EXECUTION COPY
-------------------------------------------------------------------------------
MASTER LOAN TRANSFER AGREEMENT
Dated as of February 15, 1995
by and among
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
COLONIAL NATIONAL BANK USA
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
ADVANTA FINANCE CORP.,
as Affiliated Originators,
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
and
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
as Sponsor
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Section 1. Definitions.................................................. 1
Section 2. Interest Calculations........................................ 4
Section 3. Transfers of Mortgage Loans.................................. 4
Section 4. Representations, Warranties and Covenants
Regarding the Affiliated Originators and the
Sponsor...................................................... 4
Section 5. Representations and Warranties of the
Affiliated Originators Regarding the Mortgage
Loans........................................................ 9
Section 6. Authorized Representatives................................... 16
Section 7. Notices...................................................... 16
Section 8. Governing Law................................................ 17
Section 9. Assignment................................................... 17
Section 10. Counterparts................................................. 17
Section 11. Amendment.................................................... 17
Section 12. Severability of Provisions................................... 17
Section 13. No Agency; No Partnership or Joint Venture................... 17
Section 14. Further Assurances........................................... 18
Section 15. The Certificate Insurer...................................... 18
Section 16. Maintenance of Records....................................... 18
i
THIS MASTER LOAN TRANSFER AGREEMENT, dated as of February 15, 1995,
between Advanta Mortgage Corp. USA, Advanta Mortgage Corp. Midatlantic, Advanta
Mortgage Corp. Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta Mortgage
Corp. of New Jersey, Advanta Mortgage Corp. Northeast, Advanta Mortgage Conduit
Services, Inc., Advanta Finance Corp. and Colonial National Bank USA, each a
seller (each an "Affiliated Originator" and collectively, the "Affiliated
Originators"), 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 the Conduit Acquisition Trust, or cause the Conduit Acquisition Trust to
acquire;
B. The Affiliated Originators and the Sponsor expect, from time to
time, to cause that such mortgage loans to be conveyed to an 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 Article;
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 related Advanta Pooling Agreement.
Advanta Pooling Agreement: Any Pooling and Servicing Agreement entered
into by Advanta Mortgage Conduit Services, Inc. as Sponsor, Advanta Mortgage
Corp. USA, as Master Servicer and a trustee, as it may be amended and
supplemented from time to time by the parties thereto.
Advanta Trust: A securitization trust created by the Sponsor into
which Mortgage Loans described in this Agreement and the Conveyance Agreements
are deposited.
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 another Originator (other than any other Affiliated Originator)
as part of a bulk portfolio acquisition.
Conduit Acquisition P&S: The Pooling and Servicers Agreement dated as
of February 15, 1995 by and between the Sponsor and the Trustee relating to the
Conduit Acquisition Trust.
Conduit Acquisition Trust: The trust created pursuant to the Conduit
Acquisition P&S.
Conveyance Agreement: Any Conveyance Agreement relating to a Pool, in
substantially the form set forth as Exhibit A hereto.
Coupon Rate: The rate of interest borne by each Note.
Cut-Off Date: With respect to any Pool, as 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.
File: The documents delivered to the Trustee pursuant to the document
delivery provisions of the Conduit Acquisition P&S pertaining to a particular
Mortgage Loan, together with any additional documents required to be added to
the File pursuant to the Conduit Acquisition P&S.
2
First Mortgage Loan: A Mortgage Loan which constitutes a first
priority mortgage lien with respect to any 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.
Loan Balance: With respect to each Mortgage Loan, the outstanding
principal balance thereof on the related CutOff Date, less any related
Principal Remittance Amounts relating to such Mortgage Loan included in
previous related Monthly Remittance Amounts that were transferred by the Master
Servicer or any Sub-Servicer to the Trustee for deposit in the related
Certificate Account.
Master Servicer: Advanta Mortgage Corp. USA, a Delaware corporation,
and its permitted successors and assigns.
Mortgage Loans: Each of the mortgage loans subject hereto, together
with any Qualified Replacement Mortgages substituted therefor in accordance
with the related Advanta Pooling Agreement.
