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Exhibit 4.4
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EXECUTION COPY
MORTGAGE LOAN TRANSFER AGREEMENT
by and among
ADVANTA MORTGAGE CORP. USA,
ADVANTA NATIONAL BANK,
ADVANTA BANK CORP.,
ADVANTA FINANCE CORP.,
as Originators
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
and
ADVANTA CONDUIT RECEIVABLES, INC.,
as Sponsor
Dated as of May 1, 2000
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TABLE OF CONTENTS
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SECTION 1 Definitions........................................................1
SECTION 2 Interest Calculations..............................................3
SECTION 3 Transfers of Mortgage Loans........................................3
SECTION 4 Representations, Warranties and Covenants Regarding the
Originators and the Sponsor........................................3
SECTION 5 Representations and Warranties of the Originators Regarding the
Mortgage Loans.....................................................7
SECTION 6 Authorized Representatives........................................13
SECTION 7 Notices...........................................................13
SECTION 8 Governing Law.....................................................14
SECTION 9 Assignment........................................................14
SECTION 10 Counterparts......................................................14
SECTION 11 Amendment.........................................................14
SECTION 12 Severability of Provisions........................................14
SECTION 13 No Agency; No Partnership or Joint Venture........................14
SECTION 14 Further Assurances................................................15
SECTION 15 The Certificate Insurer...........................................15
SECTION 16 Maintenance of Records............................................15
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THIS MORTGAGE LOAN TRANSFER AGREEMENT, dated as of May 1,
2000, between Advanta Mortgage Corp. USA, Advanta Finance Corp., Advanta Bank
Corp. and Advanta National Bank, each as a seller (each, an "Originator" and
collectively, the "Originators"), Bankers Trust Company of California, N.A., as
trustee (the "Trustee") and Advanta Conduit Receivables, Inc., as sponsor (the
"Sponsor");
W I T N E S S E T H:
WHEREAS, each Originator is an originator or purchaser of
mortgage loans, and all of the Mortgage Loans (as defined herein) were
originated or purchased by the Originators;
WHEREAS, certain of the Mortgage Loans are currently owned by
the Originators and the remaining portion of the Mortgage Loans were previously
conveyed by the Originators to one or more warehouse trusts (each, a "Warehouse
Trust") and are currently owned by a Warehouse Trust;
WHEREAS, the Originators and the Sponsor expect, from time to
time, to cause the Mortgage Loans owned by the Originators to be conveyed to the
Sponsor and then to the Trust in connection with a securitization transaction
sponsored by the Sponsor; and
WHEREAS, the Sponsor is purchasing the portion of the Mortgage
Loans owned by a Warehouse Trust from such Warehouse Trust pursuant to an
Assignment, dated as of May 24, 2000 (the "Assignment") such Mortgage Loans to
be identified on the Schedule of Mortgage Loans as "MSDW" or "SSB" under the
column heading of Prior Investor.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements herein contained, the parties hereto hereby agree as follows:
SECTION 1 Definitions. Whenever used in this Agreement or in
any Conveyance Agreement, the following words and phrases, unless the context
otherwise requires, shall have the meanings specified in this Section 1;
provided, however, that any capitalized terms used herein or in any Conveyance
Agreement and not defined herein shall have their respective meanings as set
forth in the Pooling and Servicing Agreement (as defined below).
Agreement: This Mortgage Loan Transfer Agreement, as it may be
amended from time to time, including the exhibits and supplements hereto.
Conveyance Agreement: Any conveyance agreement relating to a
Mortgage Pool, in substantially the form set forth as Exhibit A hereto.
Coupon Rate: The rate of interest borne by each Note.
Cut-Off Date: With respect to any Mortgage Pool, the date
defined as such in the related Conveyance Agreement.
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▇▇▇▇▇▇ ▇▇▇: The Federal National Mortgage Association, a
federally-chartered and privately-owned corporation existing under the Federal
National Mortgage Association Charter Act, as amended, or any successor thereof.
FDIC: The Federal Deposit Insurance Corporation, or any
successor thereto.
▇▇▇▇▇▇▇ Mac: The Federal Home Loan Mortgage Corporation, a
corporate instrumentality of the United States created pursuant to the Emergency
Home Finance Act of 1970, as amended, or any successor thereof.
First Mortgage Loan: A Mortgage Loan which constitutes a first
priority mortgage lien with respect to any Property.
Junior Mortgage Loan: A Mortgage Loan which constitutes a
junior priority mortgage lien with respect to the related Property.
