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Exhibit 1.1
EXECUTION COPY
ADVANTA CONDUIT RECEIVABLES, INC.
ADVANTA REVOLVING HOME EQUITY LOAN ASSET-BACKED NOTES,
SERIES 1999-B
ADJUSTABLE RATE NOTES
UNDERWRITING AGREEMENT
September 21, 1999
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
(for itself and the other Underwriter
named in Schedule I hereto)
Ladies and Gentlemen:
Advanta Conduit Receivables, Inc., as Sponsor (the "Sponsor"), has
authorized the issuance and sale of Advanta Revolving Home Equity Loan
Asset-Backed Notes, Series 1999-B (the "Notes"). The Notes will be issued
pursuant to an indenture (the "Indenture"), dated as of September 1, 1999,
between Advanta Revolving Home Equity Loan Trust 1999-B (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 September 1, 1999, among the Sponsor, Advanta Holding
Trust 1999-B ("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 September 1, 1999, among the Sponsor, Holding, the Trust, Advanta
Mortgage Corp. USA, as Master Servicer (the "Master Servicer"), and the
Indenture Trustee. The beneficial ownership interests of Holding 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 will represent the remaining undivided interest in the assets of the
Trust (the "Residual Interest"), and may be sold or pledged at any
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time, subject to certain conditions specified in the Trust Agreement. The Notes
will be issued on or about September 28, 1999 (the "Closing Date") in the
aggregate original principal amount of $275,000,000. 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 Indemnity Agreement (the
"Insurance Agreement"), dated as of September 28, 1999 among the Sponsor, the
Insurer, the Master Servicer, 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
September 28, 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 The
Sponsor represents and warrants to, and agrees with each Underwriter that:
A. The Sponsor has filed with the Securities and Exchange Commission
(the "Commission"), a registration statement (No. 333-75295) 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)(3) under the Act a preliminary prospectus supplement dated
September 15, 1999 and pursuant to Rule 424(b)(2), a prospectus supplement
dated September 21, 1999 to the prospectus dated August 10, 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 August 10, 1999, in the form in which it will be filed
with the Commission pursuant to Rule 424(b) under the Act is hereinafter
called the "Basic Prospectus"; such preliminary prospectus supplement
dated September 15, 1999, in the form in
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which it will be filed with the Commission pursuant to Rule 424(b)(3)
under the Act is hereinafter called the "Preliminary Prospectus
Supplement"; such prospectus supplement dated September 21, 1999 to the
Basic Prospectus, in the form in which it will be filed with the
Commission pursuant to Rule 424(b)(2) of the Act, is hereinafter called
the "Prospectus Supplement"; and the Basic Prospectus, the Preliminary
Prospectus Supplement 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
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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.
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, except as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
E. The Sponsor has been duly incorporated and is validly existing as
a corporation 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 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 is a party or of which any of its properties is the
subject (a) which if determined adversely to the Sponsor would have a
material adverse effect on the business or financial condition of the
Sponsor, (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 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 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 and will constitute legal, valid and binding instruments
enforceable against the Sponsor, 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 and the Insurance Agreement,
limitations of public policy under applicable securities laws.
H. The execution, delivery and performance of the Documents by the
Sponsor 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 which
the Sponsor is a party, by which the Sponsor is bound or to which any of
the property or assets of the Sponsor or any
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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 statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Sponsor or any of their respective properties or assets.
I. Arthur Andersen LLP are independent public accountants with
respect to the Sponsor 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 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. 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 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.
M. As of opening of business on September 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.
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N. None of the Sponsor, 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.
O. At the Closing Date, the Notes and the Indenture will conform in
all material respects to the descriptions thereof contained in the
Prospectus.
P. At the Closing Date, the Notes shall have been rated in the
highest rating category by at least two nationally recognized rating
agencies.
Q. 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.
R. 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 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.
The obligations of the Underwriters hereunder to purchase the Notes shall
be several and not joint. Each Underwriter's obligation shall be to purchase the
aggregate principal amount of Notes as is indicated with respect to each
Underwriter under the caption "Underwriting" in the Prospectus. The rights of
the Sponsor and a non-defaulting Underwriter shall be as set forth in Section 13
hereof.
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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 and the Sponsor. Payment shall be
made to the Sponsor 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 With respect to the issuance of
the Notes, the Sponsor agrees 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; 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.
B. To furnish promptly to the Underwriters and to counsel for the
Underwriters a signed copy of the Registration Statement as originally
filed with
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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. 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
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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.
G. 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.
H. 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.
I. 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 as of the Closing Date of the representations
and warranties on the part of the Sponsor herein contained; (ii) the performance
by the Sponsor its 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.
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.
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D. The Underwriters shall have received the favorable opinion of
Dewey Ballantine LLP, special counsel to the Sponsor with respect to the
following items, dated the Closing Date, to the effect that:
1. The Sponsor has been duly organized and is validly existing as a
corporation 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 under the Documents to
which it is a party. The Sponsor 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 is a party have been duly and
validly authorized, executed and delivered by the Sponsor and all
requisite corporate action by the Sponsor 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 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; (ii) any
term or provision of any material agreement, contract, instrument or
indenture, to which the Sponsor 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 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 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
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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, 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 before any
court, governmental agency or body or other tribunal (i) asserting the
invalidity of the Documents to which the Sponsor 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 of
obligations under, or the validity or enforceability of, the Notes or the
Documents to which the Sponsor 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.
10. The statements in the Prospectus and Prospectus Supplement set
forth under the captions "ERISA Considerations," "Material Federal Income
Tax Consequences," and the statements in the Prospectus set forth under
the caption "Legal Aspects of the Mortgage Loans," 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.
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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:
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;
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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 June 30, 1999,
and no such amendment has been authorized. No event has occurred since
June 30, 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 June 30, 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
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.
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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 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
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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).
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,
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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
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 June 30, 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 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.
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 June 30, 1999, of (A) the Sponsor
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.
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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 Act, 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
presents accurately and fairly the capitalization of the Insurer as of
June 30, 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 June 30,
1999 and for the periods ending June 30, 1999 and June 30, 1998 included
in the Quarterly Report on Form 10-Q of Ambac Financial Group Inc. for the
period ended June 30, 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;
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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 June 30, 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.
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, 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
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, such opinion or opinions, dated the
Closing Date, with respect to certain tax matters.
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S. The Underwriters and counsel for the Underwriters shall have
received copies of any opinions of counsel to the Sponsor 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,
certificates and documents as the Underwriters may reasonably have
requested not later than 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 Servicer ("AMHC"), a letter agreement with
the Trust and the Insurer substantially in the form of Exhibit A hereto.
V. There shall have been executed and delivered by AMHC a letter
agreement with the Underwriters and the Insurer substantially in the form
of Exhibit B 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
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.
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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 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 agrees 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(F) 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 $50,000 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;
provided, however, that, except as provided in this Section 7, the Underwriters
shall pay its own costs and expenses, including an amount not to exceed $50,000
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 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 agrees 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
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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 the Sponsor shall not 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 addition
to any liability which the Sponsor 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, its directors, its officers who signed the
Registration Statement, and each person, if any, who controls the Sponsor
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 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
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reimburse the Sponsor, and any such director, officer or controlling
person for any legal or other expenses reasonably incurred by the Sponsor
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 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
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 other than reasonable costs of investigation.
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
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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 if the indemnified
parties under this Section 8 consist of the Sponsor 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.
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 severally and not jointly indemnify and hold harmless the
Sponsor, each of the Sponsor's officers and directors and each person who
controls the Sponsor 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
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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 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 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 LLP 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 (i) 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 on the one hand and
the Underwriters on the other from the offering of the Notes or (ii) 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 on the one hand and the
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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 Sponsor on the one hand and the
Underwriters on the other 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 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 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 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.
For purposes of this Section 8, in no case shall each 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
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 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 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 and shall survive delivery of
any Notes to the Underwriters.
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SECTION 10. Termination of Agreement The Underwriters may terminate
this Agreement immediately upon notice to the Sponsor 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 Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036; and
B. if to the Sponsor, shall be delivered or sent by mail, telex or
facsimile transmission to Advanta Conduit Receivables, Inc. 10790 Rancho
Bernardo Road, San Diego, California 92127 Attention: General Counsel
(Fax: 858-676-3046).
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 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, officers of the Sponsor
who have signed the Registration Statement and any person controlling the
Sponsor 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. Default by One of the Underwriters If one of the
Underwriters shall fail on the Closing Date to purchase the Notes which it is
obligated to purchase hereunder (the "Defaulted Notes"), the remaining
Underwriter (the "Non-Defaulting Underwriter"), shall have the right, but not
the obligation within one (1) Business Day thereafter, to make arrangements to
purchase all, but not less than all, of the Defaulted Notes upon the terms
herein set forth; if, however, the Non-Defaulting Underwriter shall not have
completed such arrangements within such one (1) Business Day period, then this
Agreement shall terminate without liability on the part of the Non-Defaulting
Underwriter.
No action taken pursuant to this Section 13 shall relieve the defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Non-Defaulting Underwriter or the Sponsor shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any
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required changes in the Registration Statement or Prospectus or in any other
documents or arrangements.
SECTION 14. Survival The respective indemnities, representations,
warranties and agreements of the Sponsor 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 15. 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 16. 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 17. 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 18. 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.
SECTION 19. Representations of Underwriters The Representative will
act for the several Underwriters in connection with the transactions
contemplated by this Agreement, and any action under this Agreement taken by the
Representative will be binding upon all of the Underwriters.
[Signature Page Follows]
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If the foregoing correctly sets forth the agreement between the Sponsor
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
ADVANTA CONDUIT RECEIVABLES,
INC.
By:_________________________________
Name:
Title:
CONFIRMED AND ACCEPTED
as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
(for itself and for the other Underwriter
set forth on Schedule I)
By:__________________________
Name:
Title: