchaser by the warehouse trust, pursuant to
the Sale and Servicing Agreement, Purchaser will sell, assign, transfer, convey
and set over to the Trust all of Purchaser's right, title and interest in and to
all of the Mortgage Loans (including the other rights and properties conveyed to
it hereunder) and (ii) immediately after the sale of all of the Mortgage Loans
by Purchaser to the Trust pursuant to the Indenture, the Trust will Grant to the
Indenture Trustee all of the Trust's right, title and interest in and to the
Mortgage Loans.
With respect to each such sale or other transfer, each Originator
hereby agrees:
(a) to cooperate fully with Purchaser, Purchaser's Assignees,
the Trust and the Indenture Trustee with respect to all reasonable requests and
due diligence procedures, including participating in meetings with rating
agencies, insurers and such other parties as Purchaser shall designate and
participating in meetings with Purchaser's Assignees and the Trust and providing
information reasonably requested by Purchaser's Assignees and the Trust;
(b) to execute all other necessary documents to effect the
transactions contemplated hereby;
(c) to affirm the representations and warranties set forth
herein regarding such Originator and any Mortgage Loans originated by such
Originator as of the date of the transfer thereof to the Trust;
(d) to deliver to Purchaser for inclusion in any prospectus or
other offering material such publicly available information regarding (i) such
Originator, (ii) its financial condition, (iii) the mortgage loan delinquency,
foreclosure and loss experience of its portfolio as is customarily set forth in
a prospectus supplement with respect to a comparable mortgage pool, (iv) the
underwriting guidelines for mortgage loans, (v) the servicer, (vi) the servicing
and collection practices regarding mortgage loans, and (vii) any additional
information reasonably requested by Purchaser, or as is otherwise reasonably
requested by Purchaser and which such Originator is capable of providing without
unreasonable effort or expense, and to indemnify Purchaser and its Assignees for
material misstatements or omissions contained in such information;
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(e) to deliver to Purchaser, and to any Person designated by
Purchaser, such legal documents and in-house opinions of counsel as are
customarily delivered by originators and reasonably determined by Purchaser or
its Assignees to be necessary in connection with the transactions contemplated
by the Sale and Servicing Agreement, it being understood that the cost of any
opinions of outside special counsel that may be required shall be the
responsibility of such Originator; and
(f) to cooperate fully with Purchaser and its Assignees with
respect to the preparation of Mortgage Loan documents and other documents and
with respect to servicing requirements reasonably requested by the rating
agencies and insurers.
ARTICLE VII
Additional Remedies
Upon the occurrence of a Rapid Amortization Event under the Indenture
due to an act or omission of an Originator, Purchaser and any of its Assignees
shall have, in addition to all other rights and remedies under this Agreement or
otherwise, all other rights and remedies provided under the UCC of each
applicable jurisdiction and other applicable laws, which rights shall be
cumulative. Without limiting the foregoing, the occurrence of any such Rapid
Amortization Event shall not deny to Purchaser or its Assignees any remedy to
which Purchaser or its Assignees may be otherwise appropriately entitled,
whether by statute or applicable law, or in equity.
ARTICLE VIII
Term
This Agreement shall terminate on the date of termination of the Trust
as set forth in Article IX of the Trust Agreement.
ARTICLE IX
Exclusive Benefit of Parties; Assignment
This Agreement is for the exclusive benefit of the parties hereto and
their respective successors and assigns and shall not be deemed to give any
legal or equitable right to any other person except the Trust, the Indenture
Trustee, the Noteholders and the Insurer. Neither this Agreement nor any rights
hereunder may be assigned by any party hereto without the prior written consent
of the others and the Insurer except if assigned by the Purchaser to the Trust
or the Indenture Trustee.
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ARTICLE X
Amendment; Waivers
This Agreement may be amended from time to time only by written
agreement of the Originators and Purchaser with the prior written consent of the
Insurer, which consent shall not be unreasonably withheld. Any forbearance,
failure, or delay by a party in exercising any right, power, or remedy hereunder
shall not be deemed to be a waiver thereof, and any single or partial exercise
by a party of any right, power or remedy hereunder shall not preclude the
further exercise thereof. Every right, power and remedy of a party shall
continue in full force and effect until specifically waived by it in writing. No
right, power or remedy shall be exclusive, and each such right, power or remedy
shall be cumulative and in addition to any other right, power or remedy, whether
conferred hereby or hereafter available at law or in equity or by statute or
otherwise.
ARTICLE XI
Execution in Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Signatures may be exchanged by
facsimile, and each party hereto agrees to be bound by its own facsimile
signature and to accept the facsimile signatures of the other parties.
ARTICLE XII
Effect of Invalidity of Provisions
In case any one or more of the provisions contained in this Agreement
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall in no way be affected, prejudiced or disturbed thereby.
ARTICLE XIII
Governing Law
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
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ARTICLE XIV
Notices
Any notices, consents, directions, demands and other communications
given under this Agreement (unless otherwise specified herein) shall be: (a) in
writing and personally delivered or telecopied to the respective addresses or
facsimile numbers of the parties hereto, as follows: if to the Purchaser,
addressed to Advanta Conduit Receivables, Inc., 00000 Xxxxxx Xxxxxxxx Xxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000; if to ABC, addressed to Advanta Bank Corp., 00000 Xxxxx
Xxxxxxxx Xxxx, Xxxxxx, Xxxx 00000; if to AFC, addressed to Advanta Finance
Corp., 00000 Xxxxxx Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000; if to ANB,
addressed to Advanta National Bank, Xxx Xxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000; or, if to any party, addressed to such other address or facsimile number
as such party shall give notice to the other parties pursuant to this Article
XIV. Notices, consents, and other communications may also be effected by first
class mail, postage prepaid sent to the foregoing addresses. Any notice,
consent, direction, demand or other communication given under this Agreement
shall be effective upon receipt by the intended recipient.
ARTICLE XV
Entire Agreement
This Agreement, including the Exhibits and Schedules hereto, contains
the entire agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements between them,
whether oral or written, of any nature whatsoever with respect to the subject
matter hereof.
ARTICLE XVI
Indemnities
Without limiting any other rights which Purchaser or each Originator
may have hereunder or under applicable law, and in addition to any other
indemnity provided hereunder, each Originator hereby agrees to indemnify
Purchaser, its Assignees and their respective officers, directors, agents and
employees (each, an "Indemnified Party") from and against any and all Losses
incurred by any of them relating to or resulting from:
(a) Any representation or warranty made by such Originator (or
any officers, employees or agents of such Originator) under or in connection
with this Agreement, any periodic report required to be furnished hereunder or
any other information or document delivered by such Originator pursuant hereto,
which shall have been false or incorrect in any material respect when made or
deemed made;
(b) The failure by such Originator to (i) comply with any
applicable law, rule or regulation with respect to any purchase and sale
hereunder or (ii) perform or observe any material obligation or covenant
hereunder; or
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(c) The failure by such Originator (if so requested by
Purchaser) to execute and properly file, or any delay in executing and properly
filing, financing statements or other similar instruments or documents under the
UCC of any applicable jurisdiction or other applicable laws with respect to the
Mortgage Loans.
Promptly after receipt by an Indemnified Party under this Article XVI
of notice of the commencement of any action or other proceeding, such
Indemnified Party will, if a claim in respect thereof is to be made against the
indemnifying party under this Article XVI, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability that it may have to
any Indemnified Party otherwise than under this Article XVI. In case any such
action is brought against any Indemnified Party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the Indemnified Party promptly after receiving the aforesaid notice
from such Indemnified Party, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party; provided, however, that if the
defendants in any such action include both the Indemnified Party and the
indemnifying party and the Indemnified Party shall have reasonably concluded
that there may be legal defenses available to it and/or other Indemnified
Parties that are different from or additional to those available to the
indemnifying party, the Indemnified Party shall have the right to elect separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such action on behalf of such Indemnified Party. Upon receipt of
notice from the indemnifying party to such Indemnified Party of its election so
to assume the defense of such action and approval by the Indemnified Party of
counsel, the indemnifying party will not be liable for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, unless (i) the Indemnified Party shall have employed separate
counsel in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than one
separate counsel representing the Indemnified Parties under this Article XVI who
are parties to such action), (ii) the indemnifying party shall have employed
counsel which is not satisfactory to the Indemnified Party to represent the
Indemnified Party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the Indemnified Party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall only be in
respect of the counsel referred to in such clause (i) or (iii).
ARTICLE XVII
RESPA Obligations
Each Originator agrees to discharge, on Purchaser's behalf, all
obligations, including all disclosure obligations, which Purchaser may have
under the Real Estate Settlement Procedures Act of 1974, as amended, in
connection with Purchaser's purchase of all of the Mortgage Loans. Purchaser
agrees to provide the Originator with such information as is reasonably
necessary for the Originator to discharge such obligations and hereby appoints
the Originator as its agent in its name for the purposes of, and only for the
purposes of, performing such obligations. Each Originator hereby agrees to
indemnify Purchaser, its
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Assignees and their respective officers, directors, agents and employees from
any Losses suffered by any such party in connection with the Originator's
obligations under this provision.
ARTICLE XVIII
Survival
All indemnities and undertakings of Originator and Purchaser hereunder
shall survive the termination of this Agreement.
ARTICLE XIX
Consent to Service
Each party irrevocably consents to the service of process by registered
or certified mail, postage prepaid, to it at its address given pursuant to
Article XIV hereof.
ARTICLE XX
Submission to Jurisdiction; Waiver of Trial by Jury
With respect to any claim arising out of this Agreement each party
irrevocably submits to the exclusive jurisdiction of the courts of the State of
New York and the United States District Court located in the Borough of
Manhattan, City of New York, and each party irrevocably waives any objection
which it may have at any time to the laying of venue of any suit, action or
proceeding arising out of or relating hereto brought in any such court,
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum and further
irrevocably waives the right to object, with respect to such claim, suit, action
or proceeding brought in any such court, that such court does not have
jurisdiction over such party, provided that service of process is made as set
forth in Article XIX hereof or by any other lawful means. To the extent
permitted by applicable law, Purchaser and the Originators each irrevocably
waive all right of trial by jury in any action, proceeding or counterclaim
arising out of or in connection with this Agreement or any matter arising
hereunder.
ARTICLE XXI
Construction
The headings in this Agreement are for convenience only and are not
intended to influence its construction. References to Articles, Sections,
Schedules and Exhibits in this Agreement are to the Articles, Sections of and
Schedules and Exhibits to this Agreement. The Schedules and Exhibits are hereby
incorporated into and form a part of this Agreement. As used in this Agreement,
any form of the word "include" shall be deemed to be followed by the words
"without limitation," the words "and" and "or" are used in the conjunctive or
disjunctive as the sense and circumstances may require, the singular includes
the plural and vice-versa, and terms such as "herein," "hereof," "hereby" and
"hereunder" refer to this Agreement as a whole and not to any particular
provision of this Agreement, unless the context clearly indicates otherwise.
Unless otherwise stated in this Agreement, in the computation of a period of
time from
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a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
ARTICLE XXII
Further Assurances
Each party hereto agrees to execute, acknowledge and deliver to the
other parties and to Purchaser's Assignees such reasonable and appropriate
additional documents, instruments or agreements as may be necessary or
appropriate to effectuate the purposes of this Agreement.
ARTICLE XXIII
Third Party Beneficiary
The Insurer shall be deemed to be an express third-party beneficiary of
this Agreement and shall be entitled to enforce the terms hereof as if it were a
party hereto.
ARTICLE XXIV
No Petition
The Originators, by entering into this Agreement, hereby covenant and
agree that they will not at any time institute against the Sponsor or the Trust,
or join in any institution against the Sponsor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized, all as of
the date first written above.
ADVANTA CONDUIT RECEIVABLES, INC.,
as Purchaser
By: /s/ Xxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA BANK CORP.,
as an Originator
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: President
ADVANTA NATIONAL BANK,
as an Originator
By: /s/ Xxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA FINANCE CORP.,
as an Originator
By: /s/ Xxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
22
SCHEDULE I
SCHEDULE OF MORTGAGE LOANS
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EXHIBIT A
MORTGAGE LOAN
REPRESENTATIONS AND WARRANTIES
Each Originator makes the following representations and warranties to
Purchaser solely with respect to the Mortgage Loans originated by such
Originator and sold by such Originator or the warehouse trust to Purchaser. Such
representations and warranties to speak (unless otherwise indicated) as of the
Closing Date, in the case of the Initial Mortgage Loans, the Subsequent Transfer
Date, in the case of the Subsequent Mortgage Loans, and the applicable Transfer
Date, in the case of any Qualified Replacement Mortgage Loans, but shall survive
the sale, transfer, and assignment of such Mortgage Loans to the Trust pursuant
to the Sale and Servicing Agreement and the pledge of such Mortgage Loans to the
Indenture Trustee pursuant to the Indenture:
(i) All of the original or certified documentation set forth in
the definition of Mortgage File and in Section 2.1(g)(i) of the Sale and
Servicing Agreement (including all material documents related thereto) with
respect to each Mortgage Loan has been or will be delivered to the Indenture
Trustee on the Closing Date, in the case of the Initial Mortgage Loans, the
Subsequent Transfer Date, in the case of the Subsequent Mortgage Loans, and the
applicable Transfer Date, in the case of any Qualified Replacement Mortgage
Loans. All such documentation is true and accurate in all material respects.
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, purchase or sell mortgage loans comparable to the Mortgage
Loans.
(ii) Each Mortgage Loan is being serviced by the Master Servicer
or a Master Servicer Affiliate.
(iii) During the period from origination to the Cut-Off Date or
Subsequent Cut-Off Date, as applicable, each Mortgage Loan has been serviced in
accordance with applicable law.
(iv) All action has been taken to validly transfer and assign to
the Purchaser all right, title and interest of such Originator in and to such
Mortgage Loans and all other related property described in Section 2.01
(including the related Additional Balances); and, in accordance with Article
III, all action has been taken to grant a security interest (as defined in the
UCC as in effect in New York) in such property to Purchaser, which, if the
Indenture Trustee maintains possession of the Mortgage File for each such
Mortgage Loan, shall constitute a first priority perfected security interest in
such property (to the extent that perfection can be achieved by possession by or
on behalf of a secured party), subject to the effect of Section 9-306 of the UCC
with respect to collections on such Mortgage Loans that are deposited in the
Accounts.
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(v) The information set forth in the Schedule of Mortgage Loans
(as amended for Qualified Replacement Mortgage Loans and Subsequent Mortgage
Loans) for each such Mortgage Loan is true and correct in all material respects.
(vi) The Mortgages and the Credit Line Agreements conveyed to
Purchaser by the Originators pursuant to Section 2.01 hereof are not at the time
of conveyance assigned or pledged by such Originator, and, at the time of
conveyance thereof to Purchaser, such Originator is the owner and holder of such
Mortgages and such Credit Line Agreements free and clear of any and all liens,
claims, encumbrances, participation interests, equities, pledges, charges or
security interests of any nature, and has full right and authority, under all
governmental and regulatory bodies having jurisdiction over the holder of the
related Mortgage Loans, to sell, assign or transfer the same.
(vii) There is no valid offset, defense or counterclaim of any
obligor under any Credit Line Agreement or Mortgage relating to each such
Mortgage Loan. Neither the operation of any of the terms of any such Credit Line
Agreement or any such Mortgage nor the exercise of any right thereunder will
render either such Credit Line Agreement or such Mortgage unenforceable, in
whole or in part, nor subject to any right of rescission, set-off, claim,
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.
(viii) With respect to each Mortgage Loan, on each date that the
Coupon Rates have been adjusted, such adjustment was made in compliance with the
related Mortgage and Credit Line Agreement and applicable law. With respect to
the Mortgage Loans, the Coupon Rate over the term of each Mortgage Loan may not
exceed the related maximum Coupon Rate, if any.
(ix) As of the Cut-Off Date, each Mortgaged Property is improved
by a single (one-to-four) family residential dwelling, which may include
manufactured homes, condominiums and townhouses.
(x) As of the Initial Cut-Off Date with respect to the Initial
Mortgage Loans, as of the Subsequent Cut-Off Date with respect to Subsequent
Mortgage Loans and as of the applicable Transfer Date with respect to any
Qualified Replacement Mortgage Loan, each Mortgage is a valid and subsisting
first or junior lien of record on the Mortgaged Property (subject in the case of
any Junior Mortgage Loan only to one or more Senior Liens on such Mortgaged
Property) and subject in all cases to the exceptions to title set forth in the
title insurance policy or title search with respect to the related Mortgage
Loan, which exceptions are generally acceptable to banking institutions in
connection with their regular mortgage lending activities, and except for liens
for (i) real estate taxes and special assessments not yet delinquent, (ii)
income taxes not yet due, (iii) any covenants, conditions and restrictions,
rights of way, easements, and other matters of public record 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.