Loan Balance: With respect to each Mortgage Loan, the
outstanding principal balance thereof on the related Cut-Off Date, less any
payments of principal on such Mortgage Loan that was transferred by the Master
Servicer or any Sub-Servicer to the Trustee for deposit in the Certificate
Account.
Master Servicer: Advanta Mortgage Corp. USA, a Delaware
corporation, and its permitted successors and assigns.
Mortgage File: The documents delivered to the Trustee pursuant
to the document delivery provisions of the Pooling and Servicing Agreement
pertaining to a particular Mortgage Loan.
Mortgage Loans: Each of the mortgage loans subject hereto or
purchased by the Sponsor from a Warehouse Trust, together with any Qualified
Replacement Mortgages substituted therefor in accordance with the Pooling and
Servicing Agreement.
Mortgage Pool: Any group of Mortgage Loans transferred to the
Sponsor and/or to the Trust pursuant to a specific Conveyance Agreement or
Subsequent Transfer Agreement.
Note: The note or other evidence of indebtedness of a
Mortgagor under a Mortgage Loan.
Offered Certificates: The Class A Certificates issued by the
Trust.
Person: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pooling and Servicing Agreement: The Pooling and Servicing
Agreement dated as of May 1, 2000, by and among Advanta Conduit Receivables,
Inc. as Sponsor,
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Advanta Mortgage Corp. USA, as master servicer, and Bankers Trust Company of
California, N.A., as trustee.
Property: The underlying property securing a Mortgage Loan.
Qualified Mortgage: Shall have the meaning set forth from time
to time in the definition thereof at Section 860G(a)(3) of the Code (or any
successor statute thereto) and applicable to the Trust and the Mortgage Loan.
Trust: Advanta Mortgage Loan Trust 2000-1, the trust created
under the Pooling and Servicing Agreement.
Trustee: Bankers Trust Company of California, N.A., a national
banking association, located on the date of execution of this Agreement at ▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, not in its individual
capacity but solely as trustee, and any successor hereunder.
SECTION 2 Interest Calculations. Calculations of interest
hereunder, including, without limitation, calculations of interest at the Coupon
Rate, which are made in respect of a Mortgage Loan shall be made on a daily
basis using any of the following (i) a 360-day year comprised of twelve 30-day
months, (ii) a 360-day year and the actual number of days elapsed in the
applicable interest period, (iii) a 365-day year and the actual number of days
elapsed in the applicable interest period, as specified in the related Note or
(iv) a 365-day year and the actual number of days between payments.
SECTION 3 Transfers of Mortgage Loans. On the Startup Date and
from time to time the Originators intend to transfer Mortgage Loans to the
Sponsor pursuant to a Conveyance Agreement in substantially the form of Exhibit
A hereto, and the Sponsor will purchase mortgage loans from each Warehouse Trust
pursuant to an Assignment. The Sponsor will then transfer the Mortgage Loans to
the Trust pursuant to the Pooling and Servicing Agreement.
SECTION 4 Representations, Warranties and Covenants Regarding
the Originators and the Sponsor. (a) Each Originator hereby represents and
warrants to the Sponsor, the Trustee and their respective successors and assigns
that, as of the date hereof:
(i) such Originator is a corporation (or, in the case of
Advanta National Bank, a national banking association, and, in the case
of Advanta Bank Corp., a Utah industrial loan corporation) duly
organized, validly existing and in good standing under the laws
governing its creation and existence and is in good standing as a
foreign corporation in each jurisdiction in which the nature of its
business, or the properties owned or leased by it make such
qualification necessary; each Originator has all requisite corporate
power and authority to own and operate its properties, to carry out its
business as presently conducted and as proposed to be conducted, to
enter into and discharge its obligations under this Agreement and each
Conveyance Agreement;
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(ii) the execution and delivery of this Agreement by each
Originator and its performance and compliance with the terms of this
Agreement and each Conveyance Agreement to which it is a party have
been duly authorized by all necessary corporate action on the part of
such Originator and will not violate such Originator's Articles of
Incorporation, Articles of Association or Bylaws or constitute a
default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in a breach of, any
material contract, agreement or other instrument to which such
Originator or its properties is a party or by which such Originator is
bound or violate any statute or any order, rule or regulation of any
court, governmental agency or body or other tribunal having
jurisdiction over such Originator or any of its properties;
(iii) this Agreement and each Conveyance Agreement to which
such Originator is a party, assuming due authorization, execution and
delivery by the other parties hereto and thereto, each constitutes a
valid, legal and binding obligation of such Originator, enforceable
against it in accordance with the terms hereof, except as the
enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law);
(iv) such Originator is not in default with respect to any
order or decree of any court or any order, regulation or demand of any
federal, state, municipal or governmental agency, which might have
consequences that would materially and adversely affect the condition
(financial or other) or operations of such Originator or its
properties, or might have consequences that would materially and
adversely affect its performance hereunder and under each Conveyance
Agreement to which such Originator is a party, or which would draw into
question the validity of this Agreement or the Mortgage Loans taken as
a whole or of any action taken or to be taken in connection with the
obligations of the Originator contemplated herein;
(v) no litigation is pending or, to the best of such
Originator's knowledge, threatened against such Originator which
litigation might have consequences that would prohibit its entering