Note: The note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
Offered Certificates: Any securities issued by an Advanta Trust which
are not retained by the Sponsor or any Originator.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pool: Any group of Mortgage Loans transferred to the Sponsor pursuant
to a specific Conveyance Agreement.
Property: The underlying property securing a Mortgage Loan.
3
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 related Advanta
Trust.
Schedules of Mortgage Loans: The Schedules of Mortgage Loans required
to be delivered pursuant to the related Advanta Pooling Agreement.
Second Mortgage Loan: A Mortgage Loan which constitutes a second
priority mortgage lien with respect to the related Property.
Senior Lien: With respect to any Second Mortgage Loan, the mortgage
loan relating to the corresponding Property having a first priority lien; and
with respect to any Third Mortgage Loan, the mortgage loans relating to the
corresponding Property having first and second priority liens.
Third Mortgage Loan: A Mortgage Loan which constitutes a third
priority mortgage lien with respect to the related Property.
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 (x) not affiliated with the
Sponsor and (y) approved in writing by the Certificate Insurer.
Section 2. Interest Calculations. All 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 a 360-day year comprised of twelve 30-day
months.
4
Section 3. Transfers of Mortgage Loans. From time to time in
connection with the establishment of Advanta Trusts the Affiliated Originators
and the Sponsor, intend to transfer Mortgage Loans from the Conduit Acquisition
Trust to the related Advanta Trust. Each such transfer will be evidenced by a
Conveyance Agreement in substantially the form of Exhibit A hereto.
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 Colonial National Bank USA, a national banking association)
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
qualification necessary. Such 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 such
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
5
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 other 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 that would materially and adversely affect
the condition (financial or otherwise) or operations of such
Affiliated Originator or its properties or might have consequences
that would materially and adversely affect
6
its performance hereunder and under the Conveyance Agreements to which
such Affiliated Originator is a party.
(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 by the Trustee under this Agreement, the related
Advanta Trust will have good and marketable title to such Mortgage
Loan and such other items of the related Trust Estate 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
7
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 originated by such
Affiliated Originator have been, (i) in all material respects, legal,
proper, prudent and customary in the mortgage loan lending business
and (ii) in compliance with the 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 Servicer pursuant to this Agreement are not subject
to the bulk transfer laws or any similar statutory provisions in
effect in any applicable jurisdiction.
(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 related 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.
8
In addition, each Affiliated Originator hereby covenants to perform
the obligations, if any, imposed upon it by the related 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
9
from any federal, state or 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;
and
(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.
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.
Section 5. Representations and Warranties of the Affiliated
Originators Regarding the Mortgage Loans. (a) Set forth in paragraph (b) below
is a listing of
10
representations and warranties which will be deemed to have been made by each
Affiliated Originator in connection with each conveyance of a Pool from the
Conduit Acquisition Trust to the related Advanta Trust. In addition, a
Conveyance Agreement may, with respect to the Mortgage Loans in the related
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 are 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:
(i) The information with respect to each Mortgage Loan set
forth in the Schedules of Mortgage Loans is true and correct as of the
Cut-Off Date;
(ii) All of the original or certified documentation required
to be delivered to the Trustee pursuant to the related 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 such Advanta Pooling
Agreement. Each of the documents and instruments specified to be
included therein has been duly executed and 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 and is a Mortgage;
11
(iv) Each Property is improved by a single (one-to-four)
family residential dwelling, which may include condominiums and
townhouses but shall not include cooperatives;
(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 Property (subject in the case of
any Second Mortgage Loan or Third Mortgage Loan only to a Senior Lien
on such 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 held good and indefeasible
title to, and was the sole owner of, each Mortgage Loan conveyed by
such Affiliated Originator 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) As of the related Cut-Off Date, no Mortgage Loan is 30
or more days Delinquent, except for any portion of the Mortgage Loans
which the related Advanta Pooling Agreement permits to be more than 30
days Delinquent;
12
(ix) There is no delinquent tax or assessment lien or
mechanic's lien on any Property, and each Property is free of
substantial damage and is in good repair;
(x) 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 Mortgage Note or the Mortgage, or the
exercise of any right thereunder, render either the Mortgage 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) There is no mechanics' lien or claim for work, labor or
material affecting any 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;
(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 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 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 or
13
second mortgage lien of record on the real 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 will be valid and thereafter such policy
shall continue in full force and effect;
(xiv) The improvements upon each Property are covered by a
valid and existing hazard insurance policy (which may be a blanket
policy of the type described in the related 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 Second 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 Property;
(xv) If any Property is in an area identified in the Federal
Register by the Federal Emergency Management Agency as having special
flood hazards, a flood insurance policy (which may be a blanket policy
of the type described in the Advanta Pooling Agreement) in a form
meeting the requirements of the current guidelines of the Federal
Insurance Administration is in effect with respect to such Property
with a generally acceptable carrier in an amount representing coverage
not less than the least of (A) the outstanding principal balance of
the related Mortgage Loan (together, in the case of a Second 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 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, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights
14
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 servicer in any Insurance Policies
applicable to any Mortgage Loans delivered by such Affiliated
Originator 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 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, (or are
in the process of being recorded);
(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
15
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) No Mortgage Loan was originated under a buydown plan;
(xxiii) No Mortgage Loan provides for negative amortization,
has a shared appreciation feature, or other contingent interest
feature;
(xxiv) Each 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;
(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 Property is sold without the prior
consent of the mortgagee thereunder;
(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. The consolidated principal amount does not exceed the
original principal amount of the related Mortgage Loan. 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) There is no proceeding pending or threatened for the
total or partial condemnation of any Property, nor is such a
proceeding currently occurring,
16
and each Property is undamaged by waste, fire, earthquake or earth
movement, flood, tornado or other casualty, so as to affect adversely
the value of the 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 Property lie wholly
within the boundaries and building restriction lines of such Property,
and no improvements on adjoining properties encroach upon such
Property, and, if a title insurance policy exists with respect to such
Property, are stated in such title insurance policy and affirmatively
insured;
(xxix) No improvement located on or being part of any
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 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 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 related Trust to the 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 Second 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 File;
(xxxii) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the
17
realization against the related 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.
There is no homestead or other exemption available which materially
interferes with the right to sell the related 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) Except for any Bulk Acquisition Loan, 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) Except for any Bulk Acquisition Loan, the maturity
date of each Mortgage Loan which is a Second 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 which is not a Bulk Acquisition Loan or an Unaffiliated
Originator Loan conform in all material respects to the Sponsor's
underwriting guidelines;
(xxxvii) The credit underwriting guidelines applicable to
each Mortgage Loan conform in all material respects to the Sponsor's
underwriting guidelines;
18
(xxxviii) 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
(xxxix) The related Affiliated Originator has no actual
knowledge that there exist on any 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 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 Servicer or any other party to make payments in addition to those
made by the Mortgagor except for delinquency.
The Representations and Warranties shall survive the transfer and
assignment of the Mortgage Loans to the related Advanta Trust. Upon discovery
by the 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 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 of 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. Each Affiliated Originator hereby
acknowledges that a breach of any of the Representations and Warranties listed
in clauses (iii), (x), (xvi) and (xxxviii) above a priori materially and
adversely affects the interests of the related 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
19
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
If to the Affiliated Originators or the Sponsor:
Advanta Mortgage Corp. USA
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx - Vice President
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
20
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 the Affiliated Originators, the Sponsor and the Trustee only by a written
instrument executed by such parties and with the prior written consent of 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 be suspended during any period in which the
Certificate
21
Insurer is in default in its payment obligation's under the related
Certificate Insurance Policies. During any period of suspension, the
Certificate Insurer's rights hereunder shall vest in the Owners of the related
Offered Certificates and shall be exercisable by the owners of at least a
majority in Percentage Interest of the related Offered Certificates then
outstanding. At such time as the related Offered Certificates are no longer
Outstanding under the related Advanta Pooling Agreement and the Certificate
Insurer has been reimbursed for all Insured Payments to which it is entitled
under the related 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.
22
IN WITNESS WHEREOF, the parties hereto have caused this 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. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
ADVANTA FINANCE CORP.
COLONIAL NATIONAL BANK USA
The Sellers
BY: _____________________________________
Name: Xxxx Xxxxxx
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee and not in its
individual capacity
By: _____________________________________
Name: Xxxxx Xxxxxxx
Title: Vice President
ADVANTA MORTGAGE CONDUIT SERVICES,
INC. as Sponsor
By: _____________________________________
Name: Xxxx Xxxxxx
Title: Vice President
23
EXHIBIT A
CONVEYANCE AGREEMENT
Advanta Mortgage Corp. USA, Advanta Mortgage Corp. Midatlantic,
Advanta Mortgage Corp. Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta
Mortgage Corp. of New Jersey, Advanta Mortgage Corp. Northeast, Advanta
Mortgage Conduit Services, Inc., Advanta Finance Corp. and Colonial National
Bank USA, as Affiliated Originators and Advanta Mortgage Conduit Services,
Inc., as Sponsor, pursuant to the Master Loan Transfer Agreement dated as of
February 15, 1995 among themselves and Bankers Trust Company of California,
N.A. as Trustee (the "Mortgage Transfer Agreement"), hereby confirm their
understanding with respect to the conveyance by each Affiliated Originator and
the Sponsor of those Mortgage Loans listed on the attached Schedule of Mortgage
Loans (the "Transferred Mortgage Loans") from the Conduit Acquisition Trust to
the Advanta Mortgage Loan Trust ____-__.
Conveyance of Transferred Mortgage Loans. Each Affiliated Originator
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 from the Conduit
Acquisition Trust to 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 "related Advanta Pooling Agreement"), the Files and all other
documents, materials and properties appurtenant thereto and the Notes,
including all 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 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
A-1
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.
The "Cut-Off Date" with respect to such Transferred Mortgage Loans shall
be ____________ __, _____.
All terms and conditions of the Mortgage 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 Mortgage Transfer Agreement.
For purposes of this Conveyance Agreement, the "related Advanta
Pooling Agreement" is the Pooling and Servicing Agreement dated as of
____________ __, _____ relating to Advanta Mortgage Loan Trust ____-__.
A-2
Terms capitalized herein and not defined herein shall have their
respective meanings as set forth in the Mortgage Transfer Agreement.
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
ADVANTA FINANCE CORP.
COLONIAL NATIONAL BANK USA,
as Affiliated Originators
By:_____________________________
Xxxx Xxxxxx
Vice President
ADVANTA MORTGAGE CONDUIT SERVICES,
INC.
as Sponsor
By:_____________________________
Xxxx Xxxxxx
Vice President
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A.,
as Trustee
By:_____________________________
Xxxxx Xxxxxxx
Vice President
Dated:
A-3
EXHIBIT B
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Master Loan Transfer Agreement, dated
as of February 15, 1995 (the "Agreement"), among Advanta Mortgage Corp. USA,
Advanta Mortgage Corp. Midatlantic, Advanta Mortgage Corp. Midatlantic II,
Advanta Mortgage Corp. Midwest, Advanta Mortgage Corp. of New Jersey, Advanta
Mortgage Corp. Northeast, Advanta Mortgage Conduit Services, Inc., Advanta
Finance Corp. and Colonial National Bank USA, as Affiliated Originators,
Advanta Mortgage Conduit Services, Inc., as Sponsor and Bankers Trust Company
of California, N.A., as Trustee:
The following are the Affiliated Orginators' Authorized
Representatives for purposes of the Agreement:
Name Title
---- -----
Xxxxxxx Xxxxxxx Senior Vice President, General Counsel and
Secretary
Xxxx Xxxxxx Vice President
The following are the Sponsor's Authorized Representatives for
purposes of the Agreement:
Name Title
---- -----
Xxxxxxx Xxxxxxx Senior Vice President, General Counsel and
Secretary
Xxxx Xxxxxx Vice President
B-1