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(xi) To the best of such Originator's knowledge, each Mortgage
Loan at the time it was made had no delinquent tax or assessment lien or
mechanic's lien on the related Mortgaged Property, and each such Mortgaged
Property is free of substantial damage and is in good repair.
(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 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 that is a First Mortgage
Loan, and, to the best of such Originator's knowledge, with respect to each
Mortgage Loan that is a Junior Mortgage Loan, (a) 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, was issued on the
date of origination of such Mortgage Loan, and as of the Closing Date with
respect to the Initial Mortgage Loans, as of the Subsequent Transfer Date with
respect to the Subsequent Mortgage Loans and as of each applicable Transfer Date
with respect to any Qualified Replacement Mortgage Loan, each such policy is
valid and remains in full force and effect, or (b) a title search or guaranty of
title customary in the relevant jurisdiction was obtained with respect to any
Mortgage Loan as to which no title insurance policy or binder was issued.
(xiv) Each Credit Line Agreement and each Mortgage relating to a
Mortgage Loan is an enforceable obligation of the related Mortgagor and is
enforceable in accordance with its terms, except as the enforceability thereof
may be limited by 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
equity or at law).
(xv) To the best of such Originator's knowledge, all parties to
each Credit Line Agreement and the related Mortgage had legal capacity to
execute such Credit Line Agreement and related Mortgage and each such Credit
Line Agreement and related Mortgage have been duly and properly executed by such
parties.
(xvi) The terms of each Credit Line Agreement and each related
Mortgage have not been impaired, cancelled, subordinated, rescinded, altered or
modified in any material respect (except as set forth in the Mortgage File or on
the Schedule of Mortgage Loans), and the related Mortgaged Property has not been
released from the lien of the related Mortgage, in whole or in part and no
instrument has been executed that would effect such release, cancellation,
subordination or rescission, except by a written instrument which (if such
instrument is secured by real property) has been recorded, if necessary, to
protect the interest of the Noteholders and which has been delivered to the
Indenture Trustee.
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(xvii) Except as otherwise required by law or the terms of the
Credit Line Agreement, the related Credit Line Agreement is not and has not been
secured by any collateral, pledged account or other security except the lien of
the corresponding Mortgage.
(xviii) Each Mortgaged Property is located in the state identified in
the Schedule of Mortgage Loans and consists of one or more parcels of real
property with a residential dwelling erected thereon.
(xix) To the best of such Originator's knowledge, 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 such
Mortgaged Property is undamaged by waste, fire, earthquake or earth movement,
flood, tornado or other casualty, so as to affect adversely the value of such
Mortgaged Property as security for the related Mortgage Loan or the use for
which the premises were intended.
(xx) With respect to each Mortgage Loan that is a Junior Mortgage
Loan, either (A) no consent for such Mortgage Loan was required by the holder of
any 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.
(xxi) 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 of such
Originator's knowledge, 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.
(xxii) To the best of such Originator's knowledge, there is no
default, breach, violation or event of acceleration existing under any Mortgage
or Credit Line Agreement 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 such Originator has not
waived any default, breach, violation or event of acceleration; provided,
however, that the foregoing shall not apply to the extent that the relevant
default, breach, violation or other event relates to one or more of the Mortgage
Loans being Delinquent.
(xxiii) No selection procedures reasonably believed by such
Originator to be adverse to the interests of the Noteholders or the Insurer was
utilized in selecting the Mortgage Loans.
(xxiv) No Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement which has been approved by the
applicable title insurer (to the extent required by such title insurer) and
which is part of the related Mortgage File delivered to the Indenture Trustee.
(xxv) At the time of origination of each Mortgage Loan that is not
a First Mortgage Loan, the indebtedness secured by the related senior lien was
not more than 30 days delinquent.
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(xxvi) To the best of such Originator's knowledge, all required
inspections, licenses and certificates with respect to the use and occupancy of
all occupied portions of all property securing the Mortgages have been made,
obtained or issued, as applicable.
