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EXHIBIT 1.1
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EXECUTION COPY
ADVANTA MORTGAGE CONDUIT SERVICES, INC.
ADVANTA REVOLVING HOME EQUITY LOAN ASSET-BACKED NOTES,
SERIES 1999-A
VARIABLE RATE CLASS A NOTES
UNDERWRITING AGREEMENT
May 18, 1999
Bear, Stearns & Co. Inc.
(for itself and the other Underwriter
named in Schedule I hereto)
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
Advanta Mortgage Conduit Services, Inc., as Sponsor (the "Sponsor"),
has authorized the issuance and sale of Advanta Revolving Home Equity Loan
Asset-Backed Notes, Series 1999-A, Class A (the "Notes"). The Notes will be
issued pursuant to an indenture (the "Indenture"), dated as of May 1, 1999,
between Advanta Revolving Home Equity Loan Trust 1999-A (the "Trust") and
Bankers Trust Company of California, N.A., as Indenture Trustee (the "Indenture
Trustee"). The Trust will be formed pursuant to a trust agreement (the "Trust
Agreement"), dated as of May 1, 1999, among the Sponsor, Advanta Holding Trust
1999-A ("Holding") and Wilmington Trust Company, as Owner Trustee. The Notes
will be secured by certain adjustable rate home equity revolving credit line
loans (the "Mortgage Loans") made pursuant to certain home equity revolving
credit line loan agreements (the "Credit Line Agreements") to be transferred or
caused to be transferred by the Sponsor to Holding and by Holding to the Trust
pursuant to a sale and servicing agreement (the "Sale and Servicing Agreement"),
dated as of May 1, 1999, among the Sponsor, Holding, the Trust, Advanta Mortgage
Corp. USA, as Master Servicer (the "Master Servicer"), and the Indenture
Trustee. Holding, whose beneficial ownership interests will initially be held by
Advanta National Bank (the "Bank") and Advanta Finance Residual Corp. ("AFRC") a
special-purpose finance subsidiary of Advanta Finance Corp. ("AFC" together with
the Bank, the "Originators"). Such beneficial ownership interests in Holding
represent the remaining undivided interest in the assets of the Trust (the
"Residual Interest"), and may be sold or pledged at any time,
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subject to certain conditions specified in the Trust Agreement. The Notes will
be issued on May 27, 1999 (the "Closing Date") in the aggregate original
principal amount (approximately) of $247,500,000. The Notes and the Residual
Interest are more fully described in a registration statement which the Sponsor
has furnished or will furnish to the underwriters named in Schedule I hereto
(the "Underwriters").
On or prior to the date of issuance of the Notes, the Sponsor will
obtain a guaranty insurance policy (the "Policy") issued by Ambac Assurance
Corporation (the "Insurer"), which will unconditionally and irrevocably
guarantee to the Indenture Trustee for the benefit of the Noteholders the timely
payment of interest on and ultimate payment of principal of the Notes, excluding
certain amounts as specified in the Documents (as defined below). Concurrently
therewith, the Sponsor will enter into an Insurance and Reimbursement Agreement
(the "Insurance Agreement"), dated as of May 1, 1999 among the Sponsor, the
Insurer, the Master Servicer, the Originators, Holding, the Trust, the Indenture
Trustee and the Owner Trustee, governing certain matters relating to the
issuance of the Policy. The Sponsor will also enter into an Indemnification
Agreement, dated as of May 18, 1999 (the "Indemnification Agreement"), among the
Sponsor, the Underwriters and the Insurer.
As used herein, the "Documents" shall mean the Indenture, the Trust
Agreement, the Holding Trust Agreement, the Sale and Servicing Agreement, the
Underwriting Agreement, the Insurance Agreement and the Indemnification
Agreement. Capitalized terms used but not defined herein shall have the meanings
given to them in the Sale and Servicing Agreement.
SECTION 1. Representations and Warranties of the Sponsor and the
Originator. The Sponsor and the Originators each represent and warrant to, and
agree with each Underwriter that:
A. The Sponsor has filed with the Securities and Exchange
Commission (the "Commission"), a registration statement (No. 333-77927)
on Form S-3 for the registration under the Securities Act of 1933, as
amended (the "Act"), of Mortgage Loan Asset Backed Certificates and
Notes (issuable in series), which registration statement, as amended at
the date hereof, has become effective. Such registration statement, as
amended to the date of this Agreement, meets the requirements set forth
in Rule 415(a)(1)(vii) under the Act and complies in all other material
respects with such Rule. The Sponsor proposes to file with the
Commission pursuant to Rule 424(b)(5) under the act a supplement dated
May 18, 1999 to the prospectus dated May 6, 1999 relating to the Notes
and the method of distribution thereof and has previously advised or
will advise you of all further information (financial and other) with
respect to the Notes to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the date
hereof, is hereinafter called the "Registration Statement"; such
prospectus dated May 6, 1999, in the form in which it will be filed
with the Commission pursuant to Rule 424(b)(5) under the Act is
hereinafter called the "Basic Prospectus"; such supplement dated May
18, 1999 to the Basic Prospectus, in the form in which it will be filed
with the Commission pursuant to Rule 424(b)(5) of
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the Act, is hereinafter called the "Prospectus Supplement"; and the
Basic Prospectus and the Prospectus Supplement together are hereinafter
called the "Prospectus." The Sponsor will file with the Commission (i)
promptly after receipt from each Underwriter of any Computational
Materials (as defined herein) (and in any event no later than the
Business Day on which the Prospectus Supplement is made available to
the Underwriter), a Form 8-K incorporating such Computational Materials
and (ii) within fifteen days of the issuance of the Notes a report on
Form 8-K setting forth specific information concerning the related
Mortgage Loans (the "8-K").
B. The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder. The Registration Statement, as of the Effective Date
thereof and of any amendment thereto, did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as of its date and as amended or
supplemented as of the Closing Date (as hereinafter defined), does not
and will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with
written information furnished to the Sponsor in writing by the
Underwriters expressly for use therein. As used in this Agreement,
"Effective Time" means the date and the time as of which such
Registration Statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time.
C. The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
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D. Since the respective dates as of which information is given
in the Prospectus, there has not been any material adverse change in
the general affairs, management, financial condition, or results of
operations of the Sponsor or any of the Originators, except as set
forth or contemplated in the Prospectus as supplemented or amended as
of the Closing Date.
E. Each of the Sponsor and the Originators has been duly
incorporated and is validly existing as a corporation or national
banking association, as the case may be, in good standing under the
laws of its jurisdiction of incorporation, is duly qualified to do
business and is in good standing as a foreign corporation or national
banking association in each jurisdiction in which its ownership or
lease of property or the conduct of its business requires such
qualification, and has all power and authority necessary to own or hold
its properties, to conduct the business in which it is engaged and to
enter into and perform its obligations under the Documents to which it
is a party, and to cause the Notes to be issued.
F. There are no actions, proceedings or investigations pending
before or threatened by any court, administrative agency or other
tribunal to which the Sponsor or any Originator is a party or of which
any of its properties is the subject (a) which if determined adversely
to the Sponsor or such Originator would have a material adverse effect
on the business or financial condition of the Sponsor or such
Originator (as applicable), (b) which asserts the invalidity of the
Documents or the Notes, (c) which seeks to prevent the issuance of the
Notes or the consummation by the Sponsor or such Originator of any of
the transactions contemplated by the Documents to which it is a party
or (d) which might materially and adversely affect the performance by
the Sponsor or such Originator of its obligations under, or the
validity or enforceability of, the Documents to which it is a party or
the Notes.
G. The Documents, when executed and delivered as contemplated
hereby and thereby, will have been duly authorized, executed and
delivered by the Sponsor or any Originator, as the case may be, and
will constitute legal, valid and binding instruments enforceable
against the Sponsor or such Originator in accordance with their
respective terms, subject as to enforceability to (x) applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally, (y) general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and (z) with respect to rights of indemnity under
this Agreement, the Indemnification Agreement, the Insurance Agreement
and the limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of the Documents by
the Sponsor and the Originators, as the case may be, and the
consummation of the transactions contemplated hereby and thereby, and
the issuance and delivery of the Notes do not and will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to
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which the Sponsor or any of the Originators is a party, by which the
Sponsor or any of the Originators is bound or to which any of the
property or assets of the Sponsor, any of the Originators or any of
their respective subsidiaries are subject, nor will such actions result
in any violation of the provisions of the articles of incorporation or
by-laws of the Sponsor or any of the Originators or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Sponsor or any of the Originators or any
of their respective properties or assets.
I. Arthur Andersen LLP are independent public accountants with
respect to the Sponsor and the Originators as required by the Act and
the Rules and Regulations.
J. The direction by the Sponsor to the Indenture Trustee to
execute, authenticate, issue and deliver the Notes has been or will be
duly authorized by the Sponsor, and assuming the Indenture Trustee has
been duly authorized to do so, when executed, authenticated, issued and
delivered by the Indenture Trustee in accordance with the Indenture,
the Notes will be validly issued and outstanding and will be entitled
to the benefits provided by the Indenture.
K. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of
the United States is required for the issuance of the Notes and the
sale of the Notes to the Underwriters, or the consummation by the
Sponsor or the Originators of the other transactions contemplated by
the Documents, except such consents, approvals, authorizations,
registrations or qualifications as may be required under State
securities or "blue sky" laws in connection with the purchase and
distribution of the Notes by the Underwriters or as have been obtained.
L. Each Originator possesses all material licenses,
certificates, authorities or permits issued by the appropriate State,
Federal or foreign regulatory agencies or bodies necessary to conduct
the business now conducted by it and as described in the Prospectus,
and such Originator has not received notice of any proceedings relating
to the revocation or modification of any such license, certificate,
authority or permit which if decided adversely to such Originator
would, singly or in the aggregate, materially and adversely affect the
conduct of its business, operations or financial condition.
M. At the time of execution and delivery of the Sale and
Servicing Agreement, the Sponsor will or cause the Trust to: (i) have
good title to the interest in the Mortgage Loans and the other rights
and properties to be conveyed by the Sponsor thereunder, free and clear
of any lien, mortgage, pledge, charge, encumbrance, adverse claim or
other security interest (collectively, "Liens"); (ii) except as
provided in the Documents, not have assigned to any person any of its
right, title or interest in the Mortgage Loans, in the Sale and
Servicing Agreement or in the Notes being issued pursuant thereto; and
(iii) have the power and authority to sell its interest in the Mortgage
Loans or cause the sale of the
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Mortgage Loans to Holding and to sell the Notes to the Underwriters.
Upon execution and delivery of the Sale and Servicing Agreement and the
Indenture by the respective parties thereto, the Indenture Trustee will
have acquired all of the Sponsor's right, title and interest in and to
the Mortgage Loans (excluding any payments of interest collected prior
to the Cut-Off Date). Upon delivery to the Underwriters of the Notes,
the Underwriters will have good title to the Notes, free of any Liens.
N. As of opening of business on May 1, 1999 (the "Cut-Off
Date"), each of the Mortgage Loans identified on the Closing Date will
meet the eligibility criteria described in the Prospectus Supplement
and will conform to the descriptions thereof contained in the
Prospectus Supplement.
O. None of the Sponsor, the Originators, Holding or the Trust
is an "investment company" within the meaning of such term under the
Investment Company Act of 1940 (the "1940 Act") and the rules and
regulations of the Commission thereunder.
P. At the Closing Date, the Notes and the Indenture will
conform in all material respects to the descriptions thereof contained
in the Prospectus.
Q. At the Closing Date, the Notes shall have been rated in the
highest rating category by at least two nationally recognized rating
agencies.
R. Any applicable taxes, fees and other governmental charges
in connection with the execution, delivery and issuance of the
Documents and the Notes have been paid or will be paid at or prior to
the Closing Date.
S. At the Closing Date, each of the representations and
warranties of the Sponsor set forth in the Sale and Servicing
Agreement, the Insurance Agreement and the Indemnification Agreement
will be true and correct in all material respects.
Any certificate signed by an officer of the Sponsor or any of the
Originators and delivered to the Underwriters or counsel for the Underwriters in
connection with an offering of the Notes shall be deemed, and shall state that
it is, a representation and warranty as to the matters covered thereby to each
person to whom the representations and warranties in this Section 1 are made.
SECTION 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Notes pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth. The Sponsor agrees to
instruct the Trust to issue and agrees to sell to the Underwriters and each
Underwriter agrees (except as provided in Sections 6 and 10 hereof) to purchase
from the Sponsor, the Notes in the aggregate initial principal amount or amounts
set forth on Schedule A at the purchase price or prices set forth in Schedule A.
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SECTION 3. Delivery and Payment. Delivery of and payment for the Notes
to be purchased by the Underwriters shall be made at the offices of Brown & Wood
LLP, One World Trade Center New York, New York 10048-0557, at 10:00 A.M. New
York City time on the Closing Date or at such other time or date as shall be
agreed upon in writing by the Underwriters, the Sponsor and the Originators.
Payment shall be made to the Sponsor and the Originators (in such proportions as
they shall jointly advise the Underwriters in writing) by wire transfer of same
day funds payable to such accounts as they shall designate in writing. Delivery
of the Notes shall be made to each Underwriter against payment of the purchase
price thereof. The Notes shall be in such denominations and registered in such
names as the Underwriters may request in writing at least two business days
prior to the Closing Date. The Notes will be made available for examination by
the Underwriters no later than 4:00 P.M. New York City time on the first
business day prior to the Closing Date.
SECTION 4. Offering by the Underwriters. It is understood that, subject
to the terms and conditions hereof, the Underwriters proposes to offer the Notes
for sale to the public as set forth in the Prospectus.
SECTION 5. Covenants of the Sponsor and the Originators. With respect
to the issuance of the Notes, the Sponsor and the Originators agree as follows:
A. To prepare the Prospectus in a form approved by the
Underwriter and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the first use of the Prospectus; to make no
further amendment or any supplement to the Registration Statement or to
the Prospectus prior to the Closing Date except as permitted herein and
with respect to Advanta Mortgage Loan Trust 1999-2; to advise the
Underwriters, promptly after they receive notice thereof, of the time
when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriters with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Sponsor with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and, for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Notes, to promptly advise the Underwriters of
its receipt of notice of the issuance by the Commission of any stop
order or of: (i) any order preventing or suspending the use of the
Prospectus; (ii) the suspension of the qualification of the Notes for
offering or sale in any jurisdiction; (iii) the initiation of or threat
of any proceeding for any such purpose; (iv) any request by the
Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information. In the event
of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such
qualification, the Sponsor promptly shall use its best efforts to
obtain the withdrawal of such order or suspension.
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B. To furnish promptly to the Underwriters and to counsel for
the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and of each amendment thereto
filed with the Commission, including all consents and exhibits filed
therewith.
C. To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission and each amendment thereto (in each case including
exhibits); (ii) the Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference in the
Prospectus (including exhibits thereto). If the delivery of a
prospectus is required at any time prior to the expiration of nine
months after the Effective Time in connection with the offering or sale
of the Notes, and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act, the Sponsor shall notify the Underwriters and, upon the
Underwriters' request, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities as
many copies as the Underwriters may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which corrects such statement or omission or effects such compliance,
and in case the Underwriters are required to deliver a Prospectus in
connection with sales of any of the Notes at any time nine months or
more after the Effective Time, upon the request of the Underwriters but
at the expense of the Underwriters, the Sponsor shall prepare and
deliver to the Underwriters as many copies as the Underwriters may
reasonably request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act.
D. To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Sponsor or the
Underwriters, be required by the Act or requested by the Commission.
E. Prior to filing with the Commission any (i) amendment to
the Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus or (ii) Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Underwriters and counsel for the Underwriters and obtain the
consent of the Underwriters to the filing.
F. RESERVED
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G. To use their best efforts, in cooperation with the
Underwriters, to qualify the Notes for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Underwriter may designate, and maintain or
cause to be maintained such qualifications in effect for as long as may
be required for the distribution of the Notes. The Sponsor will file or
cause the filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Notes have been so
qualified.
H. Not, without the Underwriters' prior written consent, to
publicly offer or sell or contract to sell any mortgage pass-through
securities, collateralized mortgage obligations or other similar
securities representing interests in or secured by other
mortgage-related assets originated or owned by the Sponsor for a period
of 5 business days following the commencement of the offering of the
Notes to the public other than the Sponsor's "Advanta Mortgage Loan
Trust 1999-2" Offering, to which the Underwriters specifically consent.
I. So long as the Notes shall be outstanding, to deliver to
the Underwriters as soon as such statements are furnished to the
Indenture Trustee the annual statement as to compliance delivered to
the Indenture Trustee pursuant to Section 3.9 of the Indenture.
J. To apply the net proceeds from the sale of the Notes in the
manner set forth in the Prospectus.
SECTION 6. Conditions to the Obligations of the Underwriters. The
obligation of the Underwriters to purchase the Notes pursuant to this Agreement
is subject to: (i) the accuracy on and as of the Closing Date of the
representations and warranties on the part of the Sponsor and the Originators
herein contained; (ii) the performance by the Sponsor and the Originators of all
of their respective obligations hereunder; and (iii) the following conditions as
of the Closing Date:
A. The Underwriters shall have received confirmation of the
effectiveness of the Registration Statement. No stop order suspending
the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission. Any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus shall have been complied with.
B. The Underwriters shall not have discovered and disclosed to
the Sponsor on or prior to the Closing Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact or omits to state a fact which,
in the opinion of Brown & Wood LLP, counsel for the Underwriters, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
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C. All corporate proceedings and other legal matters relating
to the authorization, form and validity of the Documents, the Notes,
the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all respects to counsel for the
Underwriters, and the Sponsor shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
D. The Underwriters shall have received the favorable opinion
of Dewey Ballantine LLP, special counsel to the Sponsor and the
Originators with respect to the following items, dated the Closing
Date, to the effect that:
1. Each of the Sponsor and the Originators has been duly
organized and is validly existing as a corporation or national banking
association, as the case may be, in good standing under the laws of its
jurisdiction of incorporation, and is qualified to do business in each
state necessary to enable it to perform its obligations as Sponsor or
Originator, as the case may be, under the Documents to which it is a
party. Each of the Sponsor and the Originators has the requisite power
and authority to execute and deliver, engage in the transactions
contemplated by, and perform and observe the conditions of the
Documents to which it is a party.
2. The Documents to which the Sponsor or any Originator is a
party have been duly and validly authorized, executed and delivered by
the Sponsor or such Originator, as the case may be, and all requisite
corporate action by the Sponsor or such Originator has been taken with
respect thereto, and the Notes constitute the valid, legal and binding
agreement of the Trust.
3. Neither the transfer of the Mortgage Loans to the Trust,
the issuance or sale of the Notes nor the execution, delivery or
performance by the Sponsor or such Originator of the Documents to which
it is a party (A) conflicts or will conflict with or results or will
result in a breach of, or constitutes or will constitute a default
under, (i) any term or provision of the certificate of incorporation or
by-laws of the Sponsor or such Originator; (ii) any term or provision
of any material agreement, contract, instrument or indenture, to which
the Sponsor or such Originator is a party or is bound and known to such
counsel; or (iii) any order, judgment, writ, injunction or decree of
any court or governmental agency or body or other tribunal having
jurisdiction over the Sponsor or such Originator and known to such
counsel; or (B) results in, or will result in the creation or
imposition of any lien, charge or encumbrance upon any of the Trust's
assets or upon the Notes, except as otherwise contemplated by the Sale
and Servicing Agreement.
4. With respect to the Mortgage Loans, the endorsement and
delivery of each Credit Line Agreement, and the preparation, delivery
and recording of an Assignment, in each case with respect to each
Mortgage, is sufficient to fully transfer to the Indenture Trustee for
the benefit of the Noteholders all right, title
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and interest of the Sponsor or its affiliates in the Credit Line
Agreement and Mortgage, as noteholder and mortgagee or assignee
thereof, subject to any exceptions set forth in such opinion, and will
be sufficient to permit the Indenture Trustee to avail itself of all
protection available under applicable law against the claims of any
present or future creditors of the Sponsor and to prevent any other
sale, transfer, assignment, pledge or other encumbrance of the Mortgage
Loans by the Sponsor from being enforceable, subject to any exceptions
set forth in such opinion.
5. No consent, approval, authorization or order of,
registration or filing with, or notice to, courts, governmental agency
or body or other tribunal is required under the laws of the State of
New York, for the execution, delivery and performance of the Documents
or the offer, issuance, sale or delivery of the Notes or the
consummation of any other transaction contemplated thereby by the
Sponsor and the Originators, except such which have been obtained.
6. There are no actions, proceedings or investigations, to
such counsel's knowledge, pending or threatened against the Sponsor or
any Originator before any court, governmental agency or body or other
tribunal (i) asserting the invalidity of the Documents to which the
Sponsor or such Originator (as applicable) is a party or the Notes,
(ii) seeking to prevent the issuance of the Notes or the consummation
of any of the transactions contemplated by the Documents or (iii) which
would materially and adversely affect the performance by the Sponsor or
such Originator of obligations under, or the validity or enforceability
of, the Notes or the Documents to which the Sponsor or such Originator
(as applicable) is a party.
7. To the best knowledge of such counsel, the Commission has
not issued any stop order suspending the effectiveness of the
Registration Statement or any order directed to any prospectus relating
to the Notes (including the Prospectus), and has not initiated or
threatened any proceeding for that purpose.
8. The Registration Statement and the Prospectus (other than
the financial and statistical data included therein, as to which such
counsel need express no opinion), including the incorporated documents,
as of the date on which the Registration Statement was declared
effective and as of the date hereof, comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder and the Exchange Act and the rules and regulations
thereunder, and such counsel does not know of any amendment to the
Registration Statement required to be filed, or of any contracts,
indentures or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement which has not been filed or described as
required.
