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EXHIBIT 10.35
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SECURITIZATION ACCESS AGREEMENT
Dated as of November 1, 1996
by and among
MCA FINANCIAL CORP.
MCA MORTGAGE CORPORATION,
MORTGAGE CORPORATION OF AMERICA,
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
and
ADVANTA MORTGAGE CORP. USA,
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TABLE OF CONTENTS
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Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Interest Calculations . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3. Purchases and Sales . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5. Establishment of Advanta Trusts . . . . . . . . . . . . . . . . . . . 12
Section 6. Defective Mortgage Files; Repurchase of Mortgage Loans . . . . . . . 14
Section 7. Representations and Warranties Regarding the MCA Companies, the Buyer
and the Master Servicer . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8. Representations and Warranties of the MCA Companies Regarding the
Mortgage Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 9. Application of Residual Excess Servicing . . . . . . . . . . . . . . 19
Section 10. Distribution Date Statement . . . . . . . . . . . . . . . . . . . . . 20
Section 11. Merger or Consolidation of MCA . . . . . . . . . . . . . . . . . . . 21
Section 12. Servicing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 13. Authorized Representatives . . . . . . . . . . . . . . . . . . . . . 22
Section 14. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 15. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 16. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 17. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 18. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 19. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . 24
Section 20. No Agency; No Partnership or Joint Venture . . . . . . . . . . . . . 24
Section 21. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 22. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 23. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . 24
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Section 24. Legal Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 25. Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Exhibit A -- Form of Conveyance Agreement
Exhibit B -- Contents of Mortgage File
Exhibit C -- Form of Mortgage Loan Schedule
Exhibit D -- Authorized Representatives
Exhibit E -- Applicable Guidelines
Exhibit F -- Representations and Warranties
Exhibit G -- Operational Procedures
Exhibit H -- Form of Opinion
Exhibit I -- Form of Synthetic Residual Certificate
Exhibit J -- Form of Tri-Party Security Agreement
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THIS SECURITIZATION ACCESS AGREEMENT, dated as of November 1,
1996, among MCA Financial Corp., as seller (the "Sponsor"), MCA Mortgage
Corporation and Mortgage Corporation of America, (each company, an "MCA
Company" and collectively, the "MCA Companies"), Advanta Mortgage Conduit
Services, Inc. ("Advanta Conduit"), Advanta Mortgage Corp. USA (the "Advanta
Mortgage" and together with Advanta Conduit, the "Buyer"), and Advanta Mortgage
Corp. USA, in its capacity as master servicer (Advanta Mortgage, in such
capacity, the "Master Servicer"),
W I T N E S S E T H T H A T :
WHEREAS, the MCA Companies originate mortgage loans which the
MCA Companies desire to include in securitization transactions sponsored by the
Buyer;
WHEREAS, the Buyer desires to include such mortgage loans in
its securitization transactions; and
WHEREAS, the MCA Companies and the Buyer desire that the
Master Servicer service such mortgage loans.
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, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Article.
Accumulation Pool: As of any date, all Mortgage Loans
previously sold by the Seller hereunder and which are held by the Conduit
Acquisition Trust on such date. The Accumulation Pool may represent any number
of Pools.
Additional Initial Reserve Amount: With respect to any
Securitized Loan Pool, any additional amount required to be added to the
Reserve Amount in connection with the conveyance of such Securitized Loan Pool
to the related Advanta Trust (including conveyances of any "pre-funded"
Mortgage Loans). The parties acknowledge that their expectation is that the
Additional Initial Reserve Amount will be zero.
Additional Representations and Warranties: With respect to
any Pool, the additional representations and warranties made by each MCA
Company with respect thereto, as set forth in the related Conveyance Agreement.
Advances: Together, any "Delinquency Advances" as may be
required in connection with a Securitized Loan Pool, as defined in the "Pooling
and Servicing" or similar agreement relating to the applicable Advanta Trust,
and any Servicing Advances.
Advanta Trust: Any trust which the Buyer may from time to
time sponsor for the purpose of securitizing, among other things, all or a
portion of the Mortgage Loans and selling the interests therein to investors.
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Agreement: This Securitization Access Agreement and all
amendments hereof and supplements hereto.
Applicable Guidelines: For purposes of this Agreement only
(i.e., not necessarily for purposes of the Whole Loan Agreement) those
underwriting guidelines set forth on Exhibit E hereto, as such Exhibit E may be
revised from time to time by the Buyer and the Sponsor.
Applicable Pool Balance: With respect to any Pool as of any
Distribution Date, the aggregate Principal Balances of the Mortgage Loans in
such Pool as of the opening of business on the first day of the prior calendar
month.
Applicable Rate: With respect to any Mortgage Loan included
in the Accumulation Pool, Prime. With respect to any Mortgage Loan included
in a Securitized Loan Pool, the actual "Pass-Through Rate(s)" for the related
classes of securities for the related period.
Appraised Value: The appraised value of any Mortgaged
Property based upon the appraisal or other valuation made at the time of the
origination of the related Mortgage Loan; or, in the case of a Mortgage Loan
which is a purchase money mortgage; or in the case of a home which is purchased
within the last twelve (12) months, the sale price of the Mortgaged Property at
such time of origination, if such sale price is less than such appraised value.
ARM Loan: A Mortgage Loan which bears an adjustable rate of
interest.
Bond Pricing Discount: An estimated percentage of pricing
discount on the public-offered securities to be issued by an Advanta Trust, as
determined by the Underwriter(s) selected by the Buyer. The parties
acknowledge that their expectation is that the Bond Pricing Discount will be
zero, or as close to zero as reasonably practical.
Business Day: Any day other than (a) a Saturday or a Sunday,
or (b) a day on which national banks in the states of California, or New York
and Delaware are required or authorized by law, executive order or governmental
decree to be closed.
Buyer Information: As defined in Section 5(d) hereof.
Closing Date: With respect to any Pool, the date established
as the "Closing Date" in the related Conveyance Agreement.
Combined Loan-to-Value Ratio: With respect to any First
Mortgage Loan, the percentage equal to the Original Principal Amount of the
related Note divided by the Appraised Value of the related Mortgaged Property
and with respect to any Second Mortgage Loan, the percentage equal to (a) the
sum (i) the remaining principal balance, as of origination of the Second
Mortgage Loan, of the Senior Lien note(s) relating to such Second Mortgage
Loan, and (ii) the Original Principal Amount of the Note relating to such
Second Mortgage Loan, divided by (b) the Appraised Value.
Compensating Interest: Amounts advanced by the Master
Servicer as a result of a prepayment in full by a Mortgagor on a date other
than the scheduled Due Date, and equal to the excess of (x) a full month's
interest on the related Mortgage Loan calculated at the related Coupon Rate
less the Servicing Fee Rate over (y) the interest actually paid by the related
Mortgagor for the related monthly period. The Master Servicer
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shall fund Compensating Interest monthly, but not in excess, in the aggregate
for any monthly period, of the aggregate Servicing Fee retained by the Master
Servicer with respect to such monthly period.
Conduit Acquisition Trust: The Conduit Acquisition Trust
created pursuant to that certain Pooling and Servicing Agreement dated as of
February 15, 1995 among the Buyer, the Master Servicer and the Trustee.
Conveyance Agreement: With respect to the purchase of a Pool,
the Conveyance Agreement in substantially the form of Exhibit A hereto executed
with respect thereto (which term includes the related "Closing Statement and
Funding Recap Summary").
Credit Enhancer: Any financial guarantor or other financial
institution which provides third-party credit enhancement with respect to an
Advanta Trust.
Cut-Off Date: With respect to any Pool, the date established
as the "Cut-Off Date" in the related Conveyance Agreement.
Cut-Off Date Principal Balance: As to any Mortgage Loan, its
Principal Balance as of the opening of business on the related Cut-Off Date.
Defective Mortgage Loan: Any Mortgage Loan which is required
to be repurchased by the MCA Companies pursuant to Section 5(b), 5(c), 6(b) or
8(c) hereof.
Distribution Date: With respect to the Accumulation Pool or
any Securitized Loan Pool, the 25th day of each month or, if such day is not a
Business Day, the Business Day immediately following such 25th day, beginning
in the month specified in the related Conveyance Agreement.
Due Date: With respect to any Mortgage Loan the fixed date in
each month on which the Mortgagor's Monthly Mortgage Payment is due.
"Excess Servicing" means:
(x) with respect to the Accumulation Pool, as of
any Distribution Date, the sum of all interest due (minus the amount
of any interest not required to be advanced by the Master Servicer as
a non-recoverable "Delinquency Advance" or as "Compensating Interest"
in excess of the Servicing Fee) with respect to the Mortgage Loans in
the Accumulation Pool during the prior calendar month (minus any
portion of such interest previously received by the MCA Companies as
part of the related Pool Purchase Price), less the sum of the
following amounts, to be deducted in the following order of priority:
(i) one-twelfth of the Servicing Fee Rate times
the related Applicable Pool Balance;
(ii) the interest, calculated at the Applicable
Rate, which accrued on the Applicable Pool
Balance which relates for the applicable
preceding interest accrual period; and
(iii) the amount of any Advances made or paid by
the Master Servicer with respect to any
Mortgage Loans included in the Accumulation
Pool or such Securitized Loan Pool during the
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prior calendar month, less the amount of any
Advances made or paid by the Master Servicer
on prior monthly periods and recovered during
the current monthly period; and
(y) with respect to any Securitized Loan Pool, as
of any Distribution Date, the sum of all interest due (minus the
amount of any interest not required to be advanced by the Master
Servicer as a non-recoverable "Delinquency Advance" or as
"Compensating Interest" in excess of the Servicing Fee) with respect
to the Mortgage Loans in such Securitized Loan Pool, during the prior
calendar month (minus any portion of such interest previously received
by the MCA Companies as part of the related Pool Purchase Price), less
the sum of the following amounts, to be deducted in the following
order of priority:
(i) one-twelfth of the 35 basis point Monthly Fee
rate times the Applicable Pool Balance of the
Accumulation Pool or such Securitized Loan
Pool;
(ii) one-twelfth of the Servicing Fee Rate times
the related Applicable Pool Balance;
(iii) the sum of (x) the interest, calculated at
the Applicable Rate for the related ARMs,
which accrued on that portion of the
Applicable Pool Balance which relates to
ARMs, plus (y) the interest, calculated at
the Applicable Rate for the related Fixed
Rate Loans, which accrued on that portion of
the Applicable Pool Balance which relates to
Fixed Rate Loans, in each case for the
applicable preceding interest accrual period;
and
(iv) the amount of any Advances made or paid by
the Master Servicer with respect to any
Mortgage Loans included in the Accumulation
Pool or such Securitized Loan Pool during the
prior calendar month, less the amount of any
Advances made or paid by the Master Servicer
on prior monthly periods and recovered during
the current monthly period; and
FDIC: The Federal Deposit Insurance Corporation and its
successors in interest.
FEMA: The Federal Emergency Management Agency and its
successors in interest.
FHLMC: The Federal Home Loan Mortgage Corporation and its
successors in interest.
First Mortgage Loan: A Mortgage Loan which constitutes a
first priority mortgage lien with respect to any Mortgaged Property.
Fixed Rate Loan: A Mortgage Loan which bears interest at a
fixed rate.
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FNMA: The Federal National Mortgage Association and its
successors in interest.
Initial Reserve Amount: With respect to any Pool, the initial
amount of Reserves relating thereto, as set forth in the related Conveyance
Agreement. The parties acknowledge that their expectation is that the Initial
Reserve Amount will be zero, or as close to zero as reasonably practical.
Insurance Policy: Any hazard, floor, title or primary
mortgage insurance policy relating to a Mortgage Loan.
Insurance Proceeds: Proceeds paid by any insurer and received
by the Master Servicer during the prior calendar month pursuant to any
insurance policy covering a Mortgage Loan or the related Mortgaged Property,
and the proceeds from any fidelity bond or errors and omission policy, net of
any component thereof covering any expenses incurred by or on behalf of the
Master Servicer.
Issuance Costs: With respect to any Securitized Loan Pool,
all costs incurred by the MCA Companies and by the Buyer in connection with the
purchase and sale of a Pool, the establishment of the related Advanta Trust and
the sale of mortgage-backed securities by such Advanta Trust, including,
without limitation, legal, accounting, printing, initial Trustee's fee,
Underwriter's discount, initial Credit Enhancer's fee, Rating Agency's fees and
other customary costs of issuance.
Second Mortgage Loan: Any Mortgage Loan secured by a Mortgage
with a lien of other than first priority.
Liquidated Mortgage Loan: As to any Distribution Date, any
Mortgage Loan as to which the Master Servicer has determined, in accordance
with its regular servicing practices during the prior calendar month, that all
Liquidation Proceeds which it expects to recover from or on account of such
Mortgage Loan have been recovered, which determination may include "charging
off" such Mortgage Loan.
Liquidation Expenses: Expenses which are incurred by the
Master Servicer in connection with the liquidation of any Mortgage Loan and not
recovered under any insurance policy or from any Mortgagor. Such expenses
shall include, without limitation, legal fees and expenses, real estate
brokerage commissions, any unreimbursed amount expended by the Master Servicer
respecting the related Mortgage Loan (including, without limitation, amounts
voluntarily advanced to correct defaults on each related Senior Lien) and any
related and previously unreimbursed Advances.
Liquidation Proceeds: Cash (other than Insurance Proceeds)
received in connection with the liquidation of any Mortgaged Property, whether
through trustee's sale, foreclosure sale or otherwise received in respect of
any Mortgage Loan foreclosed upon (including, without limitation, proceeds from
the rental of the related Mortgaged Property).
Master Commitment: The Master Commitment dated as of November
1, 1996 between the Buyer and the MCA Companies hereto.
Master Servicer: Advanta Mortgage Corp. USA, a Delaware
corporation.
Monthly Fee: As defined in Section 4(a) hereof.
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Monthly Mortgage Payment: With respect to any Mortgage Note,
the amount of each fixed monthly payment (other than final balloon payments)
payable under such Mortgage Note in accordance with its terms, net of any
portion of such monthly payment that represents late payment charges,
prepayment or extension fees or collections allocable to payments to be made by
Mortgagors for payment of insurance premiums, real estate taxes or similar
items.
Mortgage: The mortgage, deed of trust or other instrument
creating a first, second or third lien on an estate in fee simple interest in
real property securing a Mortgage Loan.
Mortgage File: With respect to any Mortgage Loan, the items
set forth on Exhibit B hereto.
Mortgage Loan: Each of the Mortgage Loans sold by the Seller
hereunder.
Mortgage Loan Rate: As to any Mortgage Loan, the per annum
rate of interest applicable to the calculation of interest thereon.
Mortgage Loan Schedule: With respect to any Pool, the
schedule of Mortgage Loans delivered by the MCA Companies with respect thereto
on the related Closing Date. Each such schedule shall be delivered in
computer-readable form on diskette or magnetic tape and physical form and shall
contain the information listed on Exhibit C hereto with respect to each
Mortgage Loan, as amended from time to time.
Mortgage Note: The note or other instrument of indebtedness
evidencing the indebtedness of a Mortgagor under the related Mortgage Loan.
Mortgaged Property: The underlying property securing a
Mortgage Loan.
Mortgagor: The obligor under a Mortgage Note.
Net Insurance Proceeds: Insurance Proceeds from any policy of
insurance covering a Mortgage Loan which (a) are applied by the Master Servicer
to reduce the Principal Balance of the related Mortgage Loan and (b) not
applied to the restoration or repair of the related Mortgaged Property or
released to the related Mortgagor in accordance with the Master Servicer's
regular servicing procedures or the terms of the related Mortgage Loan.
Net Liquidation Proceeds: As to any Mortgage Loan,
Liquidation Proceeds net of Liquidation Expenses. For all purposes of this
Agreement, Net Liquidation Proceeds shall be allocated first to accrued and
unpaid interest on the related Mortgage Loan and then to the Principal Balance
thereof.
Net Purchase Price: With respect to any Pool, the related
Pool Purchase Price minus (i) the related Initial Reserve Amount, if any, (ii)
the related Sponsor's Transaction Expenses and (iii) the related Placement Fee,
all as set forth in the related Conveyance Agreement.
Offering Document: A prospectus, placement memorandum or
other document pursuant to which an Underwriter offers mortgage-backed
securities issued by an Advanta Trust.
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Original Principal Amount: With respect to any Mortgage Note,
the original principal amount due under such Mortgage Note as of its date of
origination.
Other Expenses: Any additional expenses incurred by the Buyer
in connection with the inclusion of Mortgage Loans sold by the Seller in an
Advanta Trust, including, but not limited to the costs of (i) data integrity
review of loan files versus the servicing system, (ii) accountant's "comfort
letter" with respect to any Sponsor Information and (iii) third-party due
diligence expenses relating to on-site review of the MCA Companies or the
Mortgage Loans, to the extent over and above the Buyer's normal expenses for
such a review. The Other Expenses shall not exceed $25,000 per Securitized
Loan Pool, and in no event will exceed $50,000 in any single twelve-month
period.
Pair-Off Fee: As defined in the Master Commitment For
Corporate Finance Relationships.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
Placement Fee: With respect to each Mortgage Loan included in
a Securitized Loan Pool and purchased by the Buyer hereunder, 0.45% times the
Principal Balance of such Mortgage Loan.
Pool: Any group of Mortgage Loans sold by the Seller
hereunder and designated as a "pool" for purposes of this Agreement. For
convenience, each Pool shall be designated by the year of its sale and numbered
sequentially, e.g., 1996-A, 1996-B, etc.
Pool Principal Balance: As of any date, the aggregate
Principal Balances of all Mortgage Loans in the related Pool as of such date.
Pool Purchase Price: With respect to any Pool, the sum of,
for each Mortgage Loan in such Pool (x) the aggregate Principal Balance of each
such Mortgage Loan as of the opening of business on the related Cut-Off Date,
(y) interest accrued on the amount described in clause (x) from and including
the date to which interest was last paid by the Mortgagor (including any
prepaid interest) to but excluding the Closing Date, calculated at the related
Mortgage Loan Rate.
Prime: The Prime Rate of interest charged from time to time
by The Chase Manhattan Bank.
Principal Balance: As to any Mortgage Loan and any date of
determination, the Principal Balance thereof as of the related Cut-Off Date,
less all amounts theretofore applied in reduction of such Principal Balance
after the related Cut-Off Date; provided, however, that a Mortgage Loan that
has become liquidated will be deemed to have a Principal Balance of zero.
Principal Payment: As to any Mortgage Loan and calendar
month, all amounts received or, deemed to have been received by the Master
Servicer from or on behalf of the related Mortgagor during such calendar month
(including Principal Prepayments) which, at the time of receipt or at the time
deemed to have been received, were applied or were required to be applied by
the Master Servicer in reduction of the Principal Balance of such Mortgage
Loan.
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Principal Prepayment: As to any Mortgage Loan and calendar
period, any Mortgagor payment or other recovery in respect of principal on a
Mortgage Loan (including Net Liquidation Proceeds) which, in the case of a
Mortgagor payment, is received in advance of its Due Date and is not
accompanied by an amount as to interest representing scheduled interest for any
month subsequent to the month of such payment or was accompanied by
instructions from the related Mortgagor directing the Master Servicer to apply
such payments to the Principal Balance of such 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 Internal Revenue Code of 1986, as amended (or any successor
statute thereto).
Qualifying Loan: Mortgage Loans which (i) conform to the
Applicable Guidelines, and (ii) which conform to all Representations and
Warranties, as defined in this Agreement and applicable to the related Mortgage
Loans.
Rating Agencies: Collectively, all nationally recognized
statistical credit rating agencies providing a rating on any class of
mortgage-backed securities issued by an Advanta Trust.
Realized Loss: As to any Liquidated Mortgage Loan, the
excess, if any, of (x) the Principal Balance thereof as of the date of
liquidation, together with all unreimbursed Advances over (y) the related Net
Liquidation Proceeds, if any.
Remaining Excess Servicing: With respect to all Securitized
Loan Pools in the aggregate as of any Distribution Date, the excess, if any, of
(x) the aggregate Excess Servicing for all Securitized Loan Pools over (y) the
aggregate Reserve Deposit for all Securitized Loan Pools.
REO Property: Any Mortgaged Property as to which title has
become vested in the Trustee, the Conduit Acquisition Trust or an Advanta Trust
as a result of foreclosure, deed in lieu of foreclosure, etc.
Representations and Warranties: As defined in Section 8(a)
hereof.
Repurchase Price: With respect to any Mortgage Loan
repurchased by the MCA Companies pursuant to the provisions hereof, an amount
equal to (i) the sum of (A) the Principal Balance of such Mortgage Loan as of
the beginning of the calendar month next preceding the Distribution Date on
which the proceeds of such repurchase or purchase are required to be
distributed, (B) interest computed at the applicable Mortgage Loan Rate on such
Principal Balance from the date to which interest was last paid by the
Mortgagor to the end of the calendar month immediately preceding such
Distribution Date on which such repurchase or purchase occurs and (C) any
previously unreimbursed Advances made on or in respect of such Mortgage Loan
less (ii) any payments of principal and interest in respect of such Mortgage
Loan, made by or on behalf of the related Mortgagor during such calendar month.
Reserve Amount: With respect to the Accumulation Pool or any
Securitized Loan Pool, as of any Distribution Date the excess of (x) the sum of
(i) the Initial Reserve Amount(s) for the related Pool(s), (ii) any Additional
Initial Reserve Amounts, (iii) the aggregate, cumulative amount of Reserve
Deposits applicable to the Accumulation Pool or such Securitized Loan Pool, as
the case may be and (iv) investment earnings at Advanta Corp.'s then-standard
reinvestment rate (which, as of the date hereof, is based on the then-
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current 30-day commercial paper rate) over (y) the sum of (i) the aggregate,
cumulative amount of Realized Losses experienced with respect to the related
Pool(s) since their sale by the Seller, (ii) the aggregate, cumulative amount
of Reserve Release Amounts distributed to the MCA Companies on all prior
Distribution Dates and (iii) any amount described in the second sentence of
Section 9(b) hereof which are paid to the MCA Companies.
Reserve Deposit: With respect to the Accumulation Pool or any
Securitized Loan Pool, on any Distribution Date, the lesser of (x) the related
Excess Servicing for such Distribution Date or (y) any related Reserve
Shortfall for such Distribution Date.
Reserve Release Amount: As of any Distribution Date and with
respect to any Securitized Loan Pool, the excess of (x) the related Reserve
Amount on such Distribution Date, after taking into account all credits to, and
deductions therefrom on such Distribution Date over (y) the related Reserve
Requirement for such Distribution Date.
Reserve Requirement: With respect to any Securitized Loan
Pool and Distribution Date, the required amount of Reserves for such
Distribution Date. In no event shall the level of the Reserve Requirement
exceed the level that would be required by the related Credit Enhancer, if the
MCA Companies were to do a stand-alone transaction.