into this Agreement or any Conveyance Agreement to which it is a party
or might have consequences that would materially and adversely affect
its performance hereunder and under each Conveyance Agreement to which
such Originator is a party;
(vi) neither this Agreement nor any certificate of an officer,
statement furnished in writing or report delivered pursuant to the
terms hereof by such Originator contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
certificate, statement or report not misleading;
(vii) upon the receipt of each Mortgage File by the Trustee
under this Agreement, the Trust will have good and marketable title to
such Mortgage Loan and such other items of the Mortgage File free and
clear of any lien (other than liens which will be simultaneously
released);
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(viii) neither such Originator nor any affiliate thereof will
report on any financial statement any part of the Servicing Fee as an
adjustment to the sales price of the Mortgage Loans;
(ix) all actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc., under any state
securities laws, real estate syndication or "Blue Sky" statutes, as to
which such Originator makes no such representation or warranty), that
are necessary or advisable in connection with the sale of the Mortgage
Loans and the execution and delivery by such Originator of this
Agreement and each Conveyance Agreement to which it is a party, have
been duly taken, given or obtained, as the case may be, are in full
force and effect on the date hereof, are not subject to any pending
proceedings or appeals (administrative, judicial or otherwise) and
either the time within which any appeal therefrom may be taken or
review thereof may be obtained has expired or no review thereof may be
obtained or appeal therefrom taken, and are adequate to authorize the
consummation of the transactions contemplated by this Agreement and
each Conveyance Agreement on the part of such Originator and the
performance by such Originator of its obligations under this Agreement
and each Conveyance Agreement to which it is a party;
(x) the origination practices used by such Originator with
respect to the Mortgage Loans have been, (A) in all material respects,
legal, proper, prudent and customary in the mortgage loan lending
business and (B) in compliance with the Originators' or the Sponsor's
underwriting criteria as described in the Prospectus;
(xi) the transactions contemplated by this Agreement are in
the ordinary course of business of such Originator; the transfer,
assignment and conveyance of the Notes and the Mortgages by the Master
Servicer pursuant to this Agreement are not subject to the bulk
transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction;
(xii) such Originator received fair consideration and
reasonably equivalent value in exchange for the sale of the interests
in the Mortgage Loans;
(xiii) such Originator did not sell any interest in any
Mortgage Loan with any intent to hinder, delay or defraud any of its
respective creditors; and
(xiv) such Originator is solvent and will not be rendered
insolvent as a result of the sale of the Mortgage Loans to the Trust.
The representations and warranties set forth in this Section
4(a) shall survive the sale and assignment of the Mortgage Loans to the Sponsor.
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In addition, each Originator hereby covenants to perform the
obligations, if any, imposed upon it by the Pooling and Servicing Agreement.
(b) The Sponsor hereby represents and warrants to each
Originator and the Trustee that, as of the date hereof:
(i) the Sponsor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada and
has all licenses and qualifications necessary to carry on its business
as now being conducted and to perform its obligations hereunder; the
Sponsor has the power and authority to execute and deliver this
Agreement and to perform its obligations in accordance herewith; the
execution, delivery and performance of this Agreement (including any
Conveyance Agreement and any other instruments of transfer to be
delivered pursuant to this Agreement) by the Sponsor and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action and do not violate
the organization documents of the Sponsor, contravene or violate any
law, regulation, rule, order, judgement or decree to which the Sponsor
or its properties are subject or contravene, violate or result in any
breach of any provision of, or constitute a default under, or result in
the imposition of any lien on any assets of the Sponsor pursuant to the
provisions of, any mortgage, indenture, contract, agreement or other
undertaking to which the Sponsor is a party or which purports to be
binding upon Sponsor or any of Sponsor's assets; this Agreement
evidences the valid and binding obligation of the Sponsor enforceable
against the Sponsor in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally or the
application of equitable principles in any proceeding, whether at law
or in equity;
(ii) all actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or
agency, that are necessary in connection with the execution and
delivery by the Sponsor of this Agreement, have been duly taken, given
or obtained, as the case may be, are in full force and effect, are not
subject to any pending proceedings or appeals (administrative, judicial
or otherwise) and either the time within which any appeal therefrom may
be taken or review thereof may be obtained has expired or no review
thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this
Agreement on the part of the Sponsor and the performance by the Sponsor
of its obligations under this Agreement; and
(iii) there is no action, suit, proceeding or investigation
pending or, to the best of the Sponsor's knowledge, threatened against
the Sponsor which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Sponsor or in any
material impairment of the right or ability of the Sponsor to carry on
its business substantially as now conducted, or in any material
liability on the part of
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the Sponsor or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
obligations of the Sponsor contemplated herein, or which would be
likely to impair the ability of the Sponsor to perform under the terms
of this Agreement.
The representations and warranties set forth in this Section
4(b) shall survive the sale and assignment of the Mortgage Loans to the Sponsor.
Upon discovery of a breach of any of the foregoing representations and
warranties which materially and adversely affects the interests of any
Originator, such Originator shall give prompt written notice to the Sponsor.
Within 30 days of its receipt of notice of breach, the Sponsor shall cure such
breach in all material respects.
SECTION 5 Representations and Warranties of the Originators
Regarding the Mortgage Loans. (a) Set forth in Section 5(b) below is a list of
representations and warranties which will be deemed to have been made by each
Originator in connection with the Mortgage Loans originated by such Originator
and conveyed by such Originator or each Warehouse Trust, as the case may be, to
the Sponsor. In addition, a Conveyance Agreement may, with respect to the
Mortgage Loans in the related Mortgage 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 Section 5(b) below, together with any Additional
Representations and Warranties, are the "Representations and Warranties".
Reference to the Cut-Off Date is as of the Cut-Off Date set forth in the related
Conveyance Agreement.
(b) With respect to each Mortgage Loan originated by each
Originator, such Originator hereby represents, warrants and covenants to the
Sponsor and the Trustee, as of the related Cut-Off Date, as follows, on which
representations, warranties and covenants the Trustee relies in accepting the
Mortgage Loans:
(i) the information with respect to each Mortgage Loan set
forth in the Schedule of Mortgage Loans is true and correct;
(ii) all of the original or certified documentation required
to be delivered to the Trustee pursuant to the Pooling and Servicing
Agreement (including all material documents related thereto) with
respect to each Mortgage Loan has been or will be delivered to the
Trustee in accordance with the terms of the Pooling and Servicing
Agreement; each of the documents and instruments specified to be
included therein has been duly executed and is in due and proper form,
and each such document or instrument is in a form generally acceptable
to prudent mortgage lenders that regularly originate or purchase
mortgage loans comparable to the Mortgage Loans for sale to prudent
investors in the secondary market that invest in mortgage loans such as
the Mortgage Loans;
(iii) each Mortgage Loan being transferred to the Sponsor is a
Qualified Mortgage;
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(iv) each Property is improved by a one-to-four family
residential dwelling, condominiums and townhouses, which may include
manufactured homes which qualify as eligible for inclusion in a REMIC;
provided, however, that no more than 10.0% by aggregate principal
balance of the Mortgage Loans as of the Initial Cut-Off Date are
leasehold mortgages;
(v) no Mortgage Loan had a Combined Loan-to-Value Ratio in
excess of 100% at the time of origination; provided, however, that up
to 1% of the Mortgage Loans may have a Combined Loan-to-Value Ratio of
greater than 100% but less than 101%;
(vi) each Mortgage is either a valid and subsisting first,
second or third lien of record on the Property (subject in the case of
any Junior Mortgage Loan only to a Senior Lien on such Property) and
subject in all cases to the exceptions to title set forth in the
Mortgage Loan's title insurance policy, which exceptions are generally
acceptable to banking institutions in connection with their regular
mortgage lending activities, and such other exceptions to which similar
properties are commonly subject and which do not individually, or in
the aggregate, materially and adversely affect the benefits of the
security intended to be provided by such Mortgage;
(vii) immediately prior to the transfer and assignment herein
contemplated, each Originator or each Warehouse Trust held good and
indefeasible title to, and was the owner of, each Mortgage Loan
originated by such Originator and conveyed by such Originator or each
Warehouse Trust, as the case may be, to the Sponsor; the Mortgage Loan
was not subject to liens, charges, mortgages, encumbrances or rights of
others except liens which will be released simultaneously with such
transfer and assignment; and immediately upon the transfer and
assignment herein contemplated, the Trustee will hold good and
indefeasible title to, and be the sole owner of, each Mortgage Loan
subject to no liens, charges, mortgages, encumbrances or rights of
others except liens which will be released simultaneously with such
transfer and assignment;
(viii) no Mortgage Loans are 30 or more days Delinquent as of
the Cut-Off Date, except for any portion of the Mortgage Loans which
the Pooling and Servicing Agreement so permits;
(ix) to the best knowledge of such Originator, there is no
delinquent tax or assessment lien or mechanic's lien on any Property,
and each Property is free of substantial damage and is in good repair;
(x) to the best knowledge of such Originator, there is no
valid and enforceable right of rescission offset, defense or
counterclaim to any Note or Mortgage, including the obligation of the
related Mortgagor to pay the unpaid principal of or interest on such
Note or the defense of usury, nor will the operation of any of the
terms of the Note or the Mortgage, or the exercise of any right
thereunder, render either the Note or the Mortgage unenforceable in
whole or in
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part, or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury, and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto;
(xi) to the best knowledge of such Originator, there is no
mechanics' lien or claim for work, labor or material affecting any
Property which is or may be a lien prior to, or equal with, the lien of
the related Mortgage except those which are insured against by any
title insurance policy referred to in paragraph (xiii) below;
(xii) each Mortgage Loan at the time it was made complied in
all material respects with all applicable state and federal laws and
regulations, including, without limitation, the federal
Truth-in-Lending Act and other consumer protection laws, real estate
settlement procedure, usury, equal credit opportunity, disclosure and
recording laws;
(xiii) with respect to each Mortgage Loan, a title search or a
lender's title insurance policy, issued in standard California Land
Title Association form or American Land Title Association form, or
other form acceptable in a particular jurisdiction by a title insurance
company authorized to transact business in the state in which the
related Property is situated, in an amount at least equal to the
Original Principal Amount of such Mortgage Loan insuring the
mortgagee's interest under the related Mortgage Loan as the holder of a
valid first, second or third mortgage lien of record on the Property
described in the related Mortgage, as the case may be, subject only to
exceptions of the character referred to in paragraph (vi) above, was
effective on the date of the origination of such Mortgage Loan, and, as
of the Cut-Off Date such policy, if issued, will be valid and
thereafter such policy shall continue in full force and effect;
(xiv) the improvements upon each Property are covered by a
valid and existing hazard insurance policy (which may be a blanket
policy of the type described in the Pooling and Servicing Agreement)
with a generally acceptable carrier that provides for fire and extended
coverage representing coverage not less than the least of (A) the
outstanding principal balance of the related Mortgage Loan (together,
in the case of a Junior Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
full insurable value of the Property;
(xv) if the Mortgage Loan at the time of origination relates
to a Property in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards, a
flood insurance policy (which may be a blanket or master policy of the
type described in the Pooling and Servicing Agreement) in a form
meeting the requirements of the current guidelines of the Federal
Insurance Administration with a generally acceptable carrier is in
effect with respect to such Property in an amount representing
coverage, and which provides for a recovery by the Master Servicer of
insurance
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proceeds relating to such Mortgage Loan of not less than the least of
(A) the outstanding principal balance of the Mortgage Loan, (B) the
minimum amount required to compensate for damage or loss on a
replacement cost basis and (C) the maximum amount of insurance that is
available under the Flood Disaster Protection Act of 1973;
(xvi) each Mortgage and Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with
its terms, except only as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether considered in a proceeding or
action in equity or at law), and all parties to each Mortgage Loan had
full legal capacity to execute all documents relating to such Mortgage
Loan and convey the estate therein purported to be conveyed;
(xvii) each Originator has caused and will cause to be
performed any and all acts required to be performed to preserve the
rights and remedies of the Master Servicer in any Mortgage Insurance
Policy applicable to any Mortgage Loan delivered by such Originator
including, to the extent such Mortgage Loan is not covered by a blanket
or master policy described in the Pooling and Servicing Agreement, any
necessary notifications of insurers, assignments of policies or
interests therein, and establishments of co-insured, joint loss payee
and mortgagee rights in favor of the Master Servicer;
(xviii) each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof for
the benefit of the applicable Originator, subject to the provisions of
Section 3.5(b) of the Pooling and Servicing Agreement;
(xix) the terms of each Note and each Mortgage have not been
impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the
interest of the owners and which has been delivered to the Trustee; the
substance of any such alteration or modification is reflected on the
related Schedule of Mortgage Loans and has been approved by the primary
mortgage guaranty insurer, if any;
(xx) the proceeds of each Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to
make future advances thereunder; any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with; all
costs, fees and expenses incurred in making or closing or recording
such Mortgage Loans were paid;
(xxi) except as otherwise required by law or pursuant to the
statute under which the related Mortgage Loan was made, the related
Note is not and has
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not been secured by any collateral, pledged account or other security
except the lien of the corresponding Mortgage;
(xxii) to the best knowledge of such Originator, no Mortgage
Loan was originated under a buydown plan;
(xxiii) to the best knowledge of such Originator, no Mortgage
Loan provides for negative amortization, has a shared appreciation
feature, or other contingent interest feature;
(xxiv) each Property is located in the state identified in the
Schedule of Mortgage Loans and consists of one or more parcels of real
Property with a residential dwelling erected thereon;
(xxv) each Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of the related Mortgage
Loan in the event the related Property is sold without the prior
consent of the mortgagee thereunder, except as may be otherwise
provided in the Pooling and Servicing Agreement;
(xxvi) any advances made after the date of origination of a
Mortgage Loan but prior to the Cut-Off Date, have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Schedule of
Mortgage Loans. No Note permits or obligates the Master Servicer, the
Sub-Servicer or the Sponsor to make future advances to the related
Mortgagor at the option of the Mortgagor;
(xxvii) to the best knowledge of such Originator, there is no
proceeding pending or threatened for the total or partial condemnation
of any Property, nor is such a proceeding currently occurring, and each
Property is undamaged by waste, fire, earthquake or earth movement,
flood, tornado or other casualty, so as to affect adversely the value
of the Property as security for the Mortgage Loan or the use for which
the premises were intended;
(xxviii) all of the improvements which were included for the
purposes of determining the Appraised Value of any Property lie wholly
within the boundaries and building restriction lines of such Property,
and no improvements on adjoining properties encroach upon such
Property, and, if a title insurance policy exists with respect to such
Property, are stated in such title insurance policy and affirmatively
insured;
(xxix) to the best knowledge of such Originator, no
improvement located on or being part of any Property is in violation of
any applicable zoning law or regulation; all inspections, licenses and
certificates required to be made or issued with respect to all occupied
portions of each Property and, with respect to the use and occupancy of
the same, including but not limited to certificates of occupancy and
fire underwriting certificates, have been made or obtained from the
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appropriate authorities and such Property is lawfully occupied under
the applicable law;
(xxx) with respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in
such Mortgage, and no fees or expenses are or will become payable by
the Sponsor or the Trust to the trustee under the deed of trust, except
in connection with a trustee's sale after default by the related
Mortgagor;
(xxxi) with respect to each Junior Mortgage Loan, either (A)
no consent for such Mortgage Loan was required by the holder of the
related Senior Lien prior to the making of such Mortgage Loan or (B)
such consent has been obtained and is contained in the related Mortgage
File;
(xxxii) each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Property of the
benefits of the security, including (A) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (B) otherwise by
judicial foreclosure. To the best knowledge of such Originator, there
is no homestead or other exemption available which materially
interferes with the right to sell the related Property at a trustee's
sale or the right to foreclose the related Mortgage;
(xxxiii) except as provided by paragraph (viii) of this
Section 5(b), there is no default, breach, violation or event of
acceleration existing under any Mortgage or the related Note and no
event which, with the passage of time or with notice and the expiration
of any grace or cure period, would constitute a default, breach,
violation or event of acceleration; and the applicable Originator has
not waived any default, breach, violation or event of acceleration;
(xxxiv) to the best knowledge of such Originator, 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 and which has
been delivered to the Trustee;
(xxxv) the credit underwriting guidelines applicable to each
Mortgage Loan conform in all material respects to the Originators' or
the Sponsor's underwriting guidelines;
(xxxvi) all parties to the Note and the Mortgage had legal
capacity to execute the Note and the Mortgage and each Note and
Mortgage have been duly and properly executed by such parties; and
(xxxvii) the related Originator has no actual knowledge that
there exist on any Property any hazardous substances, hazardous wastes
or solid wastes, as such terms are defined in the Comprehensive
Environmental Response Compensation
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and Liability Act, the Resource Conservation and Recovery Act of 1976,
or other federal, state or local environmental legislation.
(c) There is no obligation on the part of the Master Servicer,
the Originators, any Warehouse Trust or any other party to make payments in
addition to those made by the Mortgagor except as specified in the Pooling and
Servicing Agreement.
The Representations and Warranties shall survive the transfer
and assignment of the Mortgage Loans to the Trust. Upon discovery by any
Originator or the Sponsor of a breach of any of the Representations and
Warranties, without regard to any limitation set forth in such Representation or
Warranty concerning the knowledge of the related Originator as to the facts
stated therein, which breach, in the opinion of the Sponsor, materially and
adversely affects the interests of the Sponsor, the Owners or the Certificate
Insurer in the related Mortgage Loan or Mortgage Loans, the party discovering
such breach shall give prompt written notice to the other party, and the related
Originator shall be required to take the remedial actions required by the
related Pooling and Servicing Agreement within the time periods required
therein, including with respect to any Mortgage Loans originated by such
Originator but sold to the Sponsor by a Warehouse Trust. No Originator shall be
obliged to act in regard to Mortgage Loans not originated by it. Each Originator
hereby acknowledges that a breach of any of the Representations and Warranties
listed in paragraphs (iii), (x) and (xvi) of Section 5(b) materially and
adversely affects the interests of the Trust, the related Owners and the
Certificate Insurer.
SECTION 6 Authorized Representatives. The names of the
officers of the Originators and of the Sponsor who are authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Agreement on behalf of each Originator and of
the Sponsor ("Authorized Representatives") are set forth on Exhibit B. From time
to time, each Originator and the Sponsor may, by delivering to the Trustee a
revised exhibit, change the information previously given, but the Trustee shall
be entitled to rely conclusively on the last exhibit until receipt of a
superseding exhibit.
SECTION 7 Notices. All demands, notices and communications
relating to this Agreement shall be in writing and shall be deemed to have been
duly given when received by the other party or parties at the address shown
below, or such other address as may hereafter be furnished to the other party or
parties by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee.
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If to the Trustee:
Bankers Trust Company of California, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Originator or the Sponsor:
Advanta Mortgage Corp. USA
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mortgage Structured Finance
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 8 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
regard to conflict of laws rules applied in the State of New York.
SECTION 9 Assignment. No party to this Agreement may assign
its rights or delegate its obligations under this Agreement without the express
written consent of the other parties, except as otherwise set forth in this
Agreement.
SECTION 10 Counterparts. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed to be an original, and together shall constitute and be one and the same
instrument.
SECTION 11 Amendment. This Agreement may be amended from time
to time by any of the Originators, the Sponsor and the Trustee only by a written
instrument executed by such parties and with the prior written consent of each
of the other parties hereto and the Certificate Insurer.
SECTION 12 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall be for
any reason whatsoever held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 13 No Agency; No Partnership or Joint Venture. Neither
the Originators nor the Sponsor is the agent or representative of the other, and
nothing in this Agreement shall be construed to make either the Originator nor
the Sponsor liable to any third party for services performed by it or for debts
or claims accruing to it against the
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other party. Nothing contained herein nor the acts of the parties hereto shall
be construed to create a partnership or joint venture between the Sponsor and
the Originator.
SECTION 14 Further Assurances. The Originators and Sponsor
agree to cooperate reasonably and in good faith with one another in the
performance of this Agreement.
SECTION 15 The Certificate Insurer. The Certificate Insurer is
a third-party beneficiary of this Agreement. Any right conferred to the
Certificate Insurer shall be suspended during any period in which the
Certificate Insurer is in default in its payment obligation's under the
Certificate Insurance Policy. During any period of suspension, the Certificate
Insurer's rights hereunder shall vest in the Owners of the Offered Certificates
and shall be exercisable by the Owners of at least a majority in Percentage
Interest of the Offered Certificates then outstanding. At such time as the
related Offered Certificates are no longer Outstanding under the Pooling and
Servicing Agreement and the Certificate Insurer has been reimbursed for all
Insured Payments to which it is entitled under the Pooling and Servicing
Agreement, the Certificate Insurer's rights hereunder shall terminate.
SECTION 16 Maintenance of Records. Each Originator shall each
continuously keep an original executed counterpart of this Agreement in its
official records.
[Remainder of Page Intentionally Left Blank]
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19
IN WITNESS WHEREOF, the parties hereto have caused this
Mortgage Loan Transfer Agreement to be duly executed by their respective
officers, all as of the day and year first above written.
ADVANTA MORTGAGE CORP. USA,
ADVANTA FINANCE CORP.,
ADVANTA NATIONAL BANK,
as Sellers
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ADVANTA BANK CORP.,
as Seller
By:______________________________
Name:
Title:
ADVANTA CONDUIT RECEIVABLES,
INC., as Sponsor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
______________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Trustee and
not in its individual capacity
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Secretary
20
EXHIBIT A
CONVEYANCE AGREEMENT
Advanta Mortgage Corp. USA, Advanta Finance Corp., Advanta
Bank Corp. and Advanta National Bank, (each, an "Originator"), and Advanta
Conduit Receivables, Inc., as sponsor (the "Sponsor"), pursuant to the Mortgage
Loan Transfer Agreement, dated as of May 1, 2000 (the "Transfer Agreement"),
among themselves and Bankers Trust Company of California, N.A., as trustee (the
"Trustee"), hereby confirm their understanding with respect to the conveyance by
each Originator of those Mortgage Loans listed on the attached Schedule of
Mortgage Loans (the "Mortgage Loans") to the Sponsor.
Conveyance of Mortgage Loans. Each Originator and the Sponsor,
concurrently with the execution and delivery of this Conveyance Agreement, does
hereby irrevocably transfer, assign, set over and otherwise convey, and does
direct the Trustee to convey to the Sponsor and/or the Advanta Mortgage Loan
Trust 2000-1, without recourse (except as otherwise explicitly provided for
herein) all of its right, title and interest in and to the Mortgage Loans being
conveyed by it, including specifically, without limitation, the Mortgages (as
such term is defined in the Pooling and Servicing Agreement, dated as of May 1,
2000 (the "Pooling and Servicing Agreement"), among the Sponsor, the Master
Servicer and the Trustee), the Notes, the Mortgage Files and all other
documents, materials and properties appurtenant thereto, including all interest
accrued and principal received by such Originator on or with respect to such
Mortgage Loans on or after the related Cut-off Date, together with all of its
right, title and interest in and to the proceeds received on or after the
related Cut-off Date of any related Mortgage Insurance Policies.
If an Originator cannot deliver the original Mortgage or
mortgage assignment with evidence of recording thereon concurrently with the
execution and delivery of this Conveyance Agreement solely because of a delay
caused by the public recording office where such original Mortgage or mortgage
assignment has been delivered for recordation, such Originator shall promptly
deliver to the Trustee such original Mortgage or mortgage assignment with
evidence of recording indicated thereon upon receipt thereof from the public
recording official.
The costs relating to the delivery of the documents specified
in this Conveyance Agreement shall be borne by each Originator.
The Originators hereby make the Representations and Warranties
set forth in Section 5(b) of the Transfer Agreement with respect to the Mortgage
Loans, including any Mortgage Loans assigned to the Sponsor by a Warehouse Trust
and originated by such Originator.
The "Cut-Off Date" with respect to such Mortgage Loans shall
be ________,______.
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All terms and conditions of the Mortgage Loan Transfer
Agreement are hereby incorporated herein, provided that in the event of any
conflict the provisions of this Conveyance Agreement shall control over the
conflicting provisions of the Transfer Agreement.
Terms capitalized herein and not defined herein shall have
their respective meanings as set forth in the Transfer Agreement.
[Remainder of Page Intentionally Left Blank]
A-2
22
IN WITNESS WHEREOF, the parties hereto have caused this
Conveyance Agreement to be duly executed by their respective officers, all as of
the ____ day of ______, ____.
ADVANTA MORTGAGE CORP. USA,
ADVANTA FINANCE CORP.,
ADVANTA NATIONAL BANK,
as Originators
By:_________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ADVANTA BANK CORP.,
as an Originator
By:_________________________
Name:
Title:
ADVANTA CONDUIT RECEIVABLES,
INC., as Sponsor
By:_________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as Trustee
By:_________________________
Name:
Title:
A-3
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EXHIBIT B
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Mortgage Loan Transfer
Agreement, dated as of May 1, 2000 (the "agreement"), among Advanta Mortgage
Corp. USA, Advanta Finance Corp., Advanta Bank Corp. and Advanta National Bank,
as originators (the "Originators"), Advanta Conduit Receivables, Inc., as
sponsor and Bankers Trust Company of California, N.A., as trustee:
The following are the Authorized Representatives for Advanta
Mortgage Corp. USA, Advanta Finance Corp. and Advanta National Bank for purposes
of the Agreement:
Name Title
---- -----
▇▇▇▇▇▇▇ ▇▇▇▇ Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President
The following are the Authorized Representatives for Advanta
Bank Corp. for purposes of the Agreement:
Name Title
---- -----
▇▇▇▇ ▇▇▇▇▇ President
▇▇▇▇ ▇▇▇▇▇▇ Vice President
The following are the Authorized Representatives for the
Sponsor for purposes of the Agreement:
Name Title
---- -----
▇▇▇▇▇▇▇ ▇▇▇▇ Vice President
▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President
B-1