9. The Indenture, when executed and delivered, will have been
duly qualified under the Trust Indenture Act.
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10. The statements in the Prospectus and Prospectus Supplement
set forth under the captions "ERISA CONSIDERATIONS," "CERTAIN FEDERAL
INCOME TAX CONSEQUENCES," and the statements in the Prospectus set
forth under the caption "CERTAIN LEGAL ASPECTS OF THE MORTGAGE LOANS
AND RELATED MATTERS," to the extent that they constitute matters of
federal, New York or California law, or federal, New York or California
legal conclusions provide a fair and accurate summary of such law or
conclusions.
11. No information has come to such counsel's attention which
causes them to believe that the Prospectus (other than the financial
statement and other financial and statistical data contained therein,
as to which such counsel need express no opinion), as of the date
thereof, contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
12. Such other matters as the Underwriters may reasonably
request.
In rendering its opinions, the counsel described above may
rely, as to matters of fact, on certificates of responsible officers of
the Sponsor and the Originators, the Indenture Trustee and public
officials. Such opinions may also assume the due authorization,
execution and delivery of the instruments and documents referred to
therein by the parties thereto other than the Sponsor and the
Originators.
E. The Underwriters shall have received letters, including
bring-down letters, from Arthur Andersen LLP, dated on or before the
Closing Date, in form and substance satisfactory to the Underwriters
and counsel for the Underwriters, to the effect that they have
performed certain specified procedures requested by the Underwriters
with respect to the information set forth in the Prospectus and certain
matters relating to the Master Servicer.
F. The Notes shall have been rated in the highest rating
category by Standard & Poor's Ratings Services and by Moody's Investors
Service, Inc., and such ratings shall not have been rescinded or
downgraded. The Underwriters and counsel for the Underwriters shall
have received copies of any opinions of counsel supplied to the rating
organizations relating to any matters with respect to the Notes. Any
such opinions shall be dated the Closing Date and addressed to the
Underwriters or accompanied by reliance letters to the Underwriters or
shall state that the Underwriters may rely upon them.
G. The Underwriters shall have received from the Sponsor a
certificate, signed by the president, a senior vice president or a vice
president of the Sponsor, dated the Closing Date, to the effect that
the signer of such certificate has carefully examined the Registration
Statement, the Sale and Servicing Agreement, and this Agreement and
that, to the best of his or her knowledge based upon reasonable
investigation:
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1. the representations and warranties of the Sponsor in this
Agreement, as of the Closing Date, and in the Sale and Servicing
Agreement, the Insurance Agreement, and in all related agreements, as
of the date specified in such agreements, are true and correct, and the
Sponsor has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
2. except as set forth in the Prospectus, there are no
actions, suits or proceedings pending, or to the best of such officer's
knowledge, threatened against or affecting the Sponsor which if
adversely determined, individually or in the aggregate, would be
reasonably likely to adversely affect the Sponsor's obligations under
the Documents to which it is a party in any material way; and no
merger, liquidation, dissolution or bankruptcy of the Sponsor is
pending or contemplated;
3. the information contained in the Registration Statement and
the Prospectus relating to the Sponsor, the Mortgage Loans or the
servicing procedures of it or its affiliates or subservicer is true and
accurate in all material respects and nothing has come to his or her
attention that would lead such officer to believe that the Registration
Statement or Prospectus includes any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein not misleading;
4. the information set forth in the Schedule of Mortgage Loans
required to be furnished pursuant to the Sale and Servicing Agreement
is true and correct in all material respects;
5. there has been no amendment or other document filed
affecting the articles of incorporation or by-laws of the Sponsor since
March 31, 1999, and no such amendment has been authorized. No event has
occurred since March 31, 1999, which has affected the good standing of
the Sponsor under the laws of the State of Delaware;
6. there has not occurred any material adverse change, or,
except as set forth in the Prospectus, any development involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Sponsor
and its subsidiaries, taken as a whole, from March 31, 1999;
7. on or prior to the Closing Date, there has been no
downgrading, nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible changes in rating
the direction of which has not been indicated, in the rating, if any,
accorded the Sponsor or in any rating accorded any securities of the
Sponsor, if any, by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the Act; and
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8. each person who, as an officer or representative of the
Sponsor, signed or signs the Registration Statement, the Documents or
any other document delivered pursuant hereto, on the date of such
execution, or on the Closing Date, as the case may be, in connection
with the transactions described in the Documents was, at the respective
times of such signing and delivery, and is now, duly elected or
appointed, qualified and acting as such officer or representative, and
the signatures of such persons appearing on such documents are their
genuine signatures.
The Sponsor shall attach to such certificate a true and
correct copy of its certificate or articles of incorporation, as
appropriate, and by-laws which are in full force and effect on the date
of such certificate and a certified true copy of the resolutions of its
Board of Directors with respect to the transactions contemplated
herein.
H. The Underwriters shall have received a favorable opinion of
counsel to the Indenture Trustee, dated the Closing Date and in form
and substance satisfactory to the Underwriters, to the effect that:
1. the Indenture Trustee is a national banking association
duly organized, validly existing and in good standing under the laws of
the United States and has the power and authority to enter into and to
take all actions required of it under the Documents to which it is a
party to;
2. the Documents to which the Indenture Trustee is a party
have been duly authorized, executed and delivered by the Indenture
Trustee and such Documents constitute the legal, valid and binding
obligation of the Indenture Trustee, enforceable against the Indenture
Trustee in accordance with its terms, except as enforceability thereof
may be limited by (A) bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally,
as such laws would apply in the event of a bankruptcy, insolvency or
reorganization or similar occurrence affecting the Indenture Trustee,
and (B) general principles of equity regardless of whether such
enforcement is sought in a proceeding at law or in equity;
3. no consent, approval, authorization or other action by any
governmental agency or body or other tribunal is required on the part
of the Indenture Trustee in connection with its execution and delivery
of the Documents to which it is a party or the performance of its
obligations thereunder;
4. the Notes have been duly executed, authenticated and
delivered by the Indenture Trustee; and
5. the execution and delivery of, and performance by the
Indenture Trustee of its obligations under, the Documents to which it
is a party do not conflict with or result in a violation of any statute
or regulation applicable to the Indenture Trustee, or the charter or
by-laws of the Indenture Trustee, or to the best
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knowledge of such counsel, any governmental authority having
jurisdiction over the Indenture Trustee or the terms of any indenture
or other agreement or instrument to which the Indenture Trustee is a
party or by which it is bound.
In rendering such opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Sponsor, the Indenture Trustee and public officials. Such opinion may
also assume the due authorization, execution and delivery of the
instruments and documents referred to therein by the parties thereto
other than the Indenture Trustee.
I. The Underwriters shall have received from the Indenture
Trustee a certificate, signed by the President, a senior vice president
or a vice president of the Indenture Trustee, dated the Closing Date,
to the effect that each person who, as an officer or representative of
the Indenture Trustee, signed or signs the Notes, the Sale and
Servicing Agreement, the Indenture or any other document delivered
pursuant hereto, on the date hereof or on the Closing Date, in
connection with the transactions described in the Sale and Servicing
Agreement and the Indenture was, at the respective times of such
signing and delivery, and is now, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of
such persons appearing on such documents are their genuine signatures.
J. The Policy relating to the Notes shall have been duly
executed and issued at or prior to the Closing Date and shall conform
in all material respects to the description thereof in the Prospectus.
K. The Underwriters shall have received a favorable opinion of
counsel to the Insurer, dated the Closing Date and in form and
substance satisfactory to counsel for the Underwriters, to the effect
that:
1. The Insurer is an insurance corporation, duly incorporated
and validly existing under the laws of its state of incorporation. The
Insurer is validly licensed to do business in New York and is
authorized to issue the Policy and perform its obligations under the
Policy in accordance with the terms thereof.
2. The execution and delivery by the Insurer of the Policy,
the Insurance Agreement and the Indemnification Agreement are within
the corporate power of the Insurer and have been authorized by all
necessary corporate action on the part of the Insurer; the Policy has
been duly executed and is the valid and binding obligation of the
Insurer enforceable in accordance with its terms except that the
enforcement of the Policy may be limited by laws relating to
bankruptcy, insolvency, reorganization, moratorium, receivership and
other similar laws affecting creditors' rights generally and by general
principles of equity (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
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3. The Insurer is authorized to deliver the Indemnification
Agreement and the Insurance Agreement and such agreements have been
duly executed and delivered and constitute the legal, valid and binding
obligations of the Insurer enforceable in accordance with its terms
except that the enforcement of the Insurance Agreement may be limited
by laws relating to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights
generally and by general principles of equity and, in the case of the
Indemnification Agreement, subject to principles of public policy
limiting the right to enforce the indemnification provisions contained
therein insofar as such provisions relate to indemnification for
liabilities arising under securities laws.
4. No consent, approval, authorization or order of any state
or federal court or governmental agency or body is required on the part
of the Insurer, the lack of which would adversely affect the validity
or enforceability of the Policy; to the extent required by applicable
legal requirements that would adversely affect validity or
enforceability of the Policy, the form of the Policy has been filed
with, and approved by, all governmental authorities having jurisdiction
over the Insurer in connection with the Policy.
5. The execution and delivery of the Insurance Agreement, the
Indemnification Agreement and the Policy, and the compliance with the
terms and provisions thereof, will not conflict with, result in a
breach of or constitute a default under any of the terms, provisions or
conditions of the Restated Charter or By-Laws of the Insurer. The
execution, delivery and performance by the Insurer of its obligations
under the policy do not, to the extent that either of the following
would effect the validity or enforceability of the Policy, (a)
contravene any law or government regulation or order presently binding
on the Insurer or (b) contravene any provision of or constitute a
default under any indenture, contract or other instrument to which the
Insurer is a party or by which the Insurer is bound.
6. The Policy is not required to be registered under the Act.
7. The information set forth under the caption "THE INSURER
AND THE POLICY" in the Prospectus Supplement, insofar as such
statements constitute a description of the Policy, accurately
summarizes the Policy.
In rendering this opinion, such counsel may rely, as to
matters of fact, on certificates of responsible officers of the
Sponsor, the Originators, the Indenture Trustee, the Insurer and public
officials. Such opinion may assume the due authorization, execution and
delivery of the instruments and documents referred to therein by the
parties thereto other than the Insurer.
L. Since March 31, 1999, there has been no downgrading, nor
has any notice been given of (A) any intended or potential downgrading
or (B) any review or possible changes in rating the direction of which
has not been indicated, in the rating, if any, accorded the Sponsor or
any Originator or in any rating accorded
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any securities of the Sponsor, if any, by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of the Act.
M. On or prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given of (A)
any intended or potential downgrading or (B) any review or possible
change in rating the direction of which has not been indicated, in the
rating accorded the Insurer's claims paying ability by any "nationally
recognized statistical rating organization," as such term is defined
for purposes of the Act.
N. There has not occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, since March 31,
1999, of (A) the Sponsor, the Originators and any subsidiaries or (B)
the Insurer, that is in the Underwriters' judgment material and adverse
and that makes it in the Underwriters' judgment impracticable to market
the Notes on the terms and in the manner contemplated in the
Prospectus.
O. The Underwriters shall have received from the Insurer a
certificate, signed by the president, a senior vice president or a vice
president of the Insurer, dated the Closing Date, to the effect that
the signer of such certificate has carefully examined the Policy, the
Insurance Agreement, the Indemnification Agreement and the related
documents and that, to the best of his or her knowledge based on
reasonable investigation:
1. There are no actions, suits, proceedings or investigations
pending or, to the best of Insurer's knowledge, threatened against it
at law or in equity before or by any court, governmental agency, board
or commission or any arbitrator which, if adversely determined,
individually or in the aggregate, would materially and adversely affect
the Insurer's condition (financial or otherwise) or operations or which
would materially and adversely effect its ability to perform its
obligations under the Policy, the Insurance Agreement or the
Indemnification Agreement;
2. The information contained in the Prospectus Supplement
under the caption "THE INSURER AND THE POLICY" (the "Insurer
Information") is limited and does not purport to provide the scope of
disclosure required to be included in a prospectus for a registrant
under the Securities Act of 1933, as amended, in connection with the
public offer and sale of securities of such registrant. Within such
limited scope of disclosure, the Insurer Information does not contain
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
3. The tables regarding the Insurer's capitalization set forth
under the heading "THE INSURER AND THE POLICY" in the Prospectus
Supplement
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presents accurately and fairly the capitalization of the Insurer as of
March 31, 1999;
4. The consolidated financial statements of the Insurer as of
December 31, 1998 and December 31, 1997, and for each of the years in
the three-year period ended December 31, 1998, together with the
related opinion of an independent certificated public accountant,
copies of which are incorporated by reference in the Prospectus
Supplement, fairly present in all material respects the financial
condition of the Insurer as of such date and for the period covered by
such statements in accordance with generally accepted accounting
principles consistently applied; the unaudited consolidated financial
statements of the Insurer as of March 31, 1999 and for the periods
ending March 31, 1999 and March 31, 1998 included in the Quarterly
Report on Form 10-Q of Ambac Financial Group Inc. for the period ended
March 31, 1999, fairly present in all material respects the financial
condition of the Insurer as of such date and for the period covered by
such statements in accordance with generally accepted accounting
principles applied consistently with those principles applied in
preparing the December 31, 1998 audited statements;
5. No material adverse change in such the financial condition
of the Insurer which would materially and adversely affect its ability
to perform its obligations under the Policy.
6. The execution and delivery of the Insurance Agreement, the
Indemnification Agreement and the Policy and the compliance with the
terms and provisions thereof will not conflict with, result in a breach
of, or constitute a default under any of the terms, provisions or
conditions of, the Restated Charter of By-Laws of the Insurer, or any
agreement, indenture or other instrument to which the Insurer is a
party.
7. The issuance of the Policy and the execution, delivery and
performance of the Indemnification Agreement and the Insurance
Agreement have been duly authorized by all necessary corporate
proceedings. No further approvals or filings of any kind, including,
without limitation, any further approvals of or further filing with any
governmental agency or other governmental authority, or any approval of
the Insurer's board of directors or stockholders, are necessary for the
Policy, the Indemnification Agreement and the Insurance Agreement to
constitute the legal, valid and binding obligations of the Insurer.
8. To the best knowledge of such officer, since March 31,
1999, no material adverse change has occurred in the financial position
of the Insurer other than as may be set forth in the Prospectus
Supplement.
The officer of the Insurer certifying to items 5-8 shall be an
officer in charge of a principal financial function.
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The Insurer shall attach to such certificate a true and
correct copy of its certificate or articles of incorporation, as
appropriate, and its by-laws, all of which are in full force and effect
on the date of such certificate.
P. The Underwriters shall have received from Dewey Ballantine
LLP, special counsel to the Sponsor and the Originators, a survey in
form and substance satisfactory to the Underwriters, indicating the
requirements of applicable local law which must be complied with in
order to transfer and service the Mortgage Loans pursuant to the Sale
and Servicing Agreement and the Originators shall have complied with
all such requirements.
Q. The Underwriters shall have received from Brown & Wood LLP,
special counsel to the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Notes,
the Prospectus and such other related matters as the Underwriters shall
reasonably require.
R. The Underwriters shall have received from Dewey Ballantine
LLP, special counsel to the Sponsor and the Originators, such opinion
or opinions, dated the Closing Date, with respect to certain tax
matters.
S. The Underwriters and counsel for the Underwriters shall
have received copies of any opinions of counsel to the Sponsor, the
Originators or the Insurer supplied to the Indenture Trustee relating
to matters with respect to the Notes or the Policy. Any such opinions
shall be dated the Closing Date and addressed to the Underwriters or
accompanied by reliance letters to the Underwriters or shall state the
Underwriters may rely thereon.
T. The Underwriters shall have received such further
information, Notes and documents as the Underwriters may reasonably
have requested not the business day prior to the Closing Date.
U. There shall have been executed and delivered by Advanta
Mortgage Holding Company, the indirect corporate parent of the Sponsor
and direct corporate parent of the Master Services ("AMHC"), a letter
agreement with the Trust and the Insurer substantially in the form of
Exhibit B hereto.
V. There shall have been executed and delivered by AMHC, the
indirect corporate parent of the Sponsor, a letter agreement with the
Underwriters and the Insurer substantially in the form of Exhibit A
hereto.
W. Prior to the Closing Date, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Notes as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of
the conditions, herein contained, and all proceedings taken by the
Originators in connection with the issuance and sale of the Notes as
herein
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contemplated shall be satisfactory in form and substance to the
Underwriters and counsel for the Underwriters.
X. Subsequent to the execution and delivery of this Agreement
none of the following shall have occurred: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or minimum
prices shall have been established on either of such exchanges or such
market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction; (i) a banking
moratorium shall have been declared by Federal or state authorities;
(ii) the United States shall have become engaged in hostilities, there
shall have been an escalation of hostilities involving the United
States or there shall have been a declaration of a national emergency
or war by the United States; or (iii) there shall have occurred such a
material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets of the United States shall be such) as to make it, in the
judgment of the Underwriters, impractical or inadvisable to proceed
with the public offering or delivery of the Notes on the terms and in
the manner contemplated in the Prospectus.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriters by notice to the Sponsor and each of the Originators at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 7.
All opinions, letters, evidence and Notes mentioned above or elsewhere
in this Agreement shall be deemed to be in compliance with the provisions hereof
only if they are in form and substance reasonably satisfactory to counsel for
the Underwriters.
SECTION 7. Payment of Expenses. The Sponsor and the Originators agree
to pay: (a) the costs incident to the authorization, issuance, sale and delivery
of the Notes and any taxes payable in connection therewith; (b) the costs
incident to the preparation, printing and filing under the Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of reproducing and distributing this Agreement; (e) the
fees and expenses of qualifying the Notes under the securities laws of the
several jurisdictions as provided in Section 5(G) hereof and of preparing,
printing and distributing any Blue Sky Memorandum or Legal Investment Survey
(including related fees and expenses of counsel to the Underwriters); (f) any
fees charged by securities rating services for rating the Notes; (g) any amounts
in excess of $40,000 of the total of the costs and expenses of Brown & Wood LLP;
and (h) all other costs and expenses incident to the performance of the
obligations of the Sponsor and the Originators; provided, however, that, except
as provided in this Section 7, the Underwriters shall pay
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its own costs and expenses, including an amount not to exceed $40,000 of the
total of the costs and expenses of Brown & Wood LLP, any transfer taxes on the
Notes which they may sell and the expenses of marketing any offering of the
Notes made by the Underwriters (including expenses incident to the preparation,
printing and distribution of Computational Materials and other Derived
Information).
If this Agreement is terminated by the Underwriters, in accordance with
the provisions of Section 6 or Section 10, the Sponsor and the Originators shall
reimburse the Underwriters for their respective reasonable out-of-pocket
expenses, including fees and disbursements of Brown & Wood LLP.
SECTION 8. Indemnification and Contribution.
A. The Sponsor and the Originators each agree to indemnify and
hold harmless each Underwriter and each person, if any, who controls
the respective Underwriter within the meaning of Section 15 of the Act
from and against any and all loss, claim, damage or liability,
severally but not jointly, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of the Notes), to which each such
Underwriter or any such controlling person may become subject, under
the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iii) any untrue statement
or alleged untrue statement of a material fact contained in the
Prospectus or (iv) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and shall reimburse each Underwriter and each
such controlling person promptly upon demand for any legal or other
expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that neither the Sponsor
nor any of the Originators shall be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Prospectus or the
Registration Statement in reliance upon and in conformity with written
information (including any Derived Information) furnished to the
Sponsor by the Underwriters specifically for inclusion therein. For
purposes of the last proviso to the immediately preceding sentence, the
term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and the Underwriters shall not be
obligated to send or give any supplement or amendment to any document
incorporated therein by reference to any person other than a person to
whom the Underwriters have delivered such incorporated document or
documents in response to a written request therefor. The foregoing
indemnity agreement is in
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addition to any liability which the Sponsor or any of the Originators
may otherwise have to any Underwriter or any controlling person of any
Underwriter.
B. Each Underwriter severally but not jointly will indemnify
and hold harmless the Sponsor, the Originators, each of their
respective directors, each of their respective officers who signed the
Registration Statement, and each person, if any, who controls the
Sponsor or any of the Originators within the meaning of Section 15 of
the Act against any and all loss, claim, damage or liability, or any
action in respect thereof, to which the Sponsor or such Originator or
any such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) any
untrue statement or alleged untrue statement of a material fact
contained in the Prospectus or (iv) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each
case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and
in conformity with written information (excluding any Derived
Information which is covered in paragraph (E) below) furnished to the
Sponsor by or on behalf of the Underwriters specifically for inclusion
therein, and shall reimburse the Sponsor, such Originator and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Sponsor or such Originator or any director,
officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which the
Underwriters may otherwise have to the Sponsor, the Originators or any
such director, officer or controlling person.
C. Promptly after receipt by any indemnified party under this
Section 8 of notice of any claim or the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify an indemnifying
party shall not relieve it from any liability which it may have under
this Section 8 except to the extent it has been materially prejudiced
by such failure; and provided further, however, that the failure to
notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this
Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably
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satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by such Underwriter, if the indemnified
parties under this Section 8 consist of such Underwriter or any of its
controlling persons, or by the Sponsor or the Originators, as the case may be,
if the indemnified parties under this Section 8 consist of the Sponsor or the
Originators, as the case may be, or any of the Sponsor's directors, officers or
controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(A) and (B), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
23
25
D. Each Underwriter agrees to deliver to the Sponsor a copy of
its Derived Information no later than one (1) business day prior to the
date such information is required to be filed, pursuant to the
No-Action Letters (as defined herein), with the Commission on Form 8-K.
E. Each Underwriter agrees, assuming all Sponsor-Provided
Information (defined below) is accurate and complete in all material
respects, to indemnify and hold harmless the Sponsor, the Originators,
each of the Sponsor's and the Originators' respective officers and
directors and each person who controls the Sponsor or the Originators
within the meaning of Section 15 of the Act against any and all losses,
claims, damages or liabilities, joint or several, to which they may
become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement of a material fact
contained in the Derived Information provided by such Underwriter, or
arise out of or are based upon the omission or alleged omission to
state therein, a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made and when read in conjunction
with the Prospectus, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred
by him, her or it in connection with investigating or defending or
preparing to defend any such loss, claim, damage, liability or action
as such expenses are incurred. The obligations of the Underwriters
under this Section 8(E) shall be in addition to any liability which the
respective Underwriters may otherwise have.
The procedures set forth in Section 8(C) shall be equally
applicable to this Section 8(E).
F. For purposes of this Section 8, the term "Derived
Information" means such portion, if any, of the information delivered
to the Sponsor pursuant to Section 8(D) for filing with the Commission
on Form 8-K as:
(i) is not contained in the Prospectus without taking
into account information incorporated therein by reference;
(ii) does not constitute Sponsor-Provided
Information; and
(iii) is of the type of information defined as
Collateral term sheets, Structural term sheets or
Computational Materials (as such terms are interpreted in the
No-Action Letters).
"Sponsor-Provided Information" means any computer tape furnished to the
Underwriters by the Sponsor and the Originators concerning the Mortgage
Loans comprising the Trust.
The terms "Collateral term sheet" and "Structural term sheet"
shall have the respective meanings assigned to them in the February 13,
1995 letter (the "PSA Letter") of Cleary, Gottlieb, Steen & Hamilton on
behalf of the Public
24
26
Securities Association (which letter, and the SEC staff's response
thereto, were publicly available February 17, 1995). The term
"Collateral term sheet" as used herein includes any subsequent
Collateral term sheet that reflects a substantive change in the
information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Kidder letter"
and together with the PSA Letter, the "No-Action Letters") of Brown &
Wood on behalf of Kidder, Peabody & Co., Inc. (which letter, and the
SEC staff's response thereto, were publicly available May 20, 1994).
G. If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(A) or (B) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect the relative benefits received by the Sponsor
and the Originators on the one hand and the Underwriters on the other
from the offering of the Notes or if the allocation provided by clause
(i) above is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 8(C), in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Sponsor and the Originators on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations.
The relative benefits of the Underwriters and the Sponsor shall be
deemed to be in such proportion as the total net proceeds from the offering
(before deducting expenses) received by the Sponsor to the total underwriting
discounts and commissions.
The relative fault of the Underwriters and the Sponsor and the
Originators shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Sponsor and the Originators
or by the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission and other equitable considerations.
The Sponsor, the Originators and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 8(G) were to
be determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in this
Section 8(G) shall be deemed to include, for purposes of this Section 8(G), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
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For purposes of this Section 8, in no case shall the Underwriter be
responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the Notes over (y) the amount paid
by such Underwriter to the Sponsor for the Notes purchased by such Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
H. The Underwriters confirm that the information set forth in
the first sentences of the third, fourth, fifth, sixth, seventh and
ninth paragraphs under the caption "UNDERWRITING" in the Prospectus
Supplement, together with the Derived Information, is correct and
constitutes the only information furnished in writing to the Sponsor
and the Originators by or on behalf of the Underwriters specifically
for inclusion in the Registration Statement and the Prospectus.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Sponsor or any
Originator submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of such
Underwriter or controlling persons thereof, or by or on behalf of the Sponsor or
the Originator and shall survive delivery of any Notes to the Underwriters.
SECTION 10. Termination of Agreement. The Underwriters may terminate
this Agreement immediately upon notice to the Sponsor and the Originators, at
any time at or prior to the Closing Date if any of the events or conditions
described in Section 6(X) of this Agreement shall occur and be continuing. In
the event of any such termination, the covenant set forth in the provisions of
Section 7, the indemnity agreement set forth in Section 8, and the provisions of
Sections 9 and 13 shall remain in effect.
SECTION 11. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and: A. if to the Underwriters, shall be
delivered or sent by mail, telex or facsimile transmission to Bear, Stearns &
Co. Inc., 245 Park Avenue, New York, New York 10167, Attention: Asset Backed
Securities (Fax: 212-272-7294);
B. if to the Sponsor, shall be delivered or sent by mail,
telex or facsimile transmission to Advanta Mortgage Conduit Services,
Inc. 10790 Rancho Bernardo Road, San Diego, California 92127 Attention:
General Counsel (Fax: 619-674-3592); and
C. if to Advanta National Bank, shall be delivered or sent by
mail to Advanta National Bank, One Righter Parkway, Wilmington,
Delaware 19803 (Telephone: 302-266-5600); and
26
28
D. if to Advanta Finance Corp., 10790 Rancho Bernardo Road,
San Diego, CA 92127, Attention: Secretary.
SECTION 12. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters,
the Sponsor, the Originators and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that the representations, warranties, indemnities and agreements
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who controls such Underwriter within the meaning of
Section 15 of the Act, and for the benefit of directors of the Sponsor or any of
the Originators, officers of the Sponsor who have signed the Registration
Statement and any person controlling the Sponsor or any of the Originators
within the meaning of Section 15 of the Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 12, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
SECTION 13. Survival. The respective indemnities, representations,
warranties and agreements of the Sponsor, the Originators and the Underwriters
contained in this Agreement, or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Notes and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
SECTION 14. Definition of the Term "Business Day". For purposes of this
Agreement, "Business Day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND SHALL BE
CONSTRUED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
[Signature Page Follows]
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If the foregoing correctly sets forth the agreement among the Sponsor,
the Originators and the Underwriters, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
ADVANTA MORTGAGE CONDUIT
SERVICES INC.
By: /s/ Michael Coco
----------------------------------
Name: Michael Coco
Title: Vice President
ADVANTA NATIONAL BANK
By: /s/ Michael Coco
----------------------------------
Name: Michael Coco
Title: Vice President
ADVANTA FINANCE CORP.
By: /s/ Michael Coco
----------------------------------
Name: Michael Coco
Title: Vice President
CONFIRMED AND ACCEPTED
as of the date first above written:
BEAR, STEARNS & CO. INC.
