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Exhibit 4.4
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Execution
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MASTER LOAN TRANSFER AGREEMENT
Dated as of March 1, 1999
by and among
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK
ADVANTA BANK CORP.
ADVANTA FINANCE CORP.,
as Affiliated Originators
ADVANTA CONDUIT RECEIVABLES, INC.
as an Affiliate
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
and
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
as Sponsor
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Page
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Section 1. Definitions.......................................................................... 1
Section 2. Interest Calculations................................................................ 3
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......................................................... 8
Section 6. Authorized Representatives........................................................... 14
Section 7. Notices.............................................................................. 14
Section 8. Governing Law........................................................................ 15
Section 9. Assignment........................................................................... 15
Section 10. Counterparts......................................................................... 15
Section 11. Amendment............................................................................ 15
Section 12. Severability of Provisions........................................................... 15
Section 13. No Agency; No Partnership or Joint Venture........................................... 15
Section 14. Further Assurances................................................................... 15
Section 15. The Certificate Insurer.............................................................. 16
Section 16. Maintenance of Records............................................................... 16
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THIS MASTER LOAN TRANSFER AGREEMENT, dated as of March 1,
1999, 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., Advanta Bank Corp. and Advanta
National Bank, each a seller (each an "Affiliated Originator" and collectively,
the "Affiliated Originators"), Advanta Conduit Receivables, Inc. (the
"Affiliate"), Bankers Trust Company of California, N.A., as trustee ("Trustee")
and Advanta Mortgage Conduit Services, Inc., as sponsor ("Sponsor");
I. BACKGROUND
A. Each Affiliated Originator is an originator or purchaser of
mortgage loans which such Affiliated Originator may, from time to time, convey
to a Warehouse Trust;
B. The Affiliated Originators and the Sponsor expect, from time
to time, to cause such mortgage loans to be conveyed to 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 Section; provided, however, that any capitalized
terms used herein or in any conveyance Agreement and not defined herein shall
have their respective meanings as set forth in the 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, including the Conduit Acquisition Trust.
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.
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Conduit Acquisition P&S: The Pooling and Servicing Agreement
dated as of May 1, 1997, as amended, 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.
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.
Junior Mortgage Loan: A Mortgage Loan which constitutes a
junior priority mortgage lien with respect to the related Property.
Junior Lien: With respect to any Junior Mortgage Loan, the
mortgage loan relating to the corresponding Property having a senior priority
lien.
Loan Balance: With respect to each Mortgage Loan, the
outstanding principal balance thereof on the related Cut-Off 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.
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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, any affiliate of 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
and/or to an Advanta Trust pursuant to a specific Conveyance Agreement.
Property: The underlying property securing a Mortgage Loan.
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.
Trustee: Bankers Trust Company of California, N.A., located on
the date of execution of this Agreement at 0 Xxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000, a national banking association, not in its individual capacity but solely
as Trustee, and any successor hereunder.
Unaffiliated Originator Loan: Any Mortgage Loan purchased by
an Affiliated Originator from an Unaffiliated Originator.
Unaffiliated Originators: Any Originator not affiliated with
the Sponsor.
Warehouse Trust: Any trust established by an affiliate of the
Sponsor to finance the origination of mortgage loans, including, without
limitation, the Conduit Acquisition Trust.
Section 2. Interest Calculations.
Calculations of interest hereunder, including, without limitation, calculations
of interest at the Coupon Rate, which are made in respect of the Loan Balance of
a Mortgage Loan shall be made on a daily basis using any of the following (i) a
360-day year comprised of twelve 30-day months, (ii) a 360-day year and the
actual number of days elapsed in the applicable interest period, or (iii) a
365-day year and the actual number of days elapsed in the applicable interest
period, as required by the related Note.
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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 to the
Sponsor and/or 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 Advanta National Bank USA, a national banking association, and,
in the case of Advanta Bank Corp., a Utah industrial loan corporation)
duly organized, validly existing and in good standing under the laws
governing its creation and existence and is in good standing as a
foreign corporation in each jurisdiction in which the nature of its
business, or the properties owned or leased by it make such
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
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).
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(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 might have consequences that would materially and
adversely affect its performance hereunder and under the Conveyance
Agreements to which such Affiliated Originator is a party.
(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,
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judicial or otherwise) and either the time within which any appeal
therefrom may be taken or review thereof may be obtained has expired or
no review thereof may be obtained or appeal therefrom taken, and are
adequate to authorize the consummation of the transactions contemplated
by this Agreement and the Conveyance Agreements on the part of such
Affiliated Originator and the performance by such Affiliated Originator
of its obligations under this Agreement and such of the Conveyance
Agreements to which it is a party.
(x) The origination practices used by such Affiliated
Originator with respect to the Mortgage Loans 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 Master Servicer's underwriting criteria as
described in the Prospectus.
(xi) The transactions contemplated by this Agreement are in
the ordinary course of business of such Affiliated Originator. The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Master Servicer pursuant to this Agreement are not
subject to the bulk transfer laws or any similar statutory provisions
in effect in any applicable jurisdiction.
(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.
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
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pursuant to this Agreement) by the Sponsor and the consummation of the
transactions contemplated hereby have been duly and validly authorized
by all necessary corporate action and do not violate the organization
documents of the Sponsor, contravene or violate any law, regulation,
rule, order, judgement or decree to which the Sponsor or its properties
are subject or contravene, violate or result in any breach of any
provision of, or constitute a default under, or result in the
imposition of any lien on any assets of the Sponsor pursuant to the
provisions of, any mortgage, indenture, contract, agreement or other
undertaking to which the Sponsor is a party or which purports to be
binding upon Sponsor or any of Sponsor's assets; this Agreement
evidences the valid and binding obligation of the Sponsor enforceable
against the Sponsor in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally or the
application of equitable principles in any proceeding, whether at law
or in equity;
(ii) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or
agency, that are necessary in connection with the execution and
delivery by the Sponsor of this Agreement, have been duly taken, given
or obtained, as the case may be, are in full force and effect, are not
subject to any pending proceedings or appeals (administrative, judicial
or otherwise) and either the time within which any appeal therefrom may
be taken or review thereof may be obtained has expired or no review
thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this
Agreement on the part of the Sponsor and the performance by the Sponsor
of its obligations under this Agreement;
(iii) There is no action, suit, proceeding or investigation
pending or, to the best of the Sponsor's knowledge, threatened against
the Sponsor which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Sponsor or in any
material impairment of the right or ability of the Sponsor to carry on
its business substantially as now conducted, or in any material
liability on the part of the Sponsor or which would draw into question
the validity of this Agreement or of any action taken or to be taken in
connection with the obligations of the Sponsor contemplated herein, or
which would be likely to impair the ability of the Sponsor to perform
under the terms of this Agreement; and
(iv) The Sponsor has the right to cause or request the
transfer of the Mortgage Loans subject to a Warehouse Trust to an
Advanta Trust or to direct or request an Advanta Trust to acquire such
Mortgage Loans.
The representations and warranties set forth in this paragraph (b) shall survive
the sale and assignment of the Mortgage Loans to the Sponsor. Upon discovery of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Affiliated Originator, the Affiliated
Originator shall give
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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 representations and
warranties which will be deemed to have been made by each Affiliated Originator
in connection with each conveyance of a Pool to the Sponsor and/or 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;
(iv) Each Property is improved by a single (one-to-four)
family residential dwelling, which may include manufactured homes which
qualify as eligible for inclusion in a REMIC, condominiums and
townhouses but shall not include cooperatives; provided, however, that
no more than 5.0% by aggregate principal balance of the Mortgage Loans
as of the Initial Cut-Off Date were leasehold mortgages.;
(v) No Mortgage Loan had a Combined Loan-to-Value Ratio in
excess of 100%;
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(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 Junior 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 and each Warehouse Trust held
good and indefeasible title to, and was the sole owner of, each
Mortgage Loan conveyed by such Affiliated Originator or such Warehouse
Trust, as applicable, subject to no liens, charges, mortgages,
encumbrances or rights of others except liens which will be released
simultaneously with such transfer and assignment; and immediately upon
the transfer and assignment herein contemplated, the Trustee will hold
good and indefeasible title to, and be the sole owner of, each Mortgage
Loan subject to no liens, charges, mortgages, encumbrances or rights of
