1
EXHIBIT 4.6
-------------------------------------------------------------------------------
MASTER LOAN TRANSFER AGREEMENT
Dated as of [_____________, _____]
by and among
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK
ADVANTA BANK CORP.
ADVANTA FINANCE CORP.,
as Affiliated Originators
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
as an Affiliate
[TRUSTEE],
as Trustee
and
ADVANTA CONDUIT RECEIVABLES, INC.,
as Sponsor
--------------------------------------------------------------------------------
2
TABLE OF CONTENTS
Page
----
Section 1. Definitions..........................................................................1
Section 2. Interest Calculations................................................................4
Section 3. Transfers of Mortgage Loans..........................................................4
Section 4. Representations, Warranties and Covenants Regarding the Affiliated
Originators and the Sponsor..........................................................4
Section 5. Representations and Warranties of the Affiliated Originators
Regarding the Mortgage Loans.........................................................8
Section 6. Authorized Representatives..........................................................14
Section 7. Notices.............................................................................14
Section 8. Governing Law.......................................................................15
Section 9. Assignment..........................................................................15
Section 10. Counterparts........................................................................15
Section 11. Amendment...........................................................................15
Section 12. Severability of Provisions..........................................................15
Section 13. No Agency; No Partnership or Joint Venture..........................................15
Section 14. Further Assurances..................................................................15
Section 15. The Certificate Insurer.............................................................15
Section 16. Maintenance of Records..............................................................16
3
THIS MASTER LOAN TRANSFER AGREEMENT, dated as of [____________, _____],
between Advanta Mortgage Corp. USA, Advanta Mortgage Corp. Midatlantic, Advanta
Mortgage Corp. Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta Mortgage
Corp. of New Jersey, Advanta Mortgage Corp. Northeast, Advanta Mortgage Conduit
Services, Inc., Advanta Finance Corp., Advanta Bank Corp. and Advanta National
Bank, each a seller (each an "Affiliated Originator" and collectively, the
"Affiliated Originators"), Advanta Mortgage Conduit Services, Inc. (the
"Affiliate"), [Trustee], as trustee ("Trustee") and Advanta Conduit Receivables,
Inc., as sponsor ("Sponsor");
I. BACKGROUND
A. Each Affiliated Originator is an originator or purchaser of mortgage
loans which such Affiliated Originator may, from time to time, convey to a
Warehouse Trust;
B. The Affiliated Originators and the Sponsor expect, from time to
time, to cause such mortgage loans to be conveyed to an Advanta Trust in
connection with a securitization transaction sponsored by the Sponsor.
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements herein contained, the parties hereto hereby agree as follows:
Section 1. Definitions.
Whenever used in this Agreement or in any Conveyance Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the meanings specified in this Section; provided, however, that any capitalized
terms used herein or in any conveyance Agreement and not defined herein shall
have their respective meanings as set forth in the related Advanta Pooling
Agreement.
Advanta Pooling Agreement: Any Pooling and Servicing Agreement entered
into by Advanta Conduit Receivables, Inc. as Sponsor, Advanta Mortgage Corp.
USA, as Master Servicer and a trustee or any Sale and Servicing Agreement
entered into by Advanta Conduit Receivables, Inc., as Sponsor, Advanta Mortgage
Corp. USA, as Master Servicer, an Advanta Trust and an indenture trustee, as
either may be amended and supplemented from time to time by the parties thereto
Advanta Trust: A securitization trust created by the Sponsor into which
Mortgage Loans described in this Agreement and the Conveyance Agreements are
deposited, including the Conduit Acquisition Trust.
Agreement: This Master Loan Transfer Agreement as it may be amended
from time to time, including the exhibits and supplements hereto.
4
Bulk Acquisition Loan: Any Mortgage Loan purchased by an Affiliated
Originator from another Originator (other than any other Affiliated Originator)
as part of a bulk portfolio acquisition.
Conduit Acquisition P&S: The Pooling and Servicing Agreement dated as
of May 1, 1997, as amended, by and between Advanta Mortgage Conduit Services
Inc. and the Trustee relating to the Conduit Acquisition Trust.
Conduit Acquisition Trust: The trust created pursuant to the Conduit
Acquisition P&S.
Conveyance Agreement: Any conveyance agreement relating to a Pool, in
substantially the form set forth as Exhibit A hereto.
Coupon Rate: The rate of interest borne by each Note.
Cut-Off Date: With respect to any Pool, as defined in the related
Conveyance Agreement.
FDIC: The Federal Deposit Insurance Corporation, or any successor
thereto.
FHLMC: The Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created pursuant to the Emergency Home
Finance Act of 1970, as amended, or any successor thereof.
File: The documents delivered to the Trustee pursuant to the document
delivery provisions of the Conduit Acquisition P&S pertaining to a particular
Mortgage Loan, together with any additional documents required to be added to
the File pursuant to the Conduit Acquisition P&S.
First Mortgage Loan: A Mortgage Loan which constitutes a first priority
mortgage lien with respect to any Property.
FNMA: The Federal National Mortgage Association, a federally-chartered
and privately-owned corporation existing under the Federal National Mortgage
Association Charter Act, as amended, or any successor thereof.