(for itself and for the other Underwriter
set forth on Schedule I)
By: /s/ Thomas S. Dunstan
---------------------------------
Name: Thomas S. Dunstan
Title: Managing Director
30
===============================================================================================================================
SCHEDULE I
- -------------------------------------------------------------------------------------------------------------------------------
Purchase Price
to Underwriters
Initial Principal Amount of Notes disregarding
Class Purchased by the Underwriters accrued interest Note Rate
- -------------------------------------------------------------------------------------------------------------------------------
Bear, Stearns & Co. Inc. $148,500,000 99.75% LIBOR + .25%
- -------------------------------------------------------------------------------------------------------------------------------
Lehman Brothers Inc. $99,000,000 99.75% LIBOR + .25%
===============================================================================================================================
S-1
31
EXHIBIT A
As of May 18, 1999
Bear, Stearns & Co. Inc.
as Representative of the Underwriters
245 Park Avenue
New York, New York 10167
Ambac Assurance Corporation
One State Street Plaza
New York, New York 10004
Re: Underwriting Agreement dated May 18, 1999 (the "Underwriting
Agreement") among Advanta National Bank and Advanta Finance
Corp. (together, the "Originators"), Advanta Mortgage Conduit
Services, Inc. (the "AMCSI") Bear, Stearns & Co. Inc. and
Lehman Brothers Inc. (the "Underwriters") and the Insurance
and Indemnity Agreement dated May 18, 1999 (the " Insurance
Agreement") among the Sponsor, the Master Servicer, the Trust
and Ambac Assurance Corporation (the "Insurer")
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement and the Insurance Agreement
(together, the "Designated Agreements"), AMCSI has undertaken certain financial
obligations with respect to the indemnification of the Underwriters and of the
Insurer with respect to the Registration Statement, the Prospectus and the
Prospectus Supplement described in the Designated Agreements. Any financial
obligations of AMCSI under the Designated Agreements, whether or not
specifically enumerated in this paragraph, are hereinafter referred to as the
"Joint and Several Obligations"; provided, however, that "Joint and Several
Obligations" shall mean only the financial obligations of AMCSI under the
Designated Agreements (including the payment of money damages for a breach of
any of AMCSI's obligations under the Designated Agreements, whether financial or
otherwise) but shall not include any obligations not relating to the payment of
money.
As a condition of their respective executions of the Underwriting
Agreement and of the Insurance Agreement, the Underwriters and the Insurer have
required the undersigned, Advanta Mortgage Holding Company ("AMHC"), the parent
corporation of AMCSI, to acknowledge its joint-and-several liability with AMCSI
for the payment of the Joint and Several Obligations under the Designated
Agreements.
Now, therefore, the Underwriter, the Insurer and AMHC do hereby agree
that:
(i) AMHC hereby agrees to be absolutely and unconditionally
jointly and severally liable with AMCSI to the Underwriters for the
32
payment of the Joint and Several Obligations under the Underwriting
Agreement.
(ii) AHMC hereby agrees to be absolutely and unconditionally
and jointly and severally liable with AMCSI to the Insurer for payment
of the Joint and Several Obligations under the Insurance Agreement.
(iii) AMHC may honor its obligations hereunder either by
direct payment of any Joint and Several Obligations or by causing any
Joint and Several Obligations to be paid to the Underwriters or to the
Insurer, by AMCSI or another affiliate of AMHC.
Capitalized terms used herein and not defined herein shall have their
respective meanings set forth in the Designated Agreements.
This letter and the respective obligations and rights hereunder and
thereunder shall not be delegated or assigned by you without the prior written
consent of the Insurer. This letter may not be amended or otherwise modified
except pursuant to a writing signed by each of the parties hereto. This letter
may be executed by the signatories hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the
same letter.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE UNDERSIGNED PARTIES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF OR IN CONNECTION
WITH, THIS LETTER, AND ANY OTHER COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THE UNDERSIGNED
PARTIES IN CONNECTION HEREWITH OR THEREWITH.
33
Capitalized terms used herein and not defined herein shall have their
respective meanings as set forth in the Designated Agreement.
Very truly yours,
ADVANTA MORTGAGE HOLDING
COMPANY
By:
-------------------------------------
Authorized Signatory
CONFIRMED AND ACCEPTED,
as of the date first above written:
AMBAC ASSURANCE CORPORATION
By:
--------------------------
Authorized Signatory
BEAR, STEARNS & CO. INC.
By:
--------------------------
Authorized Signatory
34
EXHIBIT B
Advanta Revolving Home
Equity Loan Trust 1999-A
c/o Bankers Trust Company of California, N.A.
Three Park Plaza
16th Floor
Irvine, California 92714
Ambac Assurance Corporation
One State Street Plaza
New York, New York 10004
Re: Sale and Servicing Agreement dated as of May 1, 1999 (the
"Agreement") among Advanta as Sponsor, Advanta Mortgage Corp.
USA, as Master Servicer ("USA"), Advanta Revolving Home Equity
Loan Trust 1999-A (the "Trust"), Advanta Holding Trust 1999-A
("Holding") and Bankers Trust Company of California, N.A. as
Indenture Trustee (the "Indenture Trustee")
Ladies and Gentlemen:
Pursuant to the Agreement, USA in its capacity as Master
Servicer, has undertaken certain financial obligations with respect to its
servicing of the Mortgage Loans, including, but not limited to, the making of
Servicing Advances. In addition, the Sponsor has, in the Agreement undertaken
certain financial obligations, including, but not limited to, the payment of the
Loan Reacquisition Price relating to the repurchase of non-qualifying Mortgage
Loans, the payment of Substitution Amounts in connection with the substitution
of Qualified Replacement Mortgage Loans and the payment of certain expenses of
the Trust. Any financial obligations of USA or the Sponsor under the Agreement,
whether or not specifically enumerated in this paragraph, are hereinafter
referred to as the "Joint and Several Obligations"; provided, however, that
"Joint and Several Obligations" shall mean only the financial obligations of USA
and the Sponsor under the Agreement (including the payment of money damages for
a breach of any of USA's or the Sponsor's obligations under the Agreement,
whether financial or otherwise) but shall not include any obligations not
relating to the payment of money (e.g., the obligation to service the Mortgage
Loans).
The Insurer has required the undersigned, Advanta Mortgage
Holding Company ("AMHC"), the parent corporation of USA and the indirect
corporate parent of the Sponsor, to acknowledge its joint-and-several liability
with USA and the Sponsor for the payment of the Joint and Several Obligations
under the Agreement.
35
Now, therefore, the Trust, the Insurer and AMHC do hereby
agree that:
(i) AMHC hereby agrees to be absolutely and
unconditionally jointly and severally liable with USA
and the Sponsor to the Trust and the Insurer for the
payment of the Joint and Several Obligations under
the Agreement.
(ii) AMHC may honor its obligations hereunder either by
direct payment of any Joint and Several Obligations
or by causing any Joint and Several Obligations to be
paid to the Trust and the Insurer by USA, the
Sponsor, or another affiliate of AMHC.
This letter and the respective obligations and rights
hereunder and thereunder shall not be delegated or assigned by you without the
prior written consent of the Insurer. This letter may not be amended or
otherwise modified except pursuant to a writing signed by each of the parties
hereto. This letter may be executed by the signatories hereto in several
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same letter.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE UNDERSIGNED PARTIES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF OR IN
CONNECTION WITH, THIS LETTER, AND ANY OTHER COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY OF THE
UNDERSIGNED PARTIES IN CONNECTION HEREWITH OR THEREWITH.
36
Capitalized terms used herein and not defined herein shall
have their respective meanings as set forth in the Agreement.
Very truly yours,
ADVANTA MORTGAGE HOLDING COMPANY
By:
-------------------------------------
Authorized Signatory
ACKNOWLEDGED AND AGREED:
ADVANTA REVOLVING HOME EQUITY
LOAN TRUST 1999-A
By: WILMINGTON TRUST COMPANY
as Owner Trustee
By:
--------------------------
Authorized Signatory
ACKNOWLEDGED:
AMBAC ASSURANCE CORPORATION
By:
--------------------------
Authorized Signatory
Dated: