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Exhibit 4.2
EXECUTION COPY
MASTER LOAN TRANSFER AGREEMENT
Dated as of June 15, 1997
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 FINANCE CORP.
as Affiliated Originators
ADVANTA CONDUIT RECEIVABLES, INC.
as an Affiliate
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
and
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
as Sponsor
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TABLE OF CONTENTS
Page
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Section 1. Definitions............................. 1
Section 2. Interest Calculations................... 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................................. 18
Section 14. Further Assurances...................... 18
Section 15. The Certificate Insurer................. 18
Section 16. Maintenance of Records.................. 18
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THIS MASTER LOAN TRANSFER AGREEMENT, dated as of June 15, 1997,
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 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 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.
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Bulk Acquisition Loan: Any Mortgage Loan purchased by an Affiliated
Originator from another Originator (other than other Affiliated Originator) as
part of a bulk portfolio acquisition.
Conduit Acquisition P&S: The Pooling and Servicing Agreement dated as of
May 1, 1997 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.
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.
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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.
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
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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. 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 either (i) a 360-day year comprised of twelve 30-day
months or (ii) a 360-day year and the actual number of days elapsed in the
applicable interest period, as required by the related Note.
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
Advanta 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
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duly authorized by all necessary corporate action on the part of such Affiliated
Originator and will not violate such Affiliated Originator's Articles of
Incorporation, Articles of Association or Bylaws or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a default)
under, or result in a breach of, any material contract, agreement or other
instrument to which such Affiliated Originator or its properties is a party or
by which such Affiliated Originator is bound or violate any statute or any
order, rule or regulation of any court, governmental agency or body or other
tribunal having jurisdiction over such Affiliated Originator or any of its
properties.
(iii) This Agreement and the Conveyance Agreements to which such Affiliated
Originator is a party, assuming due authorization, execution and delivery by the
other parties hereto and thereto, each constitutes a valid, legal and binding
obligation of such Affiliated Originator, enforceable against it in accordance
with the terms hereof, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(iv) Such Affiliated Originator is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency, which might have consequences that would
materially and adversely affect the condition (financial or other) or operations
of such Affiliated Originator or its properties, or might have consequences that
would materially and adversely affect its performance hereunder and under the
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 its performance
hereunder and under the Conveyance
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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 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)
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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.
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,
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regulation, rule, order, judgement or decree to which the Sponsor or its
properties are subject to 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; 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.
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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 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.
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(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;
(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 or others except liens
which will be released simultaneously 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;
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(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, 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 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
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(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 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 costs 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 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
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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 the 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;
(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
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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 Second Mortgage Loan and each Third
Mortgage Loan, either (A) no consent for such Mortgage Loan was required by the
holder of the related Senior Lien (and, in the case of a Third Mortgage Loan,
the holder of the related second lien) prior to the
17
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
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 or a Third 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) 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
18
(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 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 Originator
hereby acknowledges that a breach of any of the Representations and Warranties
listed in clauses (iii), (x), (xvi) and (xxsviii) 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
19
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: Treasurer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Section 8. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to conflict of laws rules applied in the State of New York.
Section 9. Assignment. No party to this Agreement may assign its
rights or delegate its obligations under this Agreement without the express
written consent of the other parties, except as otherwise set forth in this
Agreement.
Section 10. Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed to be an original, and together shall constitute and be one and the same
instrument.
Section 11. Amendment. This Agreement may be amended from time to
time by 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 effect the validity or
enforceability of the other provisions of this Agreement.
20
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 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.
21
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
The Sellers and
ADVANTA CONDUIT RECEIVABLES, INC.
An Affiliate
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee and not in its
individual capacity
By:
-------------------------------
Name:
Title:
ADVANTA MORTGAGE CONDUIT SERVICES,
INC. as Sponsor
By: /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
ADVANTA FINANCE CORP.
By:
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
(MASTER LOAN TRANSFER AGREEMENT)
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 NATIONAL BANK
The Sellers and
ADVANTA CONDUIT RECEIVABLES, INC.
An Affiliate
By:
---------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee and not in its
individual capacity
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Assistant Secretary
ADVANTA MORTGAGE CONDUIT SERVICES,
INC. as Sponsor
By:
--------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
ADVANTA FINANCE CORP.
By:
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
[MASTER LOAN TRANSFER AGREEMENT]
23
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
The Sellers and
ADVANTA CONDUIT RECEIVABLES, INC.
An Affiliate
By:____________________________________
Name: Xxxx Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY OF CALIFORNIA,
N.A., as Trustee and not in its
individual capacity
By:____________________________________
Name:
Title:
ADVANTA MORTGAGE CONDUIT SERVICES,
INC. as Sponsor
By:____________________________________
Name: Xxxx Xxxxxxxxx
Title: Vice President
ADVANTA FINANCE CORP.
By:/s/ XXXXXXX X. XXXX
____________________________________
Name: Xxxxxxx X. Xxxx
Title: Vice President
[MASTER LOAN TRANSFER AGREEMENT]
24
EXHIBIT 4.2
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.
and Advanta National Bank, as Affiliated Originators, 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
June 15, 1997 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, the Affiliate 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 ______-__.
Convenance 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 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 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.
25
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 _____-__.
26
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 NATIONAL BANK,
as Affiliated Originators
and
ADVANTA CONDUIT RECEIVABLES, INC.
as an Affiliate
By:______________________________
Xxxx Xxxxxxxxx
Vice President
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
as Sponsor
By:_______________________________
Xxxx Xxxxxxxxx
Vice President
BANKERS TRUST COMPANY
OF CALIFORNIA, N.A.,
as Trustee
By:_______________________________
Name:
Title:
ADVANTA FINANCE CORP.
By:_______________________________
Name:
Title:
Dated:
27
EXHIBIT B
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Master Loan Transfer Agreement, dated
as of June 15, 1997 (the "Agreement"), among Advanta Mortgage Corp. USA, Advanta
Mortgage Corp. Midatlantic, Advanta Mortgage Corp. Midatlantic IT, Advanta
Mortgage Corp. Midwest, Advanta Mortgage Corp. of New Jersey, Advanta Mortgage
Corp. Northeast, Advanta Finance 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 Xxxxxxx] [Senior Vice President, General Counsel and Secretary]
[Xxxx Xxxxxxxxx] [Treasurer]
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 Xxxxxxxxx] [Treasurer]