Reserves: The amount of any first-loss protection maintained
with respect to any Pool or group of Pools.
Reserve Shortfall: With respect to any Securitized Loan Pool,
on any Distribution Date, any excess of (x) the related Reserve Requirement for
such Distribution Date over (y) the related Reserve Amount immediately prior to
such Distribution Date.
Residual Excess Servicing: For all Securitized Loan Pools in
the aggregate, the Residual Excess Servicing for any Distribution Date shall
equal the Remaining Excess Servicing, if any, for such Distribution Date plus
the aggregate Reserve Release Amount, if any, for such Distribution Date.
Second Mortgage Loan: A Mortgage Loan which constitutes a
second priority mortgage lien with respect to the related Mortgaged Property.
Securitization Statement: Each statement delivered to the MCA
Companies by the Buyer at the time of establishment of an Advanta Trust
containing Mortgage Loans sold by the MCA Companies hereunder, which statement
shall set forth the final Reserve Requirement for the related Securitized Loan
Pool, the Pass-Through Rate(s) applicable to such Securitized Loan Pool and
related information.
Securitized Loan Pool: Any group of Mortgage Loans sold by
the Seller hereunder and held by a particular Advanta Trust, whether acquired
initially by such Advanta Trust or subsequently acquired through "pre-funded"
purchases. A Securitized Loan Pool may represent any number of Pools.
Seller: Sponsor and its affiliates, Mortgage Corporation of
America and MCA Mortgage Corporation,
Senior Lien: With respect to any Second Mortgage Loan, the
mortgage loan relating to the corresponding Mortgaged Property having a first
priority lien.
Sponsor: MCA Financial Corp., a Michigan corporation.
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Sponsor Information: As defined in Section 5(d) hereof.
Sponsor's Transaction Expenses: With respect to any Pool, the
MCA Companies' pro rata share (based upon the relative aggregate principal
balances of the Mortgage Loans sold by the Seller to the total aggregate
principal balance for all mortgage loans) of the Issuance Costs, which shall be
a minimum of 0.60% times the aggregate Principal Balance of the related
Mortgage Loans.
Servicing Advance: Any out-of-pocket costs or expenses
incurred by the Master Servicer in connection with the performance of its
servicing obligations, including, but not limited to, preservation expenses,
payments for taxes, insurance and payments made to Senior Lien holders,
enforcement and judicial proceedings, including foreclosures, the management
and liquidation of "REO" Properties, etc.
Servicing Fee: The servicing fees payable to the Master
Servicer, as set forth in the Loan Servicing Agreement dated November 1, 1996
among the Master Servicer, the Sponsor and Mortgage Corporation of America.
Total Loan-to-Value Ratio: With respect to any Mortgage Loan,
the percentage equal to the sum of (i) the Original Principal Amount of the
related Note and (ii) the remaining principal balance(s), as of origination of
such Mortgage Loan, of all other note(s) secured by liens, whether senior or
subordinate, on the related Mortgaged Property, divided by the Appraised Value
of the related Mortgaged Property.
Trustee: The trustee designated by the Buyer.
Underwriter: Collectively, any underwriters or placement
agents engaged or consulted by the Buyer in connection with the sale of
mortgage-backed securities by an Advanta Trust.
Whole Loan Agreement: The Master Loan Purchase Agreement
dated as of July 1, 1996 among the parties hereto.
Whole Loan Purchases: A pool of Mortgage Loans purchased
pursuant to a Whole Loan Agreement.
Section 2. Interest Calculations. All calculations of
interest hereunder, including, without limitation, calculations of interest at
the Mortgage Loan Rate, which are made in respect of the Principal Balance of a
Mortgage Loan shall be made on a daily basis using a 360-day year, except to
the extent that any different convention (e.g., "actual/360", "actual/365") is
used with respect to any securities issued by an Advanta Trust.
Section 3. Purchases and Sales. (a) Purchases and Sales
hereunder shall generally be governed by the terms of the Master Commitment.
(b) Purchases of Qualifying Loans under this Agreement
shall occur no more frequently than monthly, in minimal Pool sizes of
$7,500,000 aggregate Principal Balance. Offers of Pools, document review,
servicing transfer and settlement shall be performed by the parties as set
forth in Appendix G hereto, Operational Procedures, as such procedures may be
revised from time to time by the Buyer.
(c) To consummate a proposed purchase the MCA Companies and
the Buyer on behalf of the Conduit Acquisition Trust shall, on or prior to the
related Closing Date,
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execute and deliver a Conveyance Agreement with respect to the related Pool in
substantially the form of Exhibit A hereto. On the related Closing Date the
Buyer shall cause the Net Purchase Price for the related Pool to be wired to
the MCA Companies in immediately available funds.
(d) In connection with each purchase of a Pool the Conduit
Acquisition Trust shall, pursuant to the related Conveyance Agreement, purchase
all of the Seller's right, title and interest to each Mortgage Loan, including
all interest accruing thereon and principal received on or with respect to such
Mortgage Loan on or after the related Cut-Off Date.
(e) the MCA Companies agree to cause their records relating
to the Mortgage Loans to indicate that the Mortgage Loans have been sold to the
Conduit Acquisition Trust. The MCA Companies will treat each sale of a Pool as
a sale for generally accepted accounting purposes, will reflect such sale on
its accounting records, and shall furnish to the Buyer, in connection with the
execution of each Conveyance Agreement an officer's certificate certifying to
the MCA Companies' treatment of the transactions contemplated hereby as sales,
and such other matters as the Buyer may reasonably request.
(f) Prior to the purchase of the first Pool purchased
hereunder the MCA Companies shall cause to be provided to the Buyer and the
Trustee an opinion of counsel in a form approved by the Buyer (and attached as
Exhibit H) relating to the execution and delivery of this Agreement by the MCA
Companies. In connection with each subsequent execution of a Conveyance
Agreement, the MCA Companies shall provide to the Buyer and the Trustee an
officer's certificate in a form approved by the Buyer as to certain legal and
factual matters with respect to such sale.
(g) The MCA Companies shall cause at least 10% (by number of
loans) of each Pool to be reviewed in accordance with quality control
procedures which are standard in the residential mortgage loan industry. Such
review may be undertaken by employees of the MCA Companies or of the Buyer or
its affiliates. Copies of all quality control review reports shall be
furnished to the Buyer on request.
Section 4. Fees and Expenses.
(a) On each Distribution Date the Buyer shall receive a
monthly fee ("Monthly Fee"), with respect to each Securitized Loan Pool, from
cashflows on the related Pool, equal to one-twelfth of 35 basis points times
the Applicable Pool Balance as of the first day of the prior calendar month.
Any amounts due to the Buyer or to the Master Servicer
hereunder or under the Whole Loan Agreement, including, but not limited, to the
fees described above, and the Pair-Off Fee, and any hedging costs, and not paid
when due, shall remain payable by the MCA Companies. Such amounts shall bear
interest at Prime plus 1% and may be funded from any Residual Excess Servicing
otherwise due to the MCA Companies, or offset against any amounts otherwise
payable to the MCA Companies by the Buyer or the Master Servicer.
(b) The MCA Companies shall pay up to $25,000 of the fees
and expenses of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ incurred in connection with the preparation of
this Agreement, at the time of execution and delivery of this Agreement.
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(c) All expenses of recording assignments of mortgage
shall be paid by the MCA Companies, provided that MCA shall be liable for no
more than one such recording fee per Mortgage Loan.
Section 5. Establishment of Advanta Trusts. (a) In
connection with the creation of an Advanta Trust the Buyer may cause the
Conduit Acquisition Trust to convey to such Advanta Trust any or all of the
Mortgage Loans then held as the Accumulation Pool. In connection with any such
conveyance to an Advanta Trust the related Pass-Through Rate(s) and Reserve
Requirement applicable to such Mortgage Loans shall be established by the
Buyer, the related Underwriter(s) and the related Credit Enhancer. Any such
Mortgage Loan so conveyed to an Advanta Trust shall cease to be a "Mortgage
Loan" within the meaning of this Agreement and the rights relating thereto
shall thenceforth be as provided in the related Advanta Pooling Agreement.
The MCA Companies shall pay the applicable Bond Pricing
Discount and the applicable Other Expenses at the time of the establishment of
the related Advanta Trust (which amounts may be offset against any amounts due
to the MCA Companies).
In connection with the conveyance of any Mortgage Loans to an
Advanta Trust the Buyer shall furnish the MCA Companies with the related
Securitization Statement.
If the inclusion in an Advanta Trust of Mortgage Loans sold
hereby would adversely impact the overall Reserve Requirements or pricing
relating to such Advanta Trust, the Buyer, after consulting with the MCA
Companies, may segregate such Mortgage Loans as a separate pool and/or "REMIC"
in such Advanta Trust, and (but shall not be required to) issue specified
classes of securities with respect to such Mortgage Loans. The parties
acknowledge their expectation that no such separate treatment should be
necessary with respect to Mortgage Loans which are Qualifying Loans. Each such
separate pool and/or "REMIC" will have its own Pass-Through Rate and its own
Reserve Requirement. Any additional costs relating to such a structure shall
constitute "Sponsor's Transaction Expenses" payable by the MCA Companies.
The MCA Companies shall have the right, prior to the "cut-off
date" for the related Advanta Trust, to substitute for any Mortgage Loan
described in the preceding paragraph a replacement Mortgage Loan of similar or
better characteristics and unpaid Principal Balance of equal or lesser amount
reasonably acceptable to the Buyer and which is eligible for inclusion in such
Advanta Trust.
(b) If, in connection with the establishment of an Advanta
Trust, any Mortgage Loan in a Securitized Loan Pool is 30 or more days
contractually delinquent and such Mortgage Loan is determined by the Buyer to
be ineligible for inclusion in such Advanta Trust, the Buyer shall promptly
inform the MCA Companies, and the MCA Companies shall have the option to
repurchase such Mortgage Loan in accordance with the provisions of this Section
5 prior to the closing date of such Advanta Trust, to substitute for such
Mortgage Loan a replacement Mortgage Loan of similar or better characteristics
and with an unpaid Principal Balance of equal or lesser amount reasonably
acceptable to the Buyer and which is eligible for inclusion in such Advanta
Trust, or to have such ineligible Mortgage Loan remain in the Accumulation
Pool. The MCA Companies shall have the further right, but not the obligation to
repurchase any Mortgage Loan in an Accumulation Pool which is 30 or more days
contractually delinquent.
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In connection with any such repurchase the MCA Companies shall
deliver the Repurchase Price to the Buyer. In connection with any such
substitution the MCA Companies shall deliver the substitute Mortgage Loan and
the items which constitute the related Mortgage File to the Trustee, and shall
deliver to the Buyer the excess of (x) the outstanding Principal Balance of the
replaced Mortgage Loan over (y) the outstanding Principal Balance of the
substitute Mortgage. In connection with any such repurchase or substitution
the Buyer shall cause the Conduit Acquisition Trust to reconvey the repurchased
or replaced Mortgage Loan to the MCA Companies in the manner described in
Section 6(b) hereof.
(c) Upon the request of the Buyer, the MCA Companies shall
supply to the Buyer access to, and information regarding, the MCA Companies,
the Mortgage Loans, the Sub-Servicer's underwriting practices, financial
condition and related matters. The MCA Companies hereby represent and warrant
to the Buyer that any such information so furnished by the MCA Companies
("Sponsor Information") shall be true, correct and complete in all material
respects. If requested by the Buyer or Underwriter's counsel, the MCA
Companies shall cause a nationally recognized accounting firm to provide the
Buyer with a letter in a form acceptable to Buyer with respect to any Sponsor
Information. The parties acknowledge their expectation that, to the extent
that the Mortgage Loans have been sold servicing-released, no accountant's
letter is expected to be required. The MCA Companies agree to comply with any
reasonable regulatory and quality control requirements requested by the Buyer
based upon the Buyer's review of any Sponsor Information and other review of
the MCA Companies' origination activities.
The MCA Companies shall indemnify and hold the Buyer harmless
from any losses suffered by the Buyer and its affiliates as a result of (i) any
misstatement in, or omission from, any Sponsor Information or (ii) any breach
by the MCA Companies of any representation or warranty set forth in Section
7(a) hereof.
The Buyer shall indemnify and hold the MCA Companies and its
affiliates harmless from any losses suffered by the MCA Companies as a result
of (i) any misstatement in, or omission from any Buyer Information or (ii) any
breach by the Buyer of any representation or warranty set forth in Section 7(b)
hereof. "Buyer Information" means any information in any Offering Document
other than Sponsor Information.
(d) Each MCA Company agrees to cooperate reasonably and in
good faith with the Buyer, its attorneys and accountants, Credit Enhancers,
Underwriters and Rating Agencies in connection with the establishment of each
Advanta Trust.
(e) The Buyer acknowledges to the MCA Companies that it is
the Buyer's present intent to sponsor Advanta Trusts quarterly; the Buyer shall
advise the MCA Companies of any change in such intent as soon as possible.
Section 6. Defective Mortgage Files; Repurchase of Mortgage
Loans. (a) If the MCA Companies are informed by the Trustee, the Master
Servicer or the Buyer that any document constituting a part of a Mortgage File
has not been executed or received or is unrelated to the Mortgage Loans
identified in the related Mortgage Loan Schedule, the MCA Companies shall have
a period of 15 days after such notice within which to correct or cure any such
defect.
(b) If the Trustee, the Master Servicer or the Buyer has
notified the MCA Companies of a defect in a Mortgage File and the defect
remains uncured to the satisfaction of the Buyer and, in the opinion of the
Buyer, such defect materially and adversely affects
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the value, collectibility or marketability of the related Mortgage Loan, the
MCA Companies shall, not later than 30 days after receipt of notice of such
defect, and provided that such defect has not been cured to the Buyer's
reasonable satisfaction, repurchase the related Mortgage Loan (including any
property acquired in respect thereof and any insurance policy or insurance
proceeds with respect thereto) at a price equal to the Repurchase Price, which
shall be accomplished by delivery of such amount by the MCA Companies to the
Buyer.
Upon receipt by the Buyer of the Repurchase Price for a
Defective Mortgage Loan, the Buyer shall cause the Conduit Acquisition Trust to
execute and deliver such instrument of transfer or assignment presented to it
by the MCA Companies, in each case without recourse, as shall be necessary to
vest in the MCA Companies legal and beneficial ownership of such repurchased
Defective Mortgage Loan (including any property acquired in respect thereof or
insurance policy or insurance proceeds with respect thereto).
(c) In the event that the MCA Companies fail, within the time
periods specified in this Agreement, to cure any material defect in a Mortgage
File, the Buyer, in addition to any rights it may have under paragraph (b)
above, shall have the right thereafter to receive any Residual Excess Servicing
otherwise payable to the MCA Companies, to the extent of any loss suffered by
the Buyer.
(d) The remedies described in paragraphs (b) and (c) above,
together with all other remedies the Buyer may have at law or in equity, shall
survive any resignation or termination of Advanta Mortgage Corp. USA as Master
Servicer.
Section 7. Representations and Warranties Regarding the MCA
Companies, the Buyer and the Master Servicer. (a) Each MCA Company hereby
represents and warrants to the Buyer, the Master Servicer and their respective
successors and assigns that, as of the date hereof:
(i) Each MCA Company is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Michigan and has all licenses and qualifications
necessary to carry on its business as now being conducted and to
perform its obligations hereunder; each MCA Company 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 each MCA Company 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 any MCA Companies,
contravene or violate any law or regulation applicable to any MCA
Companies 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 any MCA Companies
pursuant to the provisions of, any mortgage, indenture, contract,
agreement or other undertaking to which any MCA Companies 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 each MCA Company enforceable against each MCA
Company 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,
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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
MCA Companies 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 MCA Companies and the performance by the MCA
Companies of their respective obligations under this Agreement;
(iii) There is no action, suit, proceeding or
investigation pending or, to the best of the MCA Companies'
knowledge, threatened against any MCA Company 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 any MCA Company or in any material
impairment of the right or ability of any MCA Company to carry on
its business substantially as now conducted, or in any material
liability on the part of any MCA Company or which would draw into
question the validity of this Agreement or the Mortgage Loans or
of any action taken or to be taken in connection with the
obligations of any MCA Company contemplated herein, or which
would be likely to impair the ability of any MCA Company to
perform under the terms of this Agreement;
(iv) Each MCA Company is not in default with
respect to any mortgage, indenture, contract, agreement or other
undertaking to which such MCA Company is a party or which
purports to be binding upon Sponsor or any of Sponsor's assets,
or 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 default might have consequences that
would materially and adversely affect the condition (financial or
other) or operations of any MCA Company or its properties or
might have consequences that would adversely affect its
performance hereunder;
(v) The transfer, assignment and conveyance of
the Mortgage Loans by the MCA Companies pursuant to this
Agreement are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction;
(vi) All information supplied by the MCA
Companies to the Buyer, the Master Servicer or the Trustee is
true and correct in all material respects, and does not omit to
state a material fact necessary to make the statements set forth
in such information not misleading; and
(vii) The MCA Companies have a consolidated
tangible net worth as determined in accordance with generally
accepted accounting principles of at least $16 million.
The representations and warranties set forth in this paragraph (a) shall
survive the sale and assignment of the Mortgage Loans by the MCA Companies
hereunder. Upon discovery of a material breach of any of the foregoing
representations and warranties, the Buyer or the Master Servicer shall give
prompt written notice to the MCA Companies. Within 30 days of
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the earlier of its discovery or its receipt of notice of breach, the MCA
Companies shall cure such breach to the satisfaction of the Buyer.
(b) The Buyer hereby represents and warrants to the MCA
Companies and the Master Servicer that, as of the date hereof:
(i) The Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware; the Buyer 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 executed by the Buyer on behalf of the
Conduit Acquisition Trust and any other instruments of transfer to be
delivered pursuant to this Agreement) by the Buyer 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 Buyer, contravene or violate
any law or regulation applicable to the Buyer 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
Buyer pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking to which the Buyer is a party
or which purports to be binding upon Buyer or any of Buyer's assets;
this Agreement evidences the valid and binding obligation of the Buyer
enforceable against the Buyer 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 Buyer 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 Buyer
and the performance by the Buyer of its obligations under this
Agreement;
(iii) There is no action, suit, proceeding or
investigation pending or, to the best of the Buyer's knowledge,
threatened against the Buyer 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
Buyer or in any material impairment of the right or ability of the
Buyer to carry on its business substantially as now conducted, or in
any material liability on the part of the Buyer 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 Buyer
contemplated herein, or which would be likely to impair the ability of
the Buyer to perform under the terms of this Agreement; and
(iv) The Buyer is not in default with respect to
any mortgage, indenture, contract, agreement or other undertaking
to which the Buyer is a party or which purports to be binding upon
Buyer or any of Buyer's assets, or with
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respect to any order or decree of any court or any order, regulation
or demand of any federal, state, municipal or governmental agency,
which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations
of the Buyer or its properties or might have consequences that would
adversely affect its performance hereunder.
The representations and warranties set forth in this paragraph (b) shall
survive the sale and assignment of the Mortgage Loans by the MCA Companies
hereunder. Upon discovery of a breach of any of the foregoing representations
and warranties which materially and adversely affects the interests of the MCA
Companies, the MCA Companies shall give prompt written notice to the Buyer.
Within 30 days of its discovery or its receipt of notice of breach, the Buyer
shall cure such breach in all material respects.
(c) The Master Servicer hereby represents and
warrants to the Buyer and the MCA Companies that, as of the date hereof:
(i) The Master Servicer 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 Master Servicer 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 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
Master Servicer, contravene or violate any law or regulation
applicable to the Master Servicer 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 Master
Servicer pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking to which the Master Servicer
is a party or which purports to be binding upon Master Servicer or any
of Master Servicer's assets; this Agreement evidences the valid and
binding obligation of the Master Servicer enforceable against the
Master Servicer 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 Master Servicer 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 Master
Servicer and the performance by the Master Servicer of its obligations
under this Agreement;
(iii) There is no action, suit, proceeding or
investigation pending or, to the best of the Master Servicer's
knowledge, threatened against the Master Servicer 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
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Master Servicer or in any material impairment of the right or ability
of the Master Servicer to carry on its business substantially
as now conducted, or in any material liability on the part of the
Master Servicer 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 Master Servicer contemplated herein, or which would
be likely to impair the ability of the Master Servicer to perform
under the terms of this Agreement; and
(iv) The Master Servicer is not in default with
respect to any mortgage, indenture, contract, agreement or other
undertaking to which the Master Servicer is a party or which
purports to be binding upon Master Servicer or any of Master
Servicer's assets, or 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 default might have consequences that would
materially and adversely affect the condition (financial or other) or
operations of the Master Servicer or its properties or might have
consequences that would adversely affect its performance hereunder.
The representations and warranties set forth in this paragraph (c) shall
survive the sale and assignment of the Mortgage Loans by the MCA Companies
hereunder. Upon discovery of a breach of any of the foregoing representations
and warranties which materially and adversely affects the interests of the MCA
Companies, the MCA Companies shall give prompt written notice to the Master
Servicer. Within 30 days of its discovery or its receipt of notice of breach,
the Master Servicer shall cure such breach in all material respects.
Section 8. Representations and Warranties of the MCA Companies
Regarding the Mortgage Loans. (a) Set forth in Exhibit F hereto is a listing
of representations and warranties which will be deemed to have been made by the
MCA Companies to the Buyer, the Master Servicer and the Trustee in connection
with each purchase of a Pool with respect to the Mortgage Loans in such Pool.
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
Exhibit F hereto, together with any Additional Representations and Warranties,
are the "Representations and Warranties".
It is understood and agreed that the Representations and Warranties shall
survive the sale and assignment of the Mortgage Loans to the Conduit
Acquisition Trust and by the Conduit Acquisition Trust to an Advanta Trust.
Upon discovery by any MCA Company, the Master Servicer or the Buyer 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 any
MCA Company as to the facts stated therein so long as the Buyer is required to
repurchase the related Mortgage Loan or Mortgage Loans pursuant to the related
Advanta Pooling Agreement without regard to any similar limitation), which
breach, in the opinion of the Buyer, materially and adversely affects the
value, collectibility or marketability of the related Mortgage Loan or Mortgage
Loans, the party discovering such breach shall give prompt written notice to
the other party and the MCA Companies shall be required to take the remedial
actions required by Section 8(c) hereof within the time periods required
pursuant thereto.
(b) Within 30 days of the earlier of its discovery or its
receipt of notice of breach, the MCA Companies shall use all reasonable efforts
to cure such breach to the reasonable satisfaction of the Buyer. Unless, prior
to the expiration of such 30 day period, such breach has been cured or
otherwise does not exist or continue to exist, the MCA Companies shall
repurchase such Mortgage Loan (or, in the case of a Representation and
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Warranty of the nature specified in clauses (xx) and (xli), repurchase Mortgage
Loans such that, after giving effect to such repurchase, the related
Representation and Warranty would be complied with) (including any property
acquired in respect thereof and any insurance policy or insurance proceeds with
respect thereto) in the same manner and subject to the same conditions as set
forth in Section 6 hereof. Upon making any such repurchase, the MCA Companies
shall be entitled to receive an instrument of assignment or transfer from the
Trustee, without recourse to the Buyer or the Trustee, to the same extent as
set forth in Section 6 hereof with respect to the repurchase of Defective
Mortgage Loans under that Section.
(c) In the event that the MCA Companies fail, within the time
periods specified in this Agreement, to cure any material breach of a
Representation and Warranty, the Buyer shall have the right thereafter to
receive any Residual Excess Servicing otherwise payable to the MCA Companies,
to the extent of any loss suffered by the Buyer.
(d) The remedies described in paragraphs (b) and (c) above,
together with all other remedies the Buyer may have at law or in equity, shall
survive any resignation or termination of Advanta Mortgage Corp. USA as Master
Servicer.
Section 9. Application of Residual Excess Servicing. (a) All
available Excess Servicing with respect to the Accumulation Pool shall be
applied as a Reserve Deposit or to the amount payable by the MCA Companies
described in the last paragraph in Section 4(a) hereof.
(b) At the time any Pools are transferred from the
Accumulation Pool to an Advanta Trust (thereby becoming all or part of a
Securitized Loan Pool) the Reserve Amount then relating to such Pool shall be
credited against the initial Reserve Amount for the related Securitized Loan
Pool. If the initial Reserve Amount exceeds the initial Required Reserve Amount
applicable to such Securitized Loan Pool (i.e., the amount of any "initial
deposit" at securitization) the amount of such excess shall be paid by the
Buyer to the MCA Companies. Conversely, if the initial Required Reserve Amount
for such Securitized Loan Pool exceeds the actual Reserve Amount for the
related Pools the amount of such shortfall shall be paid by the MCA Companies
to the Buyer as an additional initial Reserve Amount for such Securitized Loan
Pool.
(c) Any Residual Excess Servicing relating to a Securitized
Loan Pool shall be paid by the Buyer to the Sponsor within five Business Days
of each Distribution Date, subject to offset for any amounts due to the Buyer
or to the Master Servicer from the MCA Companies, as provided herein.
(d) The Buyer's obligation to pay the Residual Excess
Servicing amounts to the Sponsor will be evidenced by the Synthetic Residual
Certificate in the form of Exhibit I hereto, which evidences a secured
corporate obligation of the Buyer, and will not represent any direct ownership
interest in any Mortgage Loans.
(e) The Master Servicer shall furnish the statements
described in Section 10 hereto to the Sub-Servicer, by facsimile on each
Distribution Date; such statements shall, inter alia, contain information
relating to the Residual Excess Servicing for such Distribution Date.
The Buyer and the Master Servicer shall permit the inspection, on
reasonable notice, by any MCA Company or their respective designees of all of
the Buyer's and the Master Servicer's books and records relating to the
Mortgage Loans and the Residual Excess
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Servicing. All calculations made by the Buyer or the Master Servicer shall be
conclusive in the absence of manifest error.
Section 10. Distribution Date Statement. A. The Master Servicer
shall, not later than each Distribution Date, furnish in writing to the MCA
Companies and the Buyer a statement setting forth the following information
with respect to the Accumulation Pool and each Securitized Loan Pool:
(i) the total amount of payments in respect of or allocable
to interest on the Mortgage Loans received or deemed to have been
received from the related Mortgagors by the Master Servicer during the
prior calendar month (including any net income from REO Properties
received during the prior calendar month);
(ii) the aggregate of all Principal Payments and Principal
Prepayments received or deemed to have been received from the related
Mortgagors by the Master Servicer during the prior calendar month;
(iii) the total amount of recoveries of delinquent principal
and interest payments received during the prior calendar month;
(iv) the total amount of prepayment penalties received
during the prior calendar month;
(v) the aggregate of any Net Insurance Proceeds received by
the Master Servicer during the prior calendar month;
(vi) the aggregate of any Net Liquidation Proceeds received
by the Master Servicer during the prior calendar month;
(vii) the total amount of Compensating Interest payments to
be paid by the Master Servicer for such Distribution Date;
(viii) the aggregate Repurchase Prices for any Mortgage Loans
which the MCA Companies are required to repurchase on or prior to such
Distribution Date pursuant to Sections 5(b), 5(c), 6(b) or 8(c) hereof;
(ix) the aggregate amount of Advances made by the Master
Servicer during or with respect to the prior calendar month;
(X) the related monthly Servicing Fee;
(xi) the aggregate amount of Advances reimbursable to the
Master Servicer for such Distribution Date and not previously reimbursed;
(xii) the weighted average Mortgage Loan Rate as of the last
day of the prior calendar month (separately for ARMs and Fixed Rate
Loans);
(xiii) the related Reserve Amount, Required Reserve Amount and
Residual Excess Servicing as of such Distribution Date; and
(xiv) the book value of any REO Properties as of the last day
of the prior calendar month.
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(b) In addition, on each Distribution Date the Master Servicer
will furnish by telecopy to the Buyer and the Sub-Servicer, the following
information with respect to the Mortgage Loans in the Accumulation Pool and
each Securitized Loan Pool as of the last day of the related prior calendar
month:
(i) the total number of Mortgage Loans and the aggregate
Principal Balances thereof, together with the number, aggregate principal
balances of such Mortgage Loans and the percentage of the aggregate
Principal Balances of such Mortgage Loans to the aggregate Principal
Balance of all Mortgage Loans (a) 30-59 delinquent, (b) 60-89 days
delinquent and (c) 90 or more days delinquent;
(ii) the number, aggregate Principal Balances of all Mortgage
Loans and percentage of the aggregate Principal Balances of such Mortgage
Loans to the aggregate Principal Balance of all Mortgage Loans in
foreclosure proceedings (and whether any such Mortgage Loans are also
included in any of the statistics described in the foregoing clause (i));
(iii) the number, aggregate Principal Balances of all Mortgage
Loans and percentage of the aggregate Principal Balances of such Mortgage
Loans to the aggregate Principal Balance of all Mortgage Loans relating
to Mortgagors in bankruptcy proceedings (and whether any such Mortgage
Loans are also included in any of the statistics described in the
foregoing clause (i)); and
(iv) the number, aggregate Principal Balances of all Mortgage
Loans and percentage of the aggregate Principal Balances of such Mortgage
Loans to the aggregate Principal Balance of all Mortgage Loans relating
to REO Properties (and whether any such Mortgage Loans are also included
in any of the statistics described in the foregoing clause (i)).
Section 11. Merger or Consolidation of MCA. Any corporation or
other entity (i) into which any MCA Company may be merged or consolidated, (ii)
which may result from any merger, conversion or consolidation to which any MCA
Company shall be a party, or (iii) which may succeed to all or substantially
all of the business of any MCA Company , which corporation or other entity
shall, in any case where an assumption shall not be effected by operation of
law, execute an agreement of assumption to perform every obligation of any MCA
Company under this Agreement, shall be the successor to any MCA Company
hereunder without the execution or filing of any document or any further act by
any of the parties to this Agreement, except that if any MCA Company in any of
the foregoing cases is not the surviving entity, then the surviving entity
shall execute and deliver to the Buyer, the Master Servicer and to the Trustee
an agreement of assumption to perform every obligation of such MCA Company
hereunder.
Section 12. Servicing. A. The Master Servicer shall service all
Mortgage Loans sold by the Seller hereby on a fully servicing-released basis,
applying the standards and requirements for servicing as described in the
Buyer's Registration Statement relating to the Buyer's mortgage loan
securitization program. Such servicing standards and requirements shall
include (i) the making of Advances, (ii) the payment of Compensating Interest
and (iii) the disposition of REO Properties within 24 months of the taking of
title. The Master Servicer also agrees to implement an industry recognized
gain/loss standard at the commencement of foreclosure proceedings and use a
standard recoverability standard with respect to the making of Advances. As
described in the Master Commitment, the parties may hereafter provide for the
retention by the MCA Companies rights, of all or any portion of the servicing
rights, duties, and obligations on a prospective basis.
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25
(b) The Servicing Fees shall be as set forth in the Loan Servicing
Agreement among the Master Servicer, the Sponsor and MCA Mortgage Corporation.
(c) The Master Servicer hereby represents and warrants to, and
covenants with, the MCA Companies that the Master Servicer will service the
Mortgage Loans without distinction as to the identity of the MCA Companies as
the residual, first-loss holder of the Mortgage Loans, and on the same terms by
which the Master Servicer services mortgage loans for which it or its
affiliates are the residual, first-loss holder.
(d) The Master Servicer may retain sub-servicers to perform all or
a part of its servicing duties hereunder, without the consent of or notice to
the MCA Companies, except that no retention of any sub-servicer shall release
the Master Servicer from any liability to the MCA Companies.
(e) The Master Servicer shall enter into a sub-servicing agreement
with Mortgage Corporation of America within a reasonable time after the
effectiveness of this Agreement.
Section 13. Authorized Representatives. The names of the officers
of each MCA Company, the Master Servicer and of the Buyer 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 each MCA Company,
the Master Servicer and of the Buyer (the "Authorized Representatives") are set
forth on Exhibit D, along with the specimen signature of each such officer.
From time to time, each MCA Company, the Master Servicer or the Buyer may, by
delivering to the others a revised exhibit, change the information previously
given.
Section 14. 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 one of the Authorized Representatives of 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 MCA Companies:
MCA Financial Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Seller:
MCA Financial Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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26
with a copy to:
Mortgage Corporation of America
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Buyer:
Advanta Mortgage Conduit Services, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Servicing
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Master Servicer:
Advanta Mortgage Corp. USA
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
The parties may, from time to time hereafter, by written notice,
change addresses listed above.
Section 15. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of California, without
regard to conflict of laws rules applied in the State of California.
Section 16. 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 17. 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 18. Amendment. This Agreement may be amended from time to
time by the MCA Companies, the Buyer and the Master Servicer only by a written
instrument executed by such parties.
Section 19. 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.
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27
Section 20. No Agency; No Partnership or Joint Venture. None of
MCA Companies, the Master Servicer nor the Buyer is the agent or representative
of one or both of the others, and nothing in this Agreement shall be construed
to make any of the MCA Companies, the Master Servicer or the Buyer 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 Buyer, the Master Servicer and the MCA Companies.
Section 21. Arbitration. Any dispute or disagreement under this
Agreement shall be rendered by submitting such dispute or disagreement to an
independent, mutually agreed upon arbitrator. The arbitrator shall conduct the
arbitration in accordance with the Rules of the American Arbitration
Association. If the parties are unable to select an arbitrator, the arbitrator
shall be selected in accordance with the procedures of the American Arbitration
Association. The decision of the arbitrator shall be final and binding upon
the parties and non-appealable. Any decision and award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. Any
arbitration pursuant to this Agreement shall be conducted in Manhattan.
Section 22. Confidentiality. No party hereto shall disclose to
third parties, without the prior consent of the other parties, in writing, the
existence of or the terms of this Agreement, except to its accountants and
attorneys or as required by law.
Section 23. Further Assurances. The parties hereto agree to
cooperate reasonably and in good faith with one another in the performance of
this Agreement.
Section 24. Legal Costs. The parties hereto agree that in the
event of arbitration or litigation between them, the non-prevailing party shall
reimburse the prevailing party for all related legal fees and expenses of
counsel incurred by the prevailing party. The prevailing party shall be the
party in whose favor a final decision or judgment is entered, after the
conclusion of any appeals or after the time during which an appeal may be taken
shall have run. Payment of sums owning under this Section 24 shall be made
within ten (10) days following the date that the right to receive payment shall
be final.
Section 25. Term. The buy-sell provisions of this Agreement shall
terminate on the Commitment Termination Date, as defined in the Master
Commitment; the other obligations of the parties set forth herein shall
continue in full force and effect until the payment in full (or other
liquidation) of the Mortgage Loans.
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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.
MCA FINANCIAL CORP.,
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President
MORTGAGE CORPORATION OF AMERICA,
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President
MCA MORTGAGE CORPORATION,
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: President
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
as Buyer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ADVANTA MORTGAGE CORP. USA,
as a Buyer and as Master Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
29
EXHIBIT A
FORM OF CONVEYANCE AGREEMENT
MCA Financial Corp., MCA Mortgage Corporation and Mortgage
Corporation of America (the "Seller") and Conduit Acquisition Trust, as
purchaser (the "Buyer"), pursuant to the Securitization Access Agreement dated
as of November 1, 1996 among the MCA Companies, Advanta Mortgage Conduit
Services, Inc. and Advanta Mortgage Corp. USA (the "Securitization Access
Agreement"), hereby confirm their understanding with respect to the sale by the
Seller and the purchase by the Buyer of those Mortgage Loans listed on the
attached Mortgage Loan Schedule (the "Purchased Mortgage Loans").
Conveyance of Purchased Mortgage Loans. The Seller, concurrently
with the execution and delivery of this Conveyance Agreement, does hereby
irrevocably transfer, assign, set over and otherwise convey to the Buyer,
without recourse (except as otherwise explicitly provided for herein) all of
its right, title and interest in and to the Purchased Mortgage Loans, including
specifically, without limitation, the Mortgages, the Mortgage Files and all
other documents, materials and properties appurtenant thereto and the Mortgage
Notes, including all interest accruing thereon and principal received on or
with respect to such Purchased Mortgage Loans on or after the related Cut-Off
Date and all interest accruing thereon since the related Mortgagor's most
recent paid-to date (or date of origination if no payment is yet due), 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 on behalf of
the Buyer. If the Seller 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, the Seller shall promptly deliver to the
Buyer's designee on behalf of the Buyer such original Mortgage or mortgage
assignment with evidence of recording indicated thereon upon receipt thereof
from the public recording official, with a copy thereof delivered to the Master
Servicer.
The costs relating to the delivery of the documents specified in
this Conveyance Agreement shall be borne by the MCA Companies.
The MCA Companies hereby additionally certifies to the Buyer:
(i) The representations and warranties of the MCA Companies contained
in the Securitization Access Agreement and all related agreements,
as of the date hereof, are true and correct, and the MCA Companies
have complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
the date hereof in connection with the sale of the Purchased
Mortgage Loans.
(ii) There are no actions, suits or proceedings pending or threatened
against or affecting any MCA Company which if adversely determined,
individually or in the aggregate, would be reasonably likely to
adversely affect in any material way any MCA Company's obligations
under any agreement to which any MCA Company is a party. No
merger, liquidation, dissolution or bankruptcy of any MCA Company
is pending or contemplated.
A-1
30
(iii) No material adverse change in the condition, financial or
otherwise, or properties of the Sponsor has occurred since the date
of the Securitization Access Agreement.
All terms and conditions of the Securitization Access 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 Securitization Access Agreement.
Terms capitalized herein and not defined herein shall have their
respective meanings as set forth in the Securitization Access Agreement.
A-2
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers, all as of the _____ day of
_______________.
MCA FINANCIAL CORP.,
By:____________________________
Title:_________________________
MORTGAGE CORPORATION OF AMERICA
By:_____________________________
Title:__________________________
MCA MORTGAGE CORPORATION
By:______________________________
Title:___________________________
CONDUIT ACQUISITION TRUST,
By:_____________________________
Title:__________________________
Attachments
A. Schedule of Purchased Mortgage Loans.
B. Trustee's initial exception report.
C. Sponsor's officer's certificate.
D. Closing Statement and Recap Summary.
▇-▇
▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and Funding Recap Summary
MCA
Pool: ____
Date Prepared:
Sale Cut-Off Date: (Close of Business)
Sale Funding Date:
Pricing Date:
----------------------------------------------------------------------
Buyer: Advanta Mortgage Conduit
Services, Inc. on behalf
Seller: of Conduit Acquisition
Trust _________________
----------------------------------------------------------------------
Originator: _________________
Servicer: Advanta Mortgage Corp. USA
Scheduled Servicing Transfer Date:
Broker Number:
----------------------------------------------------------------------
Fixed Pool Identification Number:
ARM Pool Identification Number:
Investor Number:
Number of Loans:
----------------------------------------------------------------------
Fixed Pool Balance:
ARM Pool Balance:
Total Pool Balance:
----------------------------------------------------------------------
----------------------------------------------------------------------
Total Pool Balance
----------------------------------------------------------------------
Accrued interest from Cut-Off Date to Closing
Initial Applicable Rate ___%
----------------------------------------------------------------------
Premium in Dollars
% of Scheduled Prin. Bal.: 0.00000%
----------------------------------------------------------------------
Transaction/Initial Fees Expense:
Transaction Expense Share:
Placement Fee:
----------------------------------------------------------------------
Initial Reserve Amount:
Initial Reserve Amt. (Fixed)
Initial Reserve Amt. (ARM)
----------------------------------------------------------------------
Recordation Fees:
----------------------------------------------------------------------
Net Due Seller/Funding Transfer Amt.
----------------------------------------------------------------------
A-4
33
EXHIBIT B
CONTENTS OF MORTGAGE FILE
1. Collateral File
(a) the original Note endorsed by the MCA Companies as follows: For value
received, pay to the order of "Bankers Trust Company of California, N.A.
as Custodian or Trustee", without recourse with all intervening
endorsements showing a complete chain of title from the original lender
to the MCA Companies;
(b) the original Mortgage or Deed of Trust, with evidence of recording
thereon, or, until the original Mortgage or Deed of Trust has been
received from the applicable public recording office, a copy of the
Mortgage or Deed of Trust certified by Sponsor to be a true and complete
copy of the original Mortgage or Deed of Trust submitted for recording;
(c) the Note riders signed as required;
(d) a copy of the original unrecorded assignment of the Mortgage or Deed of
Trust from Sponsor to "Bankers Trust Company of California, N.A. as
Custodian or Trustee";
(e) documentation of all intervening mortgage assignments with evidence of
recording thereon, sufficient to show a complete chain of assignment
from the originator of the Mortgage Loan to the MCA Companies;
(f) any and all assumption, modification, written assurance or substitution
agreements, where the terms or provisions of a Mortgage or Note have
been modified or such Mortgage or Note have been assumed;
(g) the title insurance policy and preliminary policy, including all
endorsements and/or riders, or until an original policy is received, a
binding commitment to issue such a policy, which contains a legal
description of the Mortgaged Property and which has been signed on the
origination date by an authorized agent of the title insurer;
2. Servicing File (using the Advanta Stacking Order as of July 1, 1995)
--------------
(a) any primary credit insurance policy or certificate of insurance;
(b) all required hazard and flood insurance policies with respect to the
Mortgage Property;
(c) (the tax service contract, where applicable;
(d) any Private Mortgage Insurance Certificate;
(e) any guaranty(s), surety agreement(s), and/or survey(s);
(f) any appraisals on the Mortgaged Property;
(g) the completed loan application signed by the Mortgagor;
(h) the signed mortgage loan settlement sheet;
B-1
34
(i) all employment, deposit and mortgage verifications, credit reports and
reports and any other document relied upon in making the Mortgage Loan;
(j) any Truth-In-Lending RESPA and ECOA related documents required by law;
(k) all records, ledger cards and other documents relating to the Mortgage
Loan;
(l) LIW Loan information worksheet;
(m) Copies of all applicable transfer notifications i.e. borrower insurance,
flood, hazard, PMI
(n) the original unrecorded assignment of the Mortgage or Deed of Trust from
Sponsor to Bankers Trust Company of California, N.A, as Custodian or
Trustee.
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EXHIBIT C
FORM OF MORTGAGE LOAN SCHEDULE
C-1
36
EXHIBIT D
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Securitization Access Agreement, dated as of
November 1, 1996 (the "Agreement"), among MCA Financial Corp., MCA
Mortgage Corporation and Mortgage Corporation of America (collectively, the
"MCA Companies"), Advanta Mortgage Conduit Services, Inc. and Advanta Mortgage
Corp. USA:
The following are the MCA Companies' Authorized Representatives for
purposes of the Agreement:
Name Title Specimen Signature
The following are the Buyer's Authorized Representatives for purposes of the
Agreement:
Name Title Specimen Signature
The following are the Master Servicer's Authorized Representatives for
purposes of the Agreement:
Name Title Specimen Signature
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
D-1
37
EXHIBIT E
Applicable Guidelines
(a) Each Mortgage Loan is secured by a closed-end
mortgage, in first or second lien position, to A to D credit borrowers (as
defined by Fitch Investors Service), on single family 1-4 unit properties;
(b) No less than 50% of any Pool will have been
originated with A and B credit grades;
(c) No ARM Pool will be more than 2% teased at
origination calculated on a weighted average basis;
(d) Each ARM is in a first lien position;
(e) Each ARM's interest rate will be tied to either
6 month LIBOR or 1 year CMT;
(f) Each ARM will have a 2% periodic (per annum) and a
minimum lifetime cap of 6%;
(g) No more than 25% of any Pool will consist of 2 year
fixed/1 year adjustable, 3/1 or 5/1 intermediate mortgages (Treasury based
index); and
(h) No Mortgage Loan is a simple interest loan.
(i) No more than 10% of any Pool will consist of loans
with CLTVs in excess of 90% (without mortgage insurance from a carrier
acceptable to the Master Servicer).
(j) No less than 70% of each Pool will have been
originated under a full documentation program.
(k) No loan is more than 30 days contractually delinquent
as of the securitization cut-off date.
E-1
38
EXHIBIT F
REPRESENTATION AND WARRANTIES
(i) The information with respect to each Mortgage Loan set
forth in the related Mortgage Loan Schedule is true and correct as of the Cut-
Off Date.
(ii) All of the original or certified documentation required to
be delivered to the Buyer, the Master Servicer or the Buyer's designee pursuant
to the [Operational Procedures Requirements as set forth on Exhibit G] with
respect to each Mortgage Loan has been or will be delivered to the Buyer, the
Master Servicer or the Buyer's designee, as required thereby. Each Mortgage
Loan is documented on a note and mortgage form, with appropriate riders
approved by Buyer.
(iii) Each Mortgage is a valid and existing first or second lien
of record on the Mortgaged Property, (subject in the case of any Second
Mortgage Loan only to a Senior Lien on such Mortgaged Property) and subject in
all cases to the exceptions to title set forth in the title insurance policy,
if any, 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 materially and adversely
affect the benefits of the security intended to be provided by such Mortgage.
(iv) Immediately prior to the transfer and assignment herein
contemplated, the related MCA Company held good, marketable, and indefeasible
title to, and was the sole owner of, each Mortgage Loan conveyed by such
related MCA Company subject to no liens, charges, mortgages, encumbrances or
rights of others except as set forth in clause (iii) or other liens which will
be released simultaneously with such transfer and assignment and upon receipt
of each Mortgage Loan, the Buyer will hold good, marketable, and indefeasible
title to, and will be the sole owner of each Mortgage Loan, free and clear of
any liens, charges, mortgages, encumbrances, or rights of others except as set
forth in paragraph (iii) or any liens created by the Buyer.
(v) As of the related Cut-Off Date, no Mortgage Loan is thirty
(30) or more days contractually delinquent, and no Mortgage Loan has been
thirty (30) or more days contractually delinquent more than once during the
twelve (12) months preceding the related Cut-Off Date, except for those loans
Buyer reviews during due diligence and agrees to purchase with knowledge of
delinquency; there is no valid and enforceable 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. Except for any such
delinquencies, 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 cure period, would
constitute a default, breach, violation or event of acceleration; the Seller
has not waived any default breach, violation or event of acceleration.
(vi) There is no delinquent tax or assessment lien or mechanic's
lien, or claim for work, labor, or material on any Mortgaged Property; there is
no proceeding pending or threatened or currently occurring for the total or
partial condemnation of any Mortgaged Property to the best of Seller's
knowledge; each Mortgaged Property is free of substantial damage and is in good
repair, except for those items specifically mentioned in the appraisal, or any
applicable appraisal review of any mortgaged property.
F-1
39
(vii) Each Mortgage Loan at the time it was made, and the
origination of such Mortgage Loan, complied in all material respects with all
applicable local, state and federal laws and regulations, including, without
limitation, the federal Truth-in-Lending Act, the Real Estate Settlement
Procedures Act, and other consumer protection laws, usury, equal credit
opportunity, disclosure and recording laws. Any Mortgage Loan, and the
origination thereof, which is subject to the "high cost or high fee mortgage"
provisions of the Home Ownership and Equity Protection Act of 1994, complies
with the requirements of such Act. No fraud was committed, nor was any
material misrepresentation made, by any Person, including without limitation
the related Mortgagor, in connection with the origination of such Mortgage
Loan; each Mortgage Loan is a Qualified Mortgage and is a Qualifying Loan.
(viii) With respect to each Mortgage Loan, a lender's title
insurance policy, issued in standard American Land Title Association or
California Land Title Association form by a title insurance company authorized
to transact business in the state in which the related Mortgaged Property is
situated, in an amount at least equal to the Original Principal Amount of such
Mortgage Loan insuring the mortgagee's interest under the related MortGage Loan
as the holder of a valid first or second mortgage lien of record on the real
property described in the related Mortgage, as the case may be, subject only to
exceptions of the character referred to in paragraph (iii) 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 for the benefit of the Buyer and its assignees, in care
of the Master Servicer.
(ix) Each Mortgaged Property is improved by a single
(one-to-four) family residential dwelling, which may include condominiums and
townhouses but shall not include cooperatives; the improvements upon each
Mortgaged Property are covered by a valid and existing hazard insurance policy
with a generally acceptable carrier that provides for fire and extended
coverage representing coverage not less than the least of (A) the outstanding
principal balance of the related Mortgage Loan Together, in the case of a
Second Mortgage Loan, with the outstanding principal balance of any Senior
Liens), (B) the minimum amount required to compensate for damage or loss on a
replacement cost basis or (C) the full insurable value of the Mortgaged
Property.
(x) For all Mortgage Loans, there is in place a fully-paid life
of loan flood certification from Pinnacle Data Corporation or another vendor
approved by the Buyer, assigned in care of the Master Servicer, which provides
for notification to the Master Servicer of changes in designated flood areas
which would affect such Mortgage Loan; in addition, if any Mortgaged Property,
as of the Cut-Off Date of the related Mortgage Loan, is in an area identified
in the Federal Register by the Federal Emergency Management Agency as having
special flood hazards, a flood insurance policy in a form meeting the
requirements of the current guidelines of the Federal Insurance Administration
is in effect for the benefit of the Buyer and its assignees, in care of the
Master Servicer, with respect to such Mortgaged Property with a generally
acceptable carrier in an amount representing coverage not less than the least
of (A) the outstanding principal balance of the related Mortgage Loan
(together, in the case of a Second Mortgage Loan, with the outstanding
principal balance of any Senior Liens), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the maximum
amount of insurance that is available under the Flood Disaster Protection Act
of 1973.
(xi) 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
F-2
40
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). The maker of such Mortgage and Note had the legal capacity
to execute such Mortgage and Note at the time such Mortgage and Note were
executed.
(xii) MCA has caused and will cause to be performed any and all
acts required to be performed to preserve the rights end remedies of the Master
Servicer in any Insurance Policies applicable to any Mortgage Loans delivered
by any Seller, including any necessary notifications of insurers, assignments
of policies or interests therein, and establishments of co-insured, joint loss
payee and mortgagee rights in favor of the Buyer and its assignees in care of
the Master Servicer.
(xiii) Interest on each Note is calculated in accordance with the
actuarial method; 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 Buyer and
which has been included in the related Funding Package to be delivered to the
Buyer. The substance of any such alteration or modification is reflected on
the related Mortgage Loan Schedule and has been approved by the primary
mortgage guaranty insurer, if any.
(xiv) Except as otherwise required by law or pursuant to the
statute under which the related Mortgage Loan was made, the related Note will
not be secured by any collateral, pledged account or other security except the
lien of the corresponding Mortgage.
(xv) No Mortgage Loan will be originated under a buydown plan:
no Mortgage Loan provides for negative amortization, has a shared appreciation
feature, or other contingent interest feature; and as of the related Cut-Off
Date, no Mortgage Loan had a Combined Loan-to-Value-Ratio or a Total
Loan-to-Value Ratio in excess of the maximum for the related product type as
set forth in the Applicable Guidelines, unless Buyer acknowledges any such
exception(s) through its due diligence, and agrees to purchase the Mortgage
Loan based on the exception(s).
(xvi) 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 related Mortgage Loan Schedule. No Note has
been modified, except as reflected on the related Mortgage Loan Schedule, and
evidence of any modification is in the related Funding Package and has been
supplied to the Buyer. The consolidated principal amount does not exceed the
original principal amount of the related Mortgage Loan. No Note permits or
obligates the Master Servicer, any sub-servicer or the Buyer or its assignees
to make future advances to the related Mortgagor at the option of the
Mortgagor.
(xvii) 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, subject to any escrow hold-back for improvements pending
completion. All costs, fees and expenses incurred in making, closing or
recording the Mortgage Loans were paid.
(xviii) To the best of Seller's knowledge, all of the improvements
which were included for the purposes of determining the Appraised Value of any
Mortgaged Property lie wholly within the boundaries and building restriction
lines of such Mortgaged
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41
Property, and are stated in the title insurance policy and affirmatively
insured; no improvement located on or being part of any Mortgaged Property is
in violation of any applicable zoning law or regulation. To the best of
Seller's knowledge, all inspections, licenses and certificates required to be
made or issued with respect to all occupied portions of each Mortgaged Property
and, with respect to the use and occupancy of the same, including out not
limited to certificates of occupancy and fire underwriting certificates, have
been made or obtained from the appropriate authorities.
(xix) 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 Buyer or its assignees
under the deed of trust, except in connection with a trustee's sale after
default by the related Mortgagor.
(xx) With respect to each Second Mortgage Loan, either [A) no
consent for such Mortgage Loan was required by the holder of the related Senior
Lien prior to the making of such Mortgage Loan or (B) such consent has been
obtained and is contained in the related Loan Servicing File.
(xxi) Each Mortgage contains a provision for the acceleration of
the payment of the unpaid principal balance of the related Mortgage Loan in the
event the related Mortgaged Property is sold without the prior consent of the
Mortgagee thereunder; each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof adequate
for the realization against the related Mortgaged Property of the benefits of
the security, including (A) in the case of a Mortgage designated as a deed of
trust, by trustee's sale and (B) otherwise by judicial foreclosure. Subject to
any statutory redemption rights of the Mortgagor, upon default by a Mortgagor
on a Mortgage Loan and foreclosure on, or trustee's sale of, the Mortgaged
Property, the holder of the Mortgage Loan will be able to deliver good and
marketable title to the Mortgaged Property. To the best of Seller's knowledge,
there is no homestead or other exemption available to a Mortgagor which would
interfere With the right to sell the Mortgaged Property at a trustee's sale or
the right to foreclose on the Mortgaged Property.
(xxii) 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 and, and which has been
included in the related Funding Package delivered to the Buyer.
(xxiii) The maturity date of each Mortgage Loan which is a Second
Mortgage Loan is at least twelve (12) months prior to the maturity cats of the
related first mortgage loan if such first mortgage loan provides for a balloon
payment.
(xxiv) Each Mortgage Loan has been originated in accordance with
all required provisions of the Applicable Guidelines; a full appraisal was
performed with respect to each Mortgage Loan in compliance with the applicable
requirements set forth in the Applicable Guidelines. The fair market value of
the related Mortgaged Property was at least as stated in the appraisal, as of
the date thereof.
(xxv) As of the related Closing Date, to the best knowledge of
the Seller, there does not exist on any Mortgaged Property any hazardous
substances, hazardous wastes or solid wastes, as such terms are defined in the
Comprehensive Environmental
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Response Compensation and Liability Act, the Resource Conservation and Recovery
Act of 1976, or other federal, state or local environmental legislation.
(xxvi) Each Mortgage Loan which is a First Mortgage Loan shall be
covered by a valid and transferable tax service contract with Transamerica, or
other party approved by the Buyer.
(xxvii) No mortgage reconveyance, release, satisfaction or trustee
fees have been collected by Seller or paid by any Mortgagor. In addition, if
there is, in Buyer's reasonable judgment, a documentation problem that would
make reconveyance of satisfaction difficult, cumbersome or expensive to the
Buyer, then MCA or it's designee shall at the Buyer's request complete the
reconveyance of satisfaction of the Mortgage, including the recordation of the
necessary documentation, at MCA's sole cost and expense.
(xxviii) The Mortgage Loan is not in default, and all Monthly
Payments due prior to the related Cut-Off Date and all taxes, governmental
assessments, insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents have been paid, to the best knowledge of the Seller.
The Seller has not advanced funds, or induced or solicited any advance of funds
by a party other then the Mortgagor directly or indirectly, for the payment of
any amount required by the Mortgage Loan. The collection practices used by
each entity which has serviced the Mortgage Loan have been in all respects
legal, proper, prudent and customary in the mortgage servicing business. With
respect to escrow deposits and payments in those instances where such were
required, there exist no deficiencies in connection therewith for which
customary arrangements for repayment thereof have not been made and no escrow
deposits or payments or other charges or payments have been capitalized under
any Mortgage or the related Mortgage Note.
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EXHIBIT G
OPERATIONAL PROCEDURES
44
Persons on Attached Schedule 1
November __, 1996
Page 7
EXHIBIT H
FORM OF OPINION
__________, 1996
To: The Addresses identified on "Schedule I" attached hereto
Ladies and Gentlemen:
I am general counsel to each of MCA Financial Corp., a Michigan
corporation ("MCA Financial"), MCA Mortgage Corporation, a Michigan corporation
("MCA Mortgage") and Mortgage Corporation of America, a Michigan corporation
("MCA"), and have acted as such in connection with the execution and delivery
of the following agreements:
1. The Securitization Access Agreement among MCA Financial, MCA, MCA
Mortgage (collectively, the "MCA Companies"), Advanta Mortgage Conduit
Services, Inc. ("Advanta Conduit") and Advanta Mortgage Corp. USA ("Advanta
Mortgage"), dated November 1, 1996;
2. The Master Commitment for Corporate Finance Relationships by and
among the MCA Companies, Advanta Conduit and Advanta Mortgage dated as of
November 1, 1996.
The foregoing documents are sometimes collectively referred to below as
the "Documents", and any one of them is sometimes referred to below as a
"Document".
All capitalized terms herein not otherwise defined herein shall have the
respective meanings set forth in the Pooling and Servicing Agreement.
In rendering the opinions set forth herein, I have (i) examined executed
copies of the Documents; (ii) examined originals or photostatic or certified
copies of all such corporate records of each of the MCA Companies, and such
certificates of public officials, certificates of corporate officers, and other
documents, records financial statements and papers and have made such inquiries
of officers, employees and representatives of each of the MCA Companies as I
have deemed appropriate and necessary as a basis for the opinions hereinafter
expressed, and I have further assumed the truth, accuracy and completeness of
all information provided to me by such persons; (iii) assumed the genuineness
of all signatures (other than those of the officers of each of the MCA
Companies affixed to the Documents) and the authenticity of all documents
submitted to me as originals and the conformity to original documents of all
documents submitted to me as certified or photostatic copies; and (iv) assumed
the due execution and delivery, pursuant to the due authorization, of each of
the Documents by each of the respective parties (other than each of the MCA
Companies) to each such Document.
I am qualified to practice law only in the State of Michigan, and I am
not expert in and express no opinion as to the laws of other jurisdictions
other than the federal law of the United States. In rendering the above
opinions, I have assumed that the state law(s)
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45
Persons on Attached Schedule 1
November __, 1996
Page 8
applicable to the Documents and under which the same are to be construed is
identical in all material respects to the law of the State of Michigan.
Furthermore, the opinions expressed herein do not purport to opine as to
applicable state "Blue Sky" laws, legal investment laws, or other state or
federal laws pertaining to any securities law issues and securities matters
relating to the transactions described in the Documents.
Based upon the foregoing, and subject to the other qualifications stated
herein, I am of the opinion that:
1. Each of the MCA Companies is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan.
2. Each of the MCA Companies is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan and has
all licenses and qualifications necessary to carry on its business as now being
conducted and to perform its obligations hereunder; the MCA Companies have 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 MCA Companies 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 MCA Companies, contravene or violate any law or
regulation applicable to the MCA Companies 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 MCA Companies pursuant to the
provisions of, any mortgage, indenture, contract, agreement or other
undertaking to which any MCA Company 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 any MCA Company enforceable against each MCA Company 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;
3. 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 MCA Companies 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 MCA Companies and the performance by the MCA Companies of their respective
obligations under this Agreement;
4. There is no action, suit, proceeding or investigation pending or,
to the best of the MCA Companies' knowledge, threatened against any MCA Company
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 any MCA Company or in any material impairment of the
right or ability of any MCA Company to carry on its business
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Persons on Attached Schedule 1
November __, 1996
Page 9
substantially as now conducted, or in any material liability on the part of any
MCA Company or which would draw into question the validity of this Agreement or
the Mortgage Loans or of any action taken or to be taken in connection with the
obligations of any MCA Company contemplated herein, or which would be likely to
impair the ability of any MCA Company to perform under the terms of this
Agreement;
5. Each of the MCA Companies is not in default with respect to any
mortgage, indenture, contract, agreement or other undertaking to which any MCA
Company is a party or which purports to be binding upon Sponsor or any of
Sponsor's assets, or 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 default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of any MCA
Company or its properties or might have consequences that would adversely
affect its performance hereunder;
6. The execution and delivery of each of the Documents to which each
of the MCA Companies is a party, and its respective performance of its
obligations thereunder, will not (i) require any action by or in respect of, or
filing with, any governmental body, agency or official (other than the filing
of Uniform Commercial Code financing statements), or (ii) contravene, or
constitute a default under, any provision of applicable law or regulation or of
its Certificate (or Articles) of Incorporation or Bylaws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such
company.
The foregoing opinions are being rendered for the benefit only of the
Addressees listed on the attachment and may not be disclosed to, quoted to or
relied upon by any other person or entity without the prior written consent of
the undersigned.
Very truly yours,
_____________________________
Title: General Counsel
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Persons on Attached Schedule 1
November __, 1996
Page 10
SCHEDULE 1
Advanta Mortgage Corp. USA
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Advanta Mortgage Conduit Services, Inc.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Persons on Attached Schedule 1
November __, 1996
Page 11
EXHIBIT I
FORM OF SYNTHETIC RESIDUAL CERTIFICATE
This Synthetic Residual Certificate (this "Certificate") has been
issued in accordance with Section 9(d) of the Securitization Access Agreement
dated as of November 1, 1996 (the "Securitization Access Agreement") by and
among MCA Financial Corp. (the "Sponsor"), MCA Mortgage Corporation, and
Mortgage Corporation of America, Advanta Mortgage Conduit Services, Inc. (the
"Buyer") and Advanta Mortgage Corp. USA (the "Master Servicer"). This
Certificate is the Synthetic Residual Certificate referenced in Section 2 of
the Tri-Party Security Agreement dated as of November 1, 1996 (the "Security
Agreement") by and among the Buyer, the Master Servicer (the Buyer and the
Master Servicer together are referred to herein as the "Pledgors"), MCA
Financial Corp. and Bankers Trust Company of California, N.A., as trustee.
Unless otherwise indicated, terms used herein but not defined shall have the
respective meanings given to such terms in the Securitization Access Agreement.
This Certificate evidences the secured corporate obligation of the
Pledgors to pay the Residual Excess Servicing amounts to the Sponsor as
required by Section 9(c) of the Securitization Access Agreement. To secure
such obligation, the Pledgors have granted a security interest in the
Collateral (as such term is defined in the Security Agreement) to the Sponsor
pursuant to the Security Agreement. This Certificate does not represent any
direct ownership interest in any Mortgage Loans.
THIS CERTIFIES THAT MCA Financial Corp. is the owner of this
Certificate. This Certificate is not transferrable.
IN WITNESS WHEREOF, the Pledgors have caused this Certificate to be
signed, manually or in facsimile by its authorized officer.
Dated: November __, 1996
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
By:______________________
Name:
Title:
ADVANTA MORTGAGE CORP. USA
By:______________________
Name:
Title:
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49
EXHIBIT J
______________________________________________________________________________
TRI-PARTY SECURITY AGREEMENT
By and Among
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
ADVANTA MORTGAGE CORP. USA,
MCA FINANCIAL CORP.
and
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
Dated as of November 1, 1996
______________________________________________________________________________
50
TRI-PARTY SECURITY AGREEMENT
This TRI-PARTY SECURITY AGREEMENT (this "Agreement"), dated as of
November 1, 1996 by and among ADVANTA MORTGAGE CONDUIT SERVICES, INC.
("Advanta Mortgage Conduit"), ADVANTA MORTGAGE CORP. USA ("Advanta Mortgage
Corp.", together with Advanta Mortgage Conduit, the "Pledgors"), MCA FINANCIAL
CORP. (the "Secured Party") and BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as
trustee (the "Trustee").
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
Section 1. Definitions. In addition to the terms defined
elsewhere in this Agreement, the following terms shall have the following
meanings when used in this Agreement:
"Collateral" means the Pledgors' rights to receive payments of Residual
Excess Servicing in connection with each and every Securitized Loan Pool.
"Securitization Access Agreement" means the Securitization Access
Agreement dated as of November 1, 1996 by and among the Secured Party, MCA
Mortgage Corporation, Mortgage Corporation of America and the Pledgors, as
amended from time to time.
Capitalized terms used and not otherwise defined herein shall for all purposes
of this Agreement have the respective meanings specified therefor in the
Securitization Access Agreement.
Section 2. Pledge and Security.
Each Pledgor hereby pledges all of its respective right, title, and
interest in and to, and grants a first lien on, and security interest in, the
Collateral to the Secured Party to secure the obligation of the Pledgors to
make payments of Residual Excess Servicing to the Secured Party in accordance
with Section 9(c) of the Securitization Access Agreement, which obligation is
evidenced by the Synthetic Residual Certificate in the form of Exhibit I to the
Securitization Access Agreement.
Section 3. Financing Statement.
The Pledgors covenant that, on the date of execution of this
Agreement, the Pledgors shall cause to be filed a financing statement (Form
UCC-1) with the Secretary of State of California to perfect by filing thereof
the security interest in the Collateral granted by the Pledgors herein. The
Pledgors covenant to file in other jurisdictions upon the reasonable request of
the MCA Companies.
Section 4. Events of Default. Each of the following shall
constitute an "Event of Default" hereunder:
(a) Failure of the Pledgors to make any payment of Residual
Excess Servicing, owing to the Secured Party under Section 9(c) of the
Securitization Access Agreement, to the Secured Party which failure is not
remedied within five Business Days after written notice to the Pledgors
thereof.
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51
(b) The filing against either Pledgor of a petition for
liquidation, reorganization, arrangement or adjudication as a bankrupt or
similar relief under the bankruptcy, insolvency or similar laws of the United
States or any state or territory thereof or of any foreign jurisdiction as to
which such Pledgor fails to secure dismissal within 60 days of such filing.
Appointment of a receiver, conservator, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of either Pledgor or of any
substantial part of its property, the ordering of the winding-up or liquidation
of its affairs, or the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of either Pledgor in any involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect.
(c) Commencement by either Pledgor of a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or the consent by either Pledgor to the entry of an order for relief in
an involuntary case under any such law or to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of either Pledgor or of any
substantial part of its property, or the making by either Pledgor of any
general assignment for the benefit of creditors, or the failure of either
Pledgor generally to pay its debts as such debts become due, or the taking of
corporate action by either Pledgor in furtherance of any of the foregoing.
Section 5. Remedy Upon Default. Upon the happening of one or more
Events of Default, the Secured Party shall have the right to collect and
receive all further payments of Residual Excess Servicing due to it under
Section 9(c) of the Securitization Access Agreement directly from the Trustee.
The parties hereto agree that, upon the happening of one or more Events of
Default, the Trustee shall calculate the amounts, if any, owed by the Pledgors
to the Secured Party pursuant to Section 9(c) of the Securitization Access
Agreement and shall pay any and all such amounts from the Residual Excess
Servicing related to the Securitized Loan Pools that would otherwise be payable
to either Pledgor directly to the account of the Secured Party at _____
___________________________________ or to such other account of the Secured
Party identified by the Secured Party from time to time to the Trustee. The
Pledgors and the Secured Party acknowledge that the Secured Party has no
recourse against the Collateral upon the happening of an Event of Default,
other than as described in this Section 5. Notwithstanding the security
interest granted hereby, the Synthetic Residual Certificate represents a
general corporate liability of the Pledgors.
Section 6. 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 Pledgors:
▇▇▇▇ ▇. ▇▇▇▇▇▇
Advanta Mortgage Corp. USA
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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52
If to the Secured Party:
MCA Financial Corp.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
If to the Trustee:
Bankers Trust Company of California, N.A.
▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7. 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 8. Assignment; Successors and Assigns. 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. This Agreement shall be binding upon
the successors and assigns of the parties hereto.
Section 9. 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 10. Amendment. This Agreement may be amended from time to
time by the parties hereto only by a written instrument executed by such
parties.
Section 11. Governing Law; Agreement Constitutes Security
Agreement. This Agreement is intended by the parties hereto to be governed by,
and construed in accordance with, California law, without regard to conflict of
laws rules applied in California, and to constitute a security agreement within
the meaning of the California Uniform Commercial Code.
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53
IN WITNESS WHEREOF, the parties have executed this TRI-PARTY
SECURITY AGREEMENT as of the day and year first above written.
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
By:___________________________________________________
Name:
Title:
ADVANTA MORTGAGE CORP. USA
By:___________________________________________________
Name:
Title:
MCA FINANCIAL CORP.
By:___________________________________________________
Name:
Title:
BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as
Trustee
By:___________________________________________________
Name:
Title:
4