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Exhibit 4.4
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MORTGAGE LOAN TRANSFER AGREEMENT
by and among
ADVANTA MORTGAGE CORP. USA,
ADVANTA MORTGAGE CONDUIT SERVICES, INC.,
ADVANTA MORTGAGE CORP. MIDWEST,
ADVANTA MORTGAGE CORP. NORTHEAST,
ADVANTA NATIONAL BANK,
ADVANTA BANK CORP.,
ADVANTA FINANCE CORP.,
as Affiliated Originators
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
and
ADVANTA CONDUIT RECEIVABLES, INC.,
as Sponsor
Dated as of August 1, 1999
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS.........................................................................1
SECTION 2. INTEREST CALCULATIONS...............................................................3
SECTION 3. TRANSFERS OF MORTGAGE LOANS.........................................................3
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS REGARDING THE AFFILIATED
ORIGINATORS AND THE SPONSOR.........................................................3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE AFFILIATED ORIGINATORS REGARDING THE
MORTGAGE LOANS......................................................................7
SECTION 6. AUTHORIZED REPRESENTATIVES.........................................................11
SECTION 7. NOTICES............................................................................12
SECTION 8. GOVERNING LAW......................................................................12
SECTION 9. ASSIGNMENT.........................................................................12
SECTION 10. COUNTERPARTS.......................................................................12
SECTION 11. AMENDMENT..........................................................................12
SECTION 12. SEVERABILITY OF PROVISIONS.........................................................12
SECTION 13. NO AGENCY; NO PARTNERSHIP OR JOINT VENTURE.........................................13
SECTION 14. FURTHER ASSURANCES.................................................................13
SECTION 15. THE CERTIFICATE INSURER............................................................13
SECTION 16. MAINTENANCE OF RECORDS.............................................................13
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THIS MORTGAGE LOAN TRANSFER AGREEMENT, dated as of August 1,
1999, between Advanta Mortgage Corp. USA, Advanta Mortgage Conduit Services,
Inc., Advanta Mortgage Corp. Midwest, Advanta Mortgage Corp. Northeast, Advanta
Finance Corp., Advanta Bank Corp. and Advanta National Bank, each as a seller
(each, an "Affiliated Originator" and collectively, the " Affiliated
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 Affiliated Originator is an originator or
purchaser of mortgage loans; and
WHEREAS, the Affiliated Originators and the Sponsor expect,
from time to time, to cause such mortgage loans to be conveyed to the 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 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.
Bulk Acquisition Loan: Any Mortgage Loan purchased by an
Affiliated Originator as part of a bulk portfolio acquisition.
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.
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.
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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.
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 were 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,
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 August 1, 1999, by and among Advanta Conduit Receivables,
Inc. as Sponsor, 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.
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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
Trust and the Mortgage Loan.
Schedule of Mortgage Loans: The Schedule of Mortgage Loans
required to be delivered pursuant to the Pooling and Servicing Agreement.
Trust: Advanta Mortgage Loan Trust 1999-3, the trust created
under the Pooling and Servicing Agreement.
Trustee: Bankers Trust Company of California, N.A., located on
the date of execution of this Agreement at 3 Park Plaza, Irvine, California
92614, a national banking association, 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, or (iii) a 365-day year and the actual number of
days elapsed in the applicable interest period, as specified in the related
Note.
SECTION 3 Transfers of Mortgage Loans. From time to time the
Affiliated Originators intend to transfer Mortgage Loans to the Sponsor pursuant
to a Conveyance Agreement in substantially the form of Exhibit A hereto. 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 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, 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 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 each Conveyance Agreement.
(ii) The execution and delivery of this Agreement by each
Affiliated 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
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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 each Conveyance Agreement to which
such Affiliated Originator is a party, assuming due authorization,
execution and delivery by the other parties hereto and thereto, each
constitutes a valid, legal and binding obligation of such Affiliated
Originator, enforceable against it in accordance with the terms hereof,
except as the enforcement thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general principles of
equity (whether considered in a proceeding or action in equity or at
law).
(iv) Such Affiliated Originator is not in default with respect
to any order or decree of any court or any order, regulation or demand
of any federal, state, municipal or governmental agency, which might
have consequences that would materially and adversely affect the
condition (financial or other) or operations of such Affiliated
Originator or its properties, or might have consequences that would
materially and adversely affect its performance hereunder and under
each Conveyance Agreement 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 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 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 File by the Trustee
under this Agreement, the Trust will have good and marketable title to
such Mortgage Loan
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and such other items of the Mortgage File free and clear of any lien
(other than liens which will be simultaneously released).
(viii) Such Affiliated Originator nor any affiliate thereof
will report on any financial statement any part of the Servicing Fee as
an adjustment to the sales price of the Mortgage Loans.
(ix) All actions, approvals, consents, waivers, exemptions,
variances, franchises, orders, permits, authorizations, rights and
licenses required to be taken, given or obtained, as the case may be,
by or from any federal, state or other governmental authority or agency
(other than any such actions, approvals, etc., under any state
securities laws, real estate syndication or "Blue Sky" statutes, as to
which such Affiliated Originator makes no such representation or
warranty), that are necessary or advisable in connection with the sale
of the Mortgage Loans and the execution and delivery by such Affiliated
Originator of this Agreement and 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 Affiliated
Originator and the performance by such Affiliated Originator of its
obligations under this Agreement and each Conveyance Agreement to which
it is a party.
(x) The origination practices used by such Affiliated
Originator with respect to the Mortgage Loans have been, (i) in all
material respects, legal, proper, prudent and customary in the mortgage
loan lending business and (ii) in compliance with 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 Affiliated 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 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 will not be
rendered insolvent as a result of the sale of the Mortgage Loans to the
Trust.
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The representations and warranties set forth in this Section
4(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 Pooling and Servicing
Agreement.
(b)The Sponsor hereby represents and warrants to each
Affiliated Originator and the Trustee that, as of the date hereof:
(i) The Sponsor is a corporation duly organized, validly
existing and in good standing under the laws of the State of 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
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in the business, operations, financial condition, properties
or assets of the Sponsor or in any material impairment of the right or
ability of the Sponsor to carry on its business substantially as now
conducted, or in any material liability on the part of the Sponsor or
which would draw into question the validity of this Agreement or of any
action taken or to be taken in connection with the obligations of the
Sponsor contemplated herein, or which would be likely to impair the
ability of the Sponsor to perform under the terms of this Agreement.
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 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 Section 5(b) below is
a listing of representations and warranties which will be deemed to have been
made by each Affiliated Originator in connection with the Mortgage Loans such
Affiliated Originator will convey to the Sponsor and/or the Trust. 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, 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 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.
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(iii) Each Mortgage Loan being transferred to the Sponsor is a
Qualified Mortgage;
(iv) Each Property is improved by a single (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;
(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 Affiliated Originator held good and indefeasible
title to, and was the owner of, each Mortgage Loan conveyed by such
Affiliated Originator. 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;
(iv) To the best knowledge of such Affiliated 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 Affiliated 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
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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) To the best knowledge of such Affiliated 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 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, 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 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 proceeds
relating to
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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 Master Servicer in any Mortgage Insurance
Policy applicable to any Mortgage Loan delivered by such Affiliated
Originator including, to the extent such Mortgage Loan is not covered
by a blanket 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 Affiliated 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 Affiliated Originator, no
Mortgage Loan was originated under a buydown plan;
(xxiii) To the best knowledge of such Affiliated 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 Affiliated 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 Affiliated 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
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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 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 Affiliated
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 Affiliated
Originator has not waived any default, breach, violation or event of
acceleration;
(xxxiv) To the best knowledge of such Affiliated 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 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 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.
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(c) No Affiliated Originator Payment Obligations. There is no
obligation on the part of the Master Servicer 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
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 related 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 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 Pooling and Servicing Agreement within
the time periods required therein. No Affiliated Originator shall be obliged to
act in regard to Mortgage Loans not conveyed by it. Each Affiliated Originator
hereby acknowledges that a breach of any of the Representations and Warranties
listed in paragraph (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 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 each Affiliated
Originator and of the Sponsor ("Authorized Representatives") are set forth on
Exhibit B. From time to time, each Affiliated Originator and the Sponsor may, by
delivering to the Trustee a revised exhibit, change the information previously
given, but the Trustee shall be entitled to rely conclusively on the last
exhibit until receipt of a superseding exhibit.
SECTION 7 Notices. All demands, notices and communications
relating to this Agreement shall be in writing and shall be deemed to have been
duly given when received by the other party or parties at the address shown
below, or such other address as may hereafter be furnished to the other party or
parties by like notice. Any such demand, notice or communication hereunder shall
be deemed to have been received on the date delivered to or received at the
premises of the addressee.
If to the Trustee:
Bankers Trust Company of California, N.A.
3 Park Plaza
Irvine, CA 92614
Telecopy: (949) 253-7577
Telephone: (949) 253-7575
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If to any Affiliated Originator or the Sponsor:
Advanta Mortgage Corp. USA
10790 Rancho Bernardo Road
San Diego, California 92127
Attention: Mortgage Structured Finance
Telecopy: (858) 674-3592
Telephone: (858) 676-3099
SECTIONS 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 Affiliated 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 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
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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 Affiliated 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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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 MORTGAGE CONDUIT SERVICES, INC.,
ADVANTA MORTGAGE CORP. MIDWEST,
ADVANTA MORTGAGE CORP. NORTHEAST,
ADVANTA FINANCE CORP.,
ADVANTA NATIONAL BANK,
as Sellers
By: /s/ Michael Coco
-------------------------------
Name: Michael Coco
Title: Vice President
ADVANTA BANK CORP.,
as Seller
By: /s/ Mark Hales
-------------------------------
Name: Mark Hales
Title: Vice President
ADVANTA CONDUIT RECEIVABLES, INC.,
as Sponsor
By: /s/ Michael Coco
-------------------------------
Name: Michael Coco
Title: Vice President
BANKERS TRUST COMPANY OF
CALIFORNIA, N.A., as
Trustee and not in its
individual capacity
By: /s/ Mark McNeill
-------------------------------
Name: Mark McNeill
Title: