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EXHIBIT 1.1
ADVANTA CONDUIT RECEIVABLES, INC.
Mortgage Loan Asset-Backed Certificates,
Series [Series]
UNDERWRITING AGREEMENT
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[Underwriter/Representative Underwriter]
As [Underwriter/Representative of the Underwriters
(the "Representative") named in Schedule I]
[Underwriter's/Representative's Address]
Ladies and Gentlemen:
Advanta Conduit Receivables, Inc. (the "Company") has
authorized the issuance and sale of Mortgage Loan Asset-Backed Certificates,
Series [Series], consisting of (i) the Class [First Class of Securities] (the
"Class [First Class of Securities]") , (ii) the Class [Second Class of
Securities] (the "Class [Second Class of Securities]", together with the Class
[First Class of Securities], the "Offered [Securities]"), and (iii) the residual
class with respect to the REMIC held by the Trust (the "[Residual Securities]").
Only the Offered [Securities] are offered by the Underwriter[s].
The Offered [Securities] will be issued by the Advanta
Mortgage Loan Trust [Series] (the "Trust"), and will evidence in the aggregate
the beneficial interest in a trust estate (the "Trust Estate") consisting
primarily of a pool of closed-end mortgage loans having fixed rates of interest
(the "Fixed Rate Group"), a pool of closed-end mortgage loans having adjustable
rates of interest (the "ARM Group", and together with the Fixed Rate Group, the
"Mortgage Loans"), amounts on deposit with [Trustee], as trustee of the Trust
(the "Trustee") in an account to be used to acquire additional mortgage loans
following the Closing Date (as hereinafter defined) for the Trust (the
"Pre-Funding Account") and certain related property. The Mortgage Loans shall
have, on or about [Closing Date] (the "Closing Date"), an aggregate principal
balance of approximately $[___________] and the Pre-Funding Account shall have
approximately $[____________], of which an amount equal to approximately
$[____________] may be applied to the purchase of additional loans for the Fixed
Rate Group and an amount equal to approximately $[_________] may be applied to
the purchase of additional loans for the ARM Group during the period from the
Closing Date to on or before [End of Pre-Funding Period]. The Offered
[Securities] are to be issued under a pooling and servicing agreement, to be
dated as
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of _________, ____ (the "Pooling and Servicing Agreement"), among the Company,
as Sponsor, Advanta Mortgage Corp. USA, as Master Servicer, and the Trustee.
On or prior to the date of issuance of the Certificates, the
Company will obtain a guaranty insurance policy (the "Policy") issued by
[Insurer] (the "Insurer") which will unconditionally and irrevocably guarantee
to the Trustee for the benefit of the holders of the Offered [Securities] the
amount by which (i) the Fixed Rate Group Insured Distribution Amount (as defined
in the Pooling and Servicing Agreement), as applicable, for the Fixed Rate Group
[Securities] exceeds the Fixed Rate Group Total Available Funds (as defined in
the Pooling and Servicing Agreement) and (ii) the ARM Group Insured Distribution
Amount (as defined in the Pooling and Servicing Agreement), as applicable, for
the ARM Group [Securities] exceeds the ARM Group Total Available Funds (as
defined in the Pooling and Servicing Agreement).
The Offered [Securities] are more fully described in a
Registration Statement which the Company has furnished to the Underwriter[s].
Capitalized terms used but not defined herein shall have the meanings given to
them in the Pooling and Servicing Agreement.
Simultaneously with the execution of the Pooling and Servicing
Agreement, the Company will enter into a conveyance agreement pursuant to the
Master Loan Transfer Agreement dated on or about __________, ____ among the
Trustee, the Company and the Affiliated Originators named therein (together, the
"Purchase Agreement"), pursuant to which the Affiliated Originators will
transfer to the Company all of their right, title and interest in and to the
Mortgage Loans as of the Closing Date.
The Company will also enter into an Indemnification Agreement
(the "Indemnification Agreement") dated as of __________, ____ among the
Underwriter[s], the Company and the Insurer.
Section 1. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with the Underwriter[s] that:
a. Registration Statements on Form S-3, as amended by
Post-Effective Amendments thereto, have (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933 (the "Securities
Act") and the rules and regulations (the "Rules and Regulations") of the United
States Securities and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such Registration Statements have
been delivered by the Company to the Underwriter[s]. As used in this Agreement,
"Effective Time" means the date and the time as of which such Registration
Statements, 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; "Preliminary Prospectus" means each prospectus included in such
Registration Statements, or amendments thereof, including a preliminary
prospectus supplement which, as completed, is proposed to be used in connection
with the sale of the Offered [Securities] and any prospectus filed with the
Commission by the Company with the consent of the Underwriter[s] pursuant to
Rule 424(a) of the Rules and Regulations; "Registration Statement" means such
registration statements, as amended by all Post-Effective
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Amendments thereto heretofore filed with the Commission, at the Effective Time,
including any documents incorporated by reference therein at such time; and
"Prospectus" means such final prospectus, as supplemented by a final prospectus
supplement (the "Prospectus Supplement") relating to the Offered [Securities],
as first filed with the Commission pursuant to paragraph (1) or (4) of Rule
424(b) of the Rules and Regulations. Reference made herein to any Preliminary
Prospectus or to the Prospectus shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and any reference to any amendment or supplement
to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934 (the
"Exchange Act") after the date of such Preliminary Prospectus or the Prospectus,
as the case may be, and incorporated by reference in such Preliminary Prospectus
or the Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any report of the Company
filed with the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act
after the Effective Time that is incorporated by reference in the Registration
Statement. The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus. There are no contracts or documents of the
Company which are required to be filed as exhibits to the Registration Statement
pursuant to the Securities Act or the Rules and Regulations which have not been
so filed or incorporated by reference therein on or prior to the Effective Date
of the Registration Statements. The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
To the extent that [the/any] Underwriter (i) has
provided to the Company Collateral term sheets (as hereinafter defined)
that [the/such] Underwriter has provided to a prospective investor, the
Company has filed such Collateral term sheets as an exhibit to a report
on Form 8-K within two business days of its receipt thereof, or (ii)
has provided to the Company Structural term sheets or Computational
Materials (each as defined below) that [the/such] Underwriter has
provided to a prospective investor, the Company will file or cause to
be filed with the Commission a report on Form 8-K containing such
Structural term sheet and Computational Materials, as soon as
reasonably practicable after the date of this Agreement, but in any
event, not later than the date on which the Prospectus is filed with
the Commission pursuant to Rule 424 of the Rules and Regulations.
b. The Registration Statement conforms, and the Preliminary
Prospectus and the Prospectus and any further amendments or supplements to the
Registration Statement or the Preliminary Prospectus and 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 Securities Act and the Rules
and Regulations. 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 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 that no
representation or warranty is made as to information contained in or omitted
from the Registration Statement or the Prospectus
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in reliance upon and in conformity with written information furnished to the
Company in writing by the Underwriter[s] expressly for use therein.
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 Securities Act
or 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
Securities 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.
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
Company, otherwise than as set forth or contemplated in the Prospectus as
supplemented or amended as of the Closing Date.
e. The Company 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 this Agreement, the Pooling and Servicing Agreement, the Indemnification
Agreement, the Insurance Agreement, dated as of ________, ____, between the
Insurer, Master Servicer, Sponsor, Advanta Mortgage Holding Company, as Joint
Obligor and the Trustee (the "Insurance Agreement"), and the Purchase Agreement,
and to cause the [Securities] 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 Company is a party or of which any of its properties is the subject
(a) which if determined adversely to the Company would have a material adverse
effect on the business or financial condition of the Company, (b) which asserts
the invalidity of this Agreement, the Pooling and Servicing Agreement, the
Insurance Agreement, the Indemnification Agreement, the Purchase Agreement, or
the Certificates, (c) which seeks to prevent the issuance of the Certificates or
the consummation by the Company of any of the transactions contemplated by the
Pooling and Servicing Agreement, the Insurance Agreement, the Indemnification
Agreement, the Purchase Agreement or this Agreement, as the case may be, or (d)
which might materially and adversely affect the performance by the Company of
its obligations under, or the validity or enforceability of, the Pooling and
Servicing Agreement, the Insurance Agreement, the Indemnification Agreement, the
Purchase Agreement, this Agreement or the [Securities].
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g. This Agreement has been, and the Pooling and Servicing
Agreement