Junior Mortgage Loan: A Mortgage Loan which constitutes a junior
priority mortgage lien with respect to the related Property.
Junior Lien: With respect to any Junior Mortgage Loan, the mortgage
loan relating to the corresponding Property having a senior priority lien.
Loan Balance: With respect to each Mortgage Loan, the outstanding
principal balance thereof on the related Cut-Off Date, less any related
Principal Remittance Amounts relating to such Mortgage Loan included in previous
related
2
5
Monthly Remittance Amounts that were transferred by the Master Servicer or any
Sub-Servicer to the Trustee for deposit in the related Certificate Account.
Master Servicer: Advanta Mortgage Corp. USA, a Delaware corporation,
and its permitted successors and assigns.
Mortgage Loans: Each of the mortgage loans subject hereto, together
with any Qualified Replacement Mortgages substituted therefor in accordance with
the related Advanta Pooling Agreement.
Note: The note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
Offered Certificates: Any securities issued by an Advanta Trust which
are not retained by the Sponsor, any affiliate of the Sponsor or any Originator.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
Pool: Any group of Mortgage Loans transferred to the Sponsor and/or to
an Advanta Trust pursuant to a specific Conveyance Agreement.
Property: The underlying property securing a Mortgage Loan.
Qualified Mortgage: "Qualified Mortgage" shall have the meaning set
forth from time to time in the definition thereof at Section 860G(a)(3) of the
Code (or any successor statute thereto) and applicable to the related Advanta
Trust.
Schedules of Mortgage Loans: The Schedules of Mortgage Loans required
to be delivered pursuant to the related Advanta Pooling Agreement.
Trustee: [Trustee], located on the date of execution of this Agreement
at [Address], a [Type of Organization], not in its individual capacity but
solely as Trustee, and any successor hereunder.
Unaffiliated Originator Loan: Any Mortgage Loan purchased by an
Affiliated Originator from an Unaffiliated Originator.
Unaffiliated Originators: Any Originator not affiliated with the
Sponsor.
Warehouse Trust: Any trust established by an affiliate of the Sponsor
to finance the origination of mortgage loans, including, without limitation, the
Conduit Acquisition Trust.
3
6
Section 2. Interest Calculations.
Calculations of interest hereunder, including, without limitation,
calculations of interest at the Coupon Rate, which are made in respect of the
Loan Balance of a Mortgage Loan shall be made on a daily basis using any of the
following (i) a 360-day year comprised of twelve 30-day months, (ii) a 360-day
year and the actual number of days elapsed in the applicable interest period, or
(iii) a 365-day year and the actual number of days elapsed in the applicable
interest period, as required by the related Note.
Section 3. Transfers of Mortgage Loans.
From time to time in connection with the establishment of Advanta
Trusts, the Affiliated Originators and the Sponsor, intend to transfer Mortgage
Loans to the Sponsor and/or to the related Advanta Trust. Each such transfer
will be evidenced by a Conveyance Agreement in substantially the form of Exhibit
A hereto.
Section 4. Representations, Warranties and Covenants Regarding the
Affiliated Originators and the Sponsor.
(a) Each Affiliated Originator hereby represents and warrants to the
Sponsor, the Trustee and their respective successors and assigns that, as of the
date hereof;
(i) Such Affiliated Originator is a corporation (or, in the
case of Advanta National Bank USA, a national banking association, and,
in the case of Advanta Bank Corp., a Utah industrial loan corporation)
duly organized, validly existing and in good standing under the laws
governing its creation and existence and is in good standing as a
foreign corporation in each jurisdiction in which the nature of its
business, or the properties owned or leased by it make such
qualification necessary. Such Affiliated Originator has all requisite
corporate power and authority to own and operate its properties, to
carry out its business as presently conducted and as proposed to be
conducted, to enter into and discharge its obligations under this
Agreement and the Conveyance Agreements.
(ii) The execution and delivery of this Agreement by such
Affiliated Originator and its performance and compliance with the terms
of this Agreement and the Conveyance Agreements to which it is a party
have been duly authorized by all necessary corporate action on the part
of such Affiliated Originator and will not violate such Affiliated
Originator's Articles of Incorporation, Articles of Association or
Bylaws or constitute a default (or an event which, with notice or lapse
of time, or both, would constitute a default) under, or result in a
breach of, any material contract, agreement or other instrument to
which such Affiliated Originator or its properties is a party or by
which such Affiliated Originator is bound or violate any statute or any
order, rule or regulation of any court, governmental agency or body or
other tribunal having jurisdiction over such Affiliated Originator or
any of its properties.
(iii) This Agreement and the Conveyance Agreements to which
such Affiliated Originator is a party, assuming due authorization,
execution and
4
7
delivery by the other parties hereto and thereto, each constitutes a
valid, legal and binding obligation of such Affiliated Originator,
enforceable against it in accordance with the terms hereof, except as
the enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(whether considered in a proceeding or action in equity or at law).