others except liens which will be released simultaneously with such
transfer and assignment;
(viii) 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;
(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,
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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, second or third
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 Junior Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
full insurable value of the Property;
(xv) If the Mortgage Loan at the time of origination relates
to a Property in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards,
(which may be a blanket policy of the type described in the related
Advanta Pooling Agreement) a flood insurance policy in a form meeting
the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable carrier is in effect with
respect to such Property in an amount representing coverage, and which
provides for a recovery by the Master Servicer of insurance proceeds
relating to such Mortgage Loan of not less than the least of (i) the
outstanding principal balance of the Mortgage Loan, (ii) the minimum
amount required to compensate for damage or loss on a replacement cost
basis and (iii) the maximum amount of insurance that is available under
the Flood Disaster Protection Act of 1973;
(xvi) Each Mortgage and Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with
its terms, except only as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether considered in a proceeding or
action in equity or at law), and all parties to each Mortgage
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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 or Warehouse Trust including, to the extent such Mortgage
Loan is not covered by a blanket policy described in the Advanta
Pooling Agreement, any necessary notifications of insurers, assignments
of policies or interests therein, and establishments of co-insured,
joint loss payee and mortgagee rights in favor of the 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 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;
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(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, except as may be otherwise
provided in the Advanta Pooling Agreement;
(xxvi) Any advances made after the date of origination of a
Mortgage Loan but prior to the Cut-Off Date, have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Schedule of
Mortgage Loans. 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, 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 Junior Mortgage Loan, either (A)
no consent for such Mortgage Loan was required by the holder of the
related Senior Lien prior to the making of such Mortgage Loan or (B)
such consent has been obtained and is contained in the related File;
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(xxxii) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related 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 Junior Mortgage Loan is at least
twelve months prior to the maturity date of the related first mortgage
loan if such first mortgage loan provides for a balloon payment;
(xxxvi) The credit underwriting guidelines applicable to each
Mortgage Loan conform in all material respects to the Sponsor's
underwriting guidelines;
(xxxvii) All parties to the Note and the Mortgage had legal
capacity to execute the Note and the Mortgage and each Note and
Mortgage have been duly and properly executed by such parties; and
(xxxviii)The related Affiliated Originator has no actual
knowledge that there exist on any 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
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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 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
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Mortgage Structured Finance
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
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Section 8. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to conflict of laws rules applied in
the State of New York.
Section 9. Assignment.
No party to this Agreement may assign its rights or delegate its obligations
under this Agreement without the express written consent of the other parties,
except as otherwise set forth in this Agreement.
Section 10. Counterparts.
For the purpose of facilitating the execution of this Agreement and for other
purposes, this Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed to be an original, and together
shall constitute and be one and the same instrument.
Section 11. Amendment.
This Agreement may be amended from time to time by 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.
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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 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.
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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 NATIONAL BANK
as Sellers and
ADVANTA CONDUIT RECEIVABLES, INC.
An Affiliate
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA BANK CORP.
as Seller
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: President & CEO
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee and not in its
individual capacity
By: /s/ Xxxx XxXxxxx
--------------------------------
Name: Xxxx XxXxxxx
Title: Vice President
[MASTER LOAN TRANSFER AGREEMENT]
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ADVANTA MORTGAGE CONDUIT SERVICES,
INC. as Sponsor
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
ADVANTA FINANCE CORP.
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
[MASTER LOAN TRANSFER AGREEMENT]
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EXHIBIT A
CONVEYANCE AGREEMENT
Advanta Mortgage Corp. USA, Advanta Mortgage Corp.
Midatlantic, Advanta Mortgage Corp. Midatlantic II, Advanta Mortgage Corp.
Midwest, Advanta Mortgage Corp. of New Jersey, Advanta Mortgage Corp. Northeast,
Advanta Finance Corp., Advanta Bank Corp. and Advanta National Bank, (each, an
"Affiliated Originator"), Advanta Conduit Receivables, Inc., as an Affiliate,
and Advanta Mortgage Conduit Services, Inc., as Sponsor, pursuant to the Master
Loan Transfer Agreement dated as of March 1, 1999 among themselves and Bankers
Trust Company of California, N.A. as Trustee (the "Master Transfer Agreement"),
hereby confirm their understanding with respect to the conveyance by each
Affiliated Originator, the Warehouse Trusts the Affiliate and the Sponsor of
those Mortgage Loans listed on the attached Schedule of Mortgage Loans (the
"Transferred Mortgage Loans") to the Sponsor and /or the Advanta Mortgage Loan
Trust_____-__.
Conveyance of Transferred Mortgage Loans.
Each Affiliated Originator, the Affiliate and the Sponsor, concurrently with the
execution and delivery of this Conveyance Agreement, does hereby irrevocably
transfer, assign, set over and otherwise convey, and does direct the Trustee to
convey to the Sponsor and/or the Advanta Mortgage Loan Trust - , without
recourse (except as otherwise explicitly provided for herein) all of its right,
title and interest in and to the Transferred Mortgage Loans being conveyed by
it, including specifically, without limitation, the Mortgages (as such term is
defined in the "related Advanta Pooling Agreement"), the Files and all other
documents, materials and properties appurtenant thereto and the Notes, including
all accrued interest and principal received by such Affiliated Originator on or
with respect to such Transferred Mortgage Loans on or after the related Cut-off
Date, together with all of its right, title and interest in and to the proceeds
received on or after the related Cut-off Date of any related mortgage insurance
policies (excluding any non-mortgage related or credit life insurance policies).
If an Affiliated Originator cannot deliver the original
Mortgage or mortgage assignment with evidence of recording thereon concurrently
with the execution and delivery of this Conveyance Agreement solely because of a
delay caused by the public recording office where such original Mortgage or
mortgage assignment has been delivered for recordation, such Affiliated
Originator shall promptly deliver to the Trustee such original Mortgage or
mortgage assignment with evidence of recording indicated thereon upon receipt
thereof from the public recording official.
The costs relating to the delivery of the documents specified
in this Conveyance Agreement shall be borne by each Affiliated Originator.
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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 Master Transfer Agreement are
hereby incorporated herein, provided that in the event of any conflict the
provisions of this Conveyance Agreement shall control over the conflicting
provisions of the Master Transfer Agreement.
For purposes of this Conveyance Agreement, the "related
Advanta Pooling Agreement" is the Pooling and Servicing Agreement dated as of
_________,_____ relating to Advanta Mortgage Loan Trust ______-__.
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Terms capitalized herein and not defined herein shall have
their respective meanings as set forth in the Master Transfer Agreement.
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK,
ADVANTA BANK CORP.
as Affiliated Originators
and
ADVANTA CONDUIT RECEIVABLES, INC.
as an Affiliate
By:_________________________________________
Xxxxxxx Xxxx, Vice President
ADVANTA MORTGAGE CONDUIT SERVICES,
INC., as Sponsor
By:_________________________________________
Xxxxxxx Xxxx, Vice President
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A., as Trustee
By:_________________________________________
Name:
Title:
ADVANTA FINANCE CORP.
By:_________________________________________
Name:
Title:
Dated:
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EXHIBIT B
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Master Loan Transfer
Agreement, dated as of March 1, 1999 (the "Agreement"), among Advanta Mortgage
Corp. USA, Advanta Mortgage Corp. Midatlantic, Advanta Mortgage Corp.
Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta Mortgage Corp. of New
Jersey, Advanta Mortgage Corp. Northeast, Advanta Finance Corp., Advanta Bank
Corp. and Advanta National Bank, as Affiliated Originators, Advanta Conduit
Receivables, Inc., as an Affiliate, Advanta Mortgage Conduit Services, Inc., as
Sponsor and Bankers Trust Company of California, N.A., as Trustee:
The following are the Affiliated Originators' Authorized
Representatives for purposes of the Agreement:
Name Title
[Xxxxxxx Xxxx] [Vice President]
[Xxxxx XxXxxxx] [Vice President]
The following are the Sponsor's Authorized Representatives for
purposes of the Agreement:
Name Title
[Xxxxxxx Xxxx] [Vice President]
[Xxxxx XxXxxxx] [Vice President]
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