(xxvii) With respect to each Mortgage Loan that is not a First
Mortgage Loan, the indebtedness secured by the related senior lien does not
provide for negative amortization.
(xxviii) With respect to each Mortgage Loan that is not a First
Mortgage Loan, the maturity date of the Mortgage Loan is prior to the maturity
date of the indebtedness secured by the related senior lien if such senior lien
provides for a balloon payment.
(xxix) With respect to each Mortgage Loan, (1) the improvements upon
each related Mortgaged Property are covered by a valid and existing hazard
insurance policy with a carrier generally acceptable to the Master Servicer that
provides for fire and extended coverage representing coverage not less than (a)
the Credit Limit of such Mortgage Loan or (b) the maximum insurable value of the
related Mortgaged Property, or (2) the Master Servicer has obtained and will
maintain a blanket policy insuring against fire, flood and hazards of extended
coverage with respect to all of the Mortgage Loans.
(xxx) With respect to any Mortgage Loan which is a First Mortgage
Loan, such 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 and the Indenture Trustee in any Mortgage Insurance Policies applicable
to any such Mortgage Loan delivered by such Originator hereunder, including 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 Trust and its assignees in care of the Master Servicer or the
Indenture Trustee.
(xxxi) To the best of such Originator's knowledge, each Mortgage
Loan was underwritten in all material respects in accordance with the credit
underwriting guidelines of such Originator as in effect on the date of
origination.
(xxxii) To the best of such Originator's knowledge, such Originator
has received no notice of default of any First Mortgage Loan secured by any
Mortgaged Property that also secures a Mortgage Loan which has not been cured by
a party other than such Originator.
(xxxiii) As of the respective Cut-Off Date, no Mortgagor had been
identified on the records of such Originator as being the subject of a current
bankruptcy proceeding.
(xxxiv) To the best of such Originator's knowledge, with respect to
the Mortgage Loans, the documents, instruments and agreements submitted by each
Mortgagor for loan underwriting were not falsified and contain no untrue
statement of a material fact and do not omit to state a material fact required
to be stated therein or necessary to make the information and the statements
contained therein not misleading.
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(xxxv) Except as previously disclosed in writing to the Indenture
Trustee, with respect to each Mortgage Loan, there is only one originally
executed Mortgage and Credit Line Agreement not stamped as a duplicate.
(xxxvi) With respect to the Initial Mortgage Loans as of the Initial
Cut-Off Date, and with respect to the Subsequent Mortgage Loans on the
Subsequent Cut-Off Date, each such Mortgage Loan conforms, and all such Mortgage
Loans in the aggregate conform, in all material respects to the description
thereof set forth in the Registration Statement.
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EXHIBIT B
FORM OF SUBSEQUENT TRANSFER AGREEMENT
Pursuant to this Subsequent Transfer Agreement (this "Agreement"),
dated as of __________, _____, between Advanta Bank Corp., a Utah industrial
loan corporation ("ABC"), Advanta National Bank, a national banking association
("ANB"), and Advanta Finance Corp., a Nevada corporation ("AFC"), on one hand,
and Advanta Conduit Receivables, Inc., a Nevada corporation ("Purchaser"), on
the other hand (ABC, ANB and AFC are sometimes individually referred to herein
as an "Originator" and sometimes collectively referred to herein as the
"Originators"), and pursuant to the Purchase Agreement dated as of April 1, 2000
(the "Purchase Agreement"), among the Originators and the Purchaser, the
Originators and the Purchaser agree to the sale by the Originators and the
purchase by the Purchaser of the Mortgage Loans listed on the attached Schedule
of Mortgage Loans (the "Subsequent Mortgage Loans").
Capitalized terms are used in this Agreement as defined in Annex 1 of
the Indenture, dated as of April 1, 2000 (the "Indenture"), between Advanta
Revolving Home Equity Loan Trust 2000-A and Bankers Trust Company of California,
N.A., as Indenture Trustee, which meanings are incorporated by reference herein.
All other capitalized terms used herein shall have the meanings specified
herein.
Section 1. Sale of Subsequent Mortgage Loans.
(a) The Originators do hereby sell, transfer, assign, set over and
convey to the Purchaser, without recourse, all of their right, title and
interest in and to the Subsequent Mortgage Loans, and including all principal
and interest collected in respect of the Subsequent Mortgage Loans on and after
the Subsequent Cut-Off Date, and all items with respect to the Subsequent
Mortgage Loans to be delivered pursuant to Section 2.02 of the Purchase
Agreement; provided, however, that the Originators reserve and retain all right,
title and interest in and to principal and interest collected in respect of the
Subsequent Mortgage Loans prior to the Subsequent Cut-Off Date. The Originators,
contemporaneously with the delivery of this Agreement, have delivered or caused
to be delivered to the Purchaser each item set forth in Section 2.02 of the
Purchase Agreement.
(b) The transfer to the Purchaser by the Originators of the Subsequent
Mortgage Loans identified on the Schedule of Mortgage Loans shall be absolute
and is intended by the parties hereto to constitute a sale by the Originators to
the Purchaser on the Subsequent Transfer Date of all the Originators' right,
title and interest in and to the Subsequent Mortgage Loans, and other property
as and to the extent described above. In the event the transactions set forth
herein shall be deemed not to be a sale, the Originators hereby grant to the
Purchaser as of the Subsequent Transfer Date a security interest in all of the
Originators' right, title and interest in, to and under the Subsequent Mortgage
Loans, and such other property, to secure all of the Originators' obligations
hereunder, and this Agreement shall constitute a security agreement under
applicable law. The Originators agree to take or cause to be taken such actions
and to execute such documents, including without limitation the filing of all
necessary UCC-1 financing
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statements and any continuation statements with respect thereto as are necessary
to perfect and protect the Purchaser's interests in each Subsequent Mortgage
Loan and the proceeds thereof.
(c) The expenses and costs relating to the delivery of the Subsequent
Mortgage Loans and this Agreement shall be borne by the Originators.
Section 2. Representations and Warranties; Conditions Precedent.
(a) Each of the Originators hereby affirms the representations and
warranties set forth in Sections 4.01 and 4.02 of the Purchase Agreement that
relate to such Originator or the Subsequent Mortgage Loans conveyed by such
Originator as of the date hereof. Each of the Originators hereby confirms that
each of the conditions set forth in Section 2.02 of the Purchase Agreement are
satisfied as of the date hereof and further represents and warrants that each
Subsequent Mortgage Loan conveyed by such Originator complies with the
requirements of this Agreement and Section 2.01(b) of the Purchase Agreement.
(b) Each of the Originators hereby affirms that it is solvent, is able
to pay its debts as they become due and has capital sufficient to carry on its
business and its obligations hereunder; it will not be rendered insolvent by the
execution and delivery of this Agreement or by the performance of its
obligations hereunder nor is it aware of any pending insolvency; no petition of
bankruptcy (or similar insolvency proceeding) has been filed by or against such
Originator prior to the date hereof.
(c) All terms and conditions of the Purchase Agreement are hereby
ratified and confirmed; provided, however, that in the event of any conflict the
provisions of this Agreement shall control over the conflicting provisions of
the Purchase Agreement.
Section 3. Recordation of Instrument. To the extent permitted by
applicable law or a memorandum thereof if permitted under applicable law, this
Agreement is subject to recordation in all appropriate public offices for real
property records in all of the counties or other comparable jurisdictions in
which any or all of the properties subject to the related Mortgages are
situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Master Servicer at the Noteholders'
expense on direction of Noteholders holding Notes evidencing at least 51% of the
Aggregate Note Balance, but only when accompanied by an Opinion of Counsel to
the effect that such recordation materially and beneficially affects the
interests of the Noteholders or is necessary for the administration or servicing
of the Subsequent Mortgage Loans.
SECTION 4. GOVERNING LAW. THIS INSTRUMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAWS PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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Section 5. Counterparts. This Agreement may be executed in
counterparts, each of which, when so executed, shall be deemed to be an original
and together shall constitute one and the same instrument.
Section 6. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Originators and the Purchaser and their
respective successors and assigns.
ADVANTA CONDUIT RECEIVABLES, INC.,
as Purchaser
By:
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA BANK CORP.,
as an Originator
By:
------------------------------------------
Name:
Title:
ADVANTA NATIONAL BANK,
as an Originator
By:
------------------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA FINANCE CORP.,
as an Originator
By:
------------------------------------------
Name: Xxxxxxx Xxxx
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Title: Vice President