(iv) Such Affiliated Originator is not in default with respect
to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which might
have consequences that would materially and adversely affect the
condition (financial or other) or operations of such Affiliated
Originator or its properties, or might have consequences that would
materially and adversely affect its performance hereunder and under the
other Conveyance Agreements to which such Affiliated Originator is a
party, or which would draw into question the validity of this Agreement
or the Mortgage Loans taken as a whole or of any action taken or to be
taken in connection with the obligations of the Affiliated Originator
contemplated herein.
(v) No litigation is pending or, to the best of such
Affiliated Originator's knowledge, threatened against such Affiliated
Originator which litigation might have consequences that would prohibit
its entering into this Agreement or any Conveyance Agreements to which
it is a party or might have consequences that would materially and
adversely affect its performance hereunder and under the Conveyance
Agreements to which such Affiliated Originator is a party.
(vi) Neither this Agreement nor any certificate of an officer,
statement furnished in writing or report delivered pursuant to the
terms hereof by such Affiliated Originator contains any untrue
statement of a material fact or omits to state any material fact
necessary to make the certificate, statement or report not misleading.
(vii) Upon the receipt of each Mortgage Loan and other items
of the Mortgage by the Trustee under this Agreement, the related
Advanta Trust will have good and marketable title to such Mortgage Loan
and such other items of the related Trust Estate free and clear of any
lien (other than liens which will be simultaneously released).
(viii) Neither such Affiliated Originator nor any affiliate
thereof will report on any financial statement any part of the
Servicing Fee as an adjustment to the sales price of the Mortgage
Loans.
(ix) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or agency
(other than any such actions, approvals,
5
8
etc., under any state securities laws, real estate syndication or "Blue
Sky" statutes, as to which such Affiliated Originator makes no such
representation or warranty), that are necessary or advisable in
connection with the sale of the Mortgage Loans and the execution and
delivery by such Affiliated Originator of this Agreement and the
Conveyance Agreements to which it is a party, have been duly taken,
given or obtained, as the case may be, are in full force and effect on
the date hereof, are not subject to any pending proceedings or appeals
(administrative, judicial or otherwise) and either the time within
which any appeal therefrom may be taken or review thereof may be
obtained has expired or no review thereof may be obtained or appeal
therefrom taken, and are adequate to authorize the consummation of the
transactions contemplated by this Agreement and the Conveyance
Agreements on the part of such Affiliated Originator and the
performance by such Affiliated Originator of its obligations under this
Agreement and such of the Conveyance Agreements to which it is a party.
(x) The origination practices used by such Affiliated
Originator with respect to the Mortgage Loans originated by such
Affiliated Originator have been, (i) in all material respects, legal,
proper, prudent and customary in the mortgage loan lending business and
(ii) in compliance with the Master Servicer's underwriting criteria as
described in the Prospectus.
(xi) The transactions contemplated by this Agreement are in
the ordinary course of business of such Affiliated Originator. The
transfer, assignment and conveyance of the Mortgage Notes and the
Mortgages by the Master Servicer pursuant to this Agreement are not
subject to the bulk transfer laws or any similar statutory provisions
in effect in any applicable jurisdiction.
(xii) Such Affiliated Originator received fair consideration
and reasonably equivalent value in exchange for the sale of the
interests in the Mortgage Loans.
(xiii) Such Affiliated Originator did not sell any interest in
any Mortgage Loan with any intent to hinder, delay or defraud any of
its respective creditors.
(xiv) Such Affiliated Originator is solvent, and such
Affiliated Originator will not be rendered insolvent as a result of the
sale of the Mortgage Loans to the related Advanta Trust.
The representations and warranties set forth in this paragraph (a) shall survive
the sale and assignment of the Mortgage Loans to the Sponsor.
In addition, each Affiliated Originator hereby covenants to perform the
obligations, if any, imposed upon it by the related Advanta Pooling Agreement.
6
9
(b) The Sponsor hereby represents and warrants to each Affiliated
Originator and the Trustee that, as of the date hereof:
(i) The Sponsor is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and has all licenses and qualifications necessary to carry on its
business as now being conducted and to perform its obligations
hereunder; the Sponsor has the power and authority to execute and
deliver this Agreement and to perform its obligations in accordance
herewith; the execution, delivery and performance of this Agreement
(including any Conveyance Agreement and any other instruments of
transfer to be delivered pursuant to this Agreement) by the Sponsor and
the consummation of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action and do not
violate the organization documents of the Sponsor, contravene or
violate any law, regulation, rule, order, judgement or decree to which
the Sponsor or its properties are subject or contravene, violate or
result in any breach of any provision of, or constitute a default
under, or result in the imposition of any lien on any assets of the
Sponsor pursuant to the provisions of, any mortgage, indenture,
contract, agreement or other undertaking to which the Sponsor is a
party or which purports to be binding upon Sponsor or any of Sponsor's
assets; this Agreement evidences the valid and binding obligation of
the Sponsor enforceable against the Sponsor in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditor's
rights generally or the application of equitable principles in any
proceeding, whether at law or in equity;
(ii) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or
agency, that are necessary in connection with the execution and
delivery by the Sponsor of this Agreement, have been duly taken, given
or obtained, as the case may be, are in full force and effect, are not
subject to any pending proceedings or appeals (administrative, judicial
or otherwise) and either the time within which any appeal therefrom may
be taken or review thereof may be obtained has expired or no review
thereof may be obtained or appeal therefrom taken, and are adequate to
authorize the consummation of the transactions contemplated by this
Agreement on the part of the Sponsor and the performance by the Sponsor
of its obligations under this Agreement;
(iii) There is no action, suit, proceeding or investigation
pending or, to the best of the Sponsor's knowledge, threatened against
the Sponsor which, either in any one instance or in the aggregate, may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Sponsor or in any
material impairment of the right or ability of the Sponsor to carry on
its business substantially as now conducted, or in any material
liability on the part of the Sponsor or which would draw into question
the validity of this Agreement or of any action taken or to be taken in
connection with the obligations
7
10
of the Sponsor contemplated herein, or which would be likely to impair
the ability of the Sponsor to perform under the terms of this
Agreement; and
(iv) The Sponsor has the right to cause or request the
transfer of the Mortgage Loans subject to a Warehouse Trust to an
Advanta Trust or to direct or request an Advanta Trust to acquire such
Mortgage Loans.
The representations and warranties set forth in this paragraph (b) shall survive
the sale and assignment of the Mortgage Loans to the Sponsor. Upon discovery of
a breach of any of the foregoing representations and warranties which materially
and adversely affects the interests of the Affiliated Originator, the Affiliated
Originator shall give prompt written notice to the Sponsor. Within 30 days of
its receipt of notice of breach, the Sponsor shall cure such breach in all
material respects.
Section 5. Representations and Warranties of the Affiliated Originators
Regarding the Mortgage Loans.
(a) Set forth in paragraph (b) below is a listing of representations and
warranties which will be deemed to have been made by each Affiliated Originator
in connection with each conveyance of a Pool to the Sponsor and/or the related
Advanta Trust. In addition, a Conveyance Agreement may, with respect to the
Mortgage Loans in the related Pool, delete or modify any of such representations
and warranties, or may add additional representations and warranties
("Additional Representations and Warranties"). The representations and
warranties listed in paragraph (b) below, together with any Additional
Representations and Warranties, are the "Representations and Warranties".
Reference to the Cut-Off Date are as of the Cut-Off Date set forth in the
related Conveyance Agreement with respect to a Mortgage Loan.
(b) With respect to each Mortgage Loan, each Affiliated Originator hereby
represents, warrants and covenants to the Sponsor and the Trustee, as of the
related Cut-Off Date, as follows, on which representations, warranties and
covenants the Trustee relies in accepting the Mortgage Loans:
(i) The information with respect to each Mortgage Loan set
forth in the Schedules of Mortgage Loans is true and correct as of the
Cut-Off Date;
(ii) All of the original or certified documentation required
to be delivered to the Trustee pursuant to the related Advanta Pooling
Agreement (including all material documents related thereto) with
respect to each Mortgage Loan has been or will be delivered to the
Trustee in accordance with the terms of such Advanta Pooling Agreement.
Each of the documents and instruments specified to be included therein
has been duly executed and in due and proper form, and each such
document or instrument is in a form generally acceptable to prudent
mortgage lenders that regularly originate or purchase mortgage loans
comparable to the Mortgage Loans for sale to prudent investors in the
secondary market that invest in mortgage loans such as the Mortgage
Loans.
8
11
(iii) Each Mortgage Loan being transferred to the Sponsor is a
Qualified Mortgage and is a Mortgage;
(iv) Each Property is improved by a single (one-to-four)
family residential dwelling, which may include manufactured homes which
qualify as eligible for inclusion in a REMIC, condominiums and
townhouses but shall not include cooperatives; provided, however, that
no more than 5.0% by aggregate principal balance of the Mortgage Loans
as of the Initial Cut-Off Date were leasehold mortgages.;
(v) No Mortgage Loan had a Combined Loan-to-Value Ratio in
excess of 100%;
(vi) Each Mortgage is either a valid and subsisting first,
second or third lien of record on the Property (subject in the case of
any Junior Mortgage Loan only to a Senior Lien on such Property) and
subject in all cases to the exceptions to title set forth in the title
insurance policy, with respect to the related Mortgage Loan, which
exceptions are generally acceptable to banking institutions in
connection with their regular mortgage lending activities, and such
other exceptions to which similar properties are commonly subject and
which do not individually, or in the aggregate, materially and
adversely affect the benefits of the security intended to be provided
by such Mortgage;
(vii) Immediately prior to the transfer and assignment herein
contemplated, each Affiliated Originator and each Warehouse Trust held
good and indefeasible title to, and was the sole owner of, each
Mortgage Loan conveyed by such Affiliated Originator or such Warehouse
Trust, as applicable, subject to no liens, charges, mortgages,
encumbrances or rights of others except liens which will be released
simultaneously with such transfer and assignment; and immediately upon
the transfer and assignment herein contemplated, the Trustee will hold
good and indefeasible title to, and be the sole owner of, each Mortgage
Loan subject to no liens, charges, mortgages, encumbrances or rights of
others except liens which will be released simultaneously with such
transfer and assignment;
(viii) As of the related Cut-Off Date, no Mortgage Loan is 30
or more days Delinquent, except for any portion of the Mortgage Loans
which the related Advanta Pooling Agreement permits to be more than 30
days Delinquent;
(ix) There is no delinquent tax or assessment lien or
mechanic's lien on any Property, and each Property is free of
substantial damage and is in good repair;
(x) There is no valid and enforceable right of rescission
offset, defense or counterclaim to any Note or Mortgage, including the
obligation of the related Mortgagor to pay the unpaid principal of or
interest on such Note or the defense of usury, nor will the operation
of any of the terms of the Mortgage Note
9
12
or the Mortgage, or the exercise of any right thereunder, render either
the Mortgage Note or the Mortgage unenforceable in whole or in part, or
subject to any right of rescission, set-off, counterclaim or defense,
including the defense of usury, and no such right of rescission,
set-off, counterclaim or defense has been asserted with respect
thereto;
(xi) There is no mechanics' lien or claim for work, labor or
material affecting any Property which is or may be a lien prior to, or
equal with, the lien of the related Mortgage except those which are
insured against by any title insurance policy referred to in paragraph
(xiii) below;
(xii) Each Mortgage Loan at the time it was made complied in
all material respects with all applicable state and federal laws and
regulations, including, without limitation, the federal
Truth-in-Lending Act and other consumer protection laws, real estate
settlement procedure, usury, equal credit opportunity, disclosure and
recording laws;
(xiii) With respect to each Mortgage Loan, a lender's title
insurance policy, issued in standard California Land Title Association
form or American Land Title Association form, or other form acceptable
in a particular jurisdiction by a title insurance company authorized to
transact business in the state in which the related Property is
situated, in an amount at least equal to the Original Principal Amount
of such Mortgage Loan insuring the mortgagee's interest under the
related Mortgage Loan as the holder of a valid first, second or third
mortgage lien of record on the real property described in the related
Mortgage, as the case may be, subject only to exceptions of the
character referred to in paragraph (vi) above, was effective on the
date of the origination of such Mortgage Loan, and, as of the Cut-Off
Date such policy will be valid and thereafter such policy shall
continue in full force and effect;
(xiv) The improvements upon each Property are covered by a
valid and existing hazard insurance policy (which may be a blanket
policy of the type described in the related Advanta Pooling Agreement)
with a generally acceptable carrier that provides for fire and extended
coverage representing coverage not less than the least of (A) the
outstanding principal balance of the related Mortgage Loan (together,
in the case of a Junior Mortgage Loan, with the outstanding principal
balance of the Senior Lien), (B) the minimum amount required to
compensate for damage or loss on a replacement cost basis or (C) the
full insurable value of the Property;
(xv) If the Mortgage Loan at the time of origination relates
to a Property in an area identified in the Federal Register by the
Federal Emergency Management Agency as having special flood hazards,
(which may be a blanket policy of the type described in the related
Advanta Pooling Agreement) a flood insurance policy in a form meeting
the requirements of the current guidelines of the Federal Insurance
Administration with a generally acceptable carrier is in effect with
respect to such Property in an amount representing coverage, and
10
13
which provides for a recovery by the Master Servicer of insurance
proceeds relating to such Mortgage Loan of not less than the least of
(i) the outstanding principal balance of the Mortgage Loan, (ii) the
minimum amount required to compensate for damage or loss on a
replacement cost basis and (iii) the maximum amount of insurance that
is available under the Flood Disaster Protection Act of 1973;
(xvi) Each Mortgage and Note is the legal, valid and binding
obligation of the maker thereof and is enforceable in accordance with
its terms, except only as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether considered in a proceeding or
action in equity or at law), and all parties to each Mortgage Loan had
full legal capacity to execute all documents relating to such Mortgage
Loan and convey the estate therein purported to be conveyed;
(xvii) Each Affiliated Originator has caused and will cause to
be performed any and all acts required to be performed to preserve the
rights and remedies of the servicer in any Insurance Policies
applicable to any Mortgage Loans delivered by such Affiliated
Originator or Warehouse Trust including, to the extent such Mortgage
Loan is not covered by a blanket policy described in the Advanta
Pooling Agreement, any necessary notifications of insurers, assignments
of policies or interests therein, and establishments of co-insured,
joint loss payee and mortgagee rights in favor of the servicer;
(xviii) Each original Mortgage was recorded or is in the
process of being recorded, and all subsequent assignments of the
original Mortgage have been recorded in the appropriate jurisdictions
wherein such recordation is necessary to perfect the lien thereof for
the benefit of the applicable Affiliated Originator, subject to the
provisions of Section [____] of the Advanta Pooling Agreement, (or are
in the process of being recorded);
(xix) The terms of each Note and each Mortgage have not been
impaired, altered or modified in any respect, except by a written
instrument which has been recorded, if necessary, to protect the
interest of the owners and which has been delivered to the Trustee. The
substance of any such alteration or modification is reflected on the
related Schedule of Mortgage Loans and has been approved by the primary
mortgage guaranty insurer, if any;
(xx) The proceeds of each Mortgage Loan have been fully
disbursed, and there is no obligation on the part of the mortgagee to
make future advances thereunder. Any and all requirements as to
completion of any on-site or off-site improvements and as to
disbursements of any escrow funds therefor have been complied with. All
costs, fees and expenses incurred in making or closing or recording
such Mortgage Loans were paid;
11
14
(xxi) Except as otherwise required by law or pursuant to the
statute under which the related Mortgage Loan was made, the related
Note is not and has not been secured by any collateral, pledged account
or other security except the lien of the corresponding Mortgage;
(xxii) No Mortgage Loan was originated under a buydown plan;
(xxiii) No Mortgage Loan provides for negative amortization,
has a shared appreciation feature, or other contingent interest
feature;
(xxiv) Each Property is located in the state identified in the
Schedule of Mortgage Loans and consists of one or more parcels of real
property with a residential dwelling erected thereon;
(xxv) Each Mortgage contains a provision for the acceleration
of the payment of the unpaid principal balance of the related Mortgage
Loan in the event the related Property is sold without the prior
consent of the mortgagee thereunder, except as may be otherwise
provided in the Advanta Pooling Agreement;
(xxvi) Any advances made after the date of origination of a
Mortgage Loan but prior to the Cut-Off Date, have been consolidated
with the outstanding principal amount secured by the related Mortgage,
and the secured principal amount, as consolidated, bears a single
interest rate and single repayment term reflected on the Schedule of
Mortgage Loans. The consolidated principal amount does not exceed the
original principal amount of the related Mortgage Loan. No Note permits
or obligates the Master Servicer, the Sub-Servicer or the Sponsor to
make future advances to the related Mortgagor at the option of the
Mortgagor;
(xxvii) There is no proceeding pending or threatened for the
total or partial condemnation of any Property, nor is such a proceeding
currently occurring, and each Property is undamaged by waste, fire,
earthquake or earth movement, flood, tornado or other casualty, so as
to affect adversely the value of the Property as security for the
Mortgage Loan or the use for which the premises were intended;
(xxviii) All of the improvements which were included for the
purposes of determining the Appraised Value of any Property lie wholly
within the boundaries and building restriction lines of such Property,
and no improvements on adjoining properties encroach upon such
Property, and, if a title insurance policy exists with respect to such
Property, are stated in such title insurance policy and affirmatively
insured;
(xxix) No improvement located on or being part of any Property
is in violation of any applicable zoning law or regulation. All
inspections, licenses and certificates required to be made or issued
with respect to all occupied portions of each Property and, with
respect to the use and occupancy of the same, including but not limited
to certificates of occupancy and fire underwriting certificates, have
12
15
been made or obtained from the appropriate authorities and such
Property is lawfully occupied under the applicable law;
(xxx) With respect to each Mortgage constituting a deed of
trust, a trustee, duly qualified under applicable law to serve as such,
has been properly designated and currently so serves and is named in
such Mortgage, and no fees or expenses are or will become payable by
the Sponsor or the related Trust to the trustee under the deed of
trust, except in connection with a trustee's sale after default by the
related Mortgagor;
(xxxi) With respect to each Junior Mortgage Loan, either (A)
no consent for such Mortgage Loan was required by the holder of the
related Senior Lien prior to the making of such Mortgage Loan or (B)
such consent has been obtained and is contained in the related File;
(xxxii) Each Mortgage contains customary and enforceable
provisions which render the rights and remedies of the holder thereof
adequate for the realization against the related Property of the
benefits of the security, including (A) in the case of a Mortgage
designated as a deed of trust, by trustee's sale and (B) otherwise by
judicial foreclosure. There is no homestead or other exemption
available which materially interferes with the right to sell the
related Property at a trustee's sale or the right to foreclose the
related Mortgage;
(xxxiii) Except as provided by clause (viii) of this Section,
there is no default, breach, violation or event of acceleration
existing under any Mortgage or the related Note and no event which,
with the passage of time or with notice and the expiration of any grace
or cure period, would constitute a default, breach, violation or event
of acceleration; and the applicable Affiliated Originator has not
waived any default, breach, violation or event of acceleration;
(xxxiv) Except for any Bulk Acquisition Loan, no instrument of
release or waiver has been executed in connection with any Mortgage
Loan, and no Mortgagor has been released, in whole or in part, except
in connection with an assumption agreement which has been approved by
the primary mortgage guaranty insurer, if any, and which has been
delivered to the Trustee;
(xxxv) Except for any Bulk Acquisition Loan, the maturity date
of each Mortgage Loan which is a Junior Mortgage Loan is at least
twelve months prior to the maturity date of the related first mortgage
loan if such first mortgage loan provides for a balloon payment;
(xxxvi) The credit underwriting guidelines applicable to each
Mortgage Loan conform in all material respects to the Sponsor's
underwriting guidelines;
(xxxvii) All parties to the Note and the Mortgage had legal
capacity to execute the Note and the Mortgage and each Note and
Mortgage have been duly and properly executed by such parties; and
13
16
(xxxviii)The related Affiliated Originator has no actual
knowledge that there exist on any Property any hazardous substances,
hazardous wastes or solid wastes, as such terms are defined in the
Comprehensive Environmental Response Compensation and Liability Act,
the Resource Conservation and Recovery Act of 1976, or other federal,
state or local environmental legislation.
(c) No Originator Payment Obligations. There is no obligation on the part of the
Servicer or any other party to make payments in addition to those made by the
Mortgagor except for delinquency.
The Representations and Warranties shall survive the transfer and
assignment of the Mortgage Loans to the related Advanta Trust. Upon discovery by
the Affiliated Originator or the Sponsor of a breach of any of the
Representations and Warranties, without regard to any limitation set forth in
such Representation or Warranty concerning the knowledge of the Affiliated
Originator as to the facts stated therein, which breach, in the opinion of the
Sponsor, materially and adversely affects the interests of the Sponsor, the
Owners or of the Certificate Insurer in the related Mortgage Loan or Mortgage
Loans, the party discovering such breach shall give prompt written notice to the
other party, and the related Affiliated Originator shall be required to take the
remedial actions required by the related Advanta Pooling Agreement within the
time periods required thereto. Each Affiliated Originator hereby acknowledges
that a breach of any of the Representations and Warranties listed in clauses
(iii), (x), (xvi) and (xxxviii) above a priori materially and adversely affects
the interests of the related Advanta Trust, the related Owners and the
Certificate Insurer.
Section 6. Authorized Representatives.
The names of the officers of the Affiliated Originators and of the Sponsor who
are authorized to give and receive notices, requests and instructions and to
deliver certificates and documents in connection with this Agreement on behalf
of the Affiliated Originator and of the Sponsor ("Authorized Representatives")
are set forth on Exhibit B. From time to time, the Affiliated Originator and the
Sponsor may, by delivering to the Trustee a revised exhibit, change the
information previously given, but the Trustee shall be entitled to rely
conclusively on the last exhibit until receipt of a superseding exhibit.
Section 7. Notices.
All demands, notices and communications relating to this Agreement shall be in
writing and shall be deemed to have been duly given when received by the other
party or parties at the address shown below, or such other address as may
hereafter be furnished to the other party or parties by like notice. Any such
demand, notice or communication hereunder shall be deemed to have been received
on the date delivered to or received at the premises of the addressee.
If to the Trustee:
[Trustee]
[Trustee's Address]
14
17
Telecopy: [(___) ___-____]
Telephone: [(___) ___-____]
If to the Affiliated Originators 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 the Affiliated Originators,
the Sponsor and the Trustee only by a written instrument executed by such
parties and with the prior written consent of the Certificate Insurer.
Section 12. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Agreement.
15
18
Section 13. No Agency; No Partnership or Joint Venture.
Neither the Affiliated Originators nor the Sponsor is the agent or
representative of the other, and nothing in this Agreement shall be construed to
make either the Affiliated Originator nor the Sponsor liable to any third party
for services performed by it or for debts or claims accruing to it against the
other party. Nothing contained herein nor the acts of the parties hereto shall
be construed to create a partnership or joint venture between the Sponsor and
the Affiliated Originator.
Section 14. Further Assurances.
The Affiliated Originators and Sponsor agree to cooperate reasonably and in good
faith with one another in the performance of this Agreement.
Section 15. The Certificate Insurer.
The Certificate Insurer is a third-party beneficiary of this Agreement. Any
right conferred to the Certificate Insurer shall be suspended during any period
in which the Certificate Insurer is in default in its payment obligation's under
the related Certificate Insurance Policies. During any period of suspension, the
Certificate Insurer's rights hereunder shall vest in the Owners of the related
Offered Certificates and shall be exercisable by the Owners of at least a
majority in Percentage Interest of the related Offered Certificates then
outstanding. At such time as the related Offered Certificates are no longer
Outstanding under the related Advanta Pooling Agreement and the Certificate
Insurer has been reimbursed for all Insured Payments to which it is entitled
under the related Advanta Pooling Agreement, the Certificate Insurer's rights
hereunder shall terminate.
Section 16. Maintenance of Records.
Each Affiliated Originator shall each continuously keep an original executed
counterpart of this Agreement in its official records.
16
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers, all as of the day and year first
above written.
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK
as Sellers and
ADVANTA CONDUIT RECEIVABLES, INC.
as Sponsor
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ADVANTA BANK CORP.
as Seller
By:
----------------------------------------
Name:
Title
[TRUSTEE],
as Trustee and not in its individual capacity
By:
----------------------------------------
Name:
Title:
[MASTER LOAN TRANSFER AGREEMENT]
17
20
ADVANTA MORTGAGE CONDUIT SERVICES,
INC. an Affiliate
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ADVANTA FINANCE CORP.
By:
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
[MASTER LOAN TRANSFER AGREEMENT]
18
21
EXHIBIT A
CONVEYANCE AGREEMENT
Advanta Mortgage Corp. USA, Advanta Mortgage Corp. Midatlantic, Advanta
Mortgage Corp. Midatlantic II, Advanta Mortgage Corp. Midwest, Advanta Mortgage
Corp. of New Jersey, Advanta Mortgage Corp. Northeast, Advanta Finance Corp.,
Advanta Bank Corp. and Advanta National Bank, (each, an "Affiliated
Originator"), Advanta Conduit Receivables, Inc., as Sponsor, and Advanta
Mortgage Conduit Services, Inc., as an Affiliate, pursuant to the Master Loan
Transfer Agreement dated as of [_____________, _____] among themselves and
[Trustee], as Trustee (the "Master Transfer Agreement"), hereby confirm their
understanding with respect to the conveyance by each Affiliated Originator, the
Warehouse Trusts the Affiliate and the Sponsor of those Mortgage Loans listed on
the attached Schedule of Mortgage Loans (the "Transferred Mortgage Loans") to
the Sponsor and /or the Advanta Mortgage Loan Trust _____-__.
Conveyance of Transferred Mortgage Loans.
Each Affiliated Originator, the Affiliate and the Sponsor, concurrently with the
execution and delivery of this Conveyance Agreement, does hereby irrevocably
transfer, assign, set over and otherwise convey, and does direct the Trustee to
convey to the Sponsor and/or the Advanta Mortgage Loan Trust - , without
recourse (except as otherwise explicitly provided for herein) all of its right,
title and interest in and to the Transferred Mortgage Loans being conveyed by
it, including specifically, without limitation, the Mortgages (as such term is
defined in the "related Advanta Pooling Agreement"), the Files and all other
documents, materials and properties appurtenant thereto and the Notes, including
all accrued interest and principal received by such Affiliated Originator on or
with respect to such Transferred Mortgage Loans on or after the related Cut-off
Date, together with all of its right, title and interest in and to the proceeds
received on or after the related Cut-off Date of any related mortgage insurance
policies (excluding any non-mortgage related or credit life insurance policies).
If an Affiliated Originator cannot deliver the original Mortgage or
mortgage assignment with evidence of recording thereon concurrently with the
execution and delivery of this Conveyance Agreement solely because of a delay
caused by the public recording office where such original Mortgage or mortgage
assignment has been delivered for recordation, such Affiliated Originator shall
promptly deliver to the Trustee such original Mortgage or mortgage assignment
with evidence of recording indicated thereon upon receipt thereof from the
public recording official.
The costs relating to the delivery of the documents specified in this
Conveyance Agreement shall be borne by each Affiliated Originator.
A-1
22
The Affiliated Originators hereby make the Representations and
Warranties set forth in Section 5(b) of the Master Transfer Agreement with
respect to the Transferred Mortgage Loans.
The "Cut-Off Date" with respect to such Transferred Mortgage Loans
shall be ________,______.
All terms and conditions of the Master Transfer Agreement are hereby
incorporated herein, provided that in the event of any conflict the provisions
of this Conveyance Agreement shall control over the conflicting provisions of
the Master Transfer Agreement.
For purposes of this Conveyance Agreement, the "related Advanta Pooling
Agreement" is the Pooling and Servicing Agreement dated as of _________,_____
relating to Advanta Mortgage Loan Trust ______-__.
A-2
23
Terms capitalized herein and not defined herein shall have their
respective meanings as set forth in the Master Transfer Agreement.
ADVANTA MORTGAGE CORP. USA
ADVANTA MORTGAGE CORP. MIDATLANTIC
ADVANTA MORTGAGE CORP. MIDATLANTIC II
ADVANTA MORTGAGE CORP. MIDWEST
ADVANTA MORTGAGE CORP. OF NEW JERSEY
ADVANTA MORTGAGE CORP. NORTHEAST
ADVANTA NATIONAL BANK.
as Affiliated Originators
and
ADVANTA CONDUIT RECEIVABLES, INC.
as Sponsor
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
ADVANTA BANK CORP.
as an Affiliated Originator
By:
----------------------------------------
ADVANTA MORTGAGE CONDUIT SERVICES,
INC., as an Affiliate
By:
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
[TRUSTEE], as Trustee
By:
----------------------------------------
Name:
Title:
ADVANTA FINANCE CORP.
By:
----------------------------------------
Name:
Title:
Dated:
A-3
24
EXHIBIT B
AUTHORIZED REPRESENTATIVES
Reference is hereby made to the Master Loan Transfer Agreement, dated
as of [_______________, _____] (the "Agreement"), among Advanta Mortgage Corp.
USA, Advanta Mortgage Corp. Midatlantic, Advanta Mortgage Corp. Midatlantic II,
Advanta Mortgage Corp. Midwest, Advanta Mortgage Corp. of New Jersey, Advanta
Mortgage Corp. Northeast, Advanta Finance Corp., Advanta Bank Corp. and Advanta
National Bank, as Affiliated Originators, Advanta Conduit Receivables, Inc., as
Sponsor, Advanta Mortgage Conduit Services, Inc., as an Affiliate and [Trustee],
as Trustee:
The following are the Affiliated Originators' Authorized
Representatives for purposes of the Agreement:
Name Title
---- -----
[▇▇▇▇▇▇▇ ▇▇▇▇] [Vice President]
[▇▇▇▇▇ ▇▇▇▇▇▇▇] [Vice President]
The following are the Sponsor's Authorized Representatives for purposes
of the Agreement:
Name Title
---- -----
[▇▇▇▇▇▇▇ ▇▇▇▇] [Vice President]
[▇▇▇▇▇ ▇▇▇▇▇▇▇] [Vice President]
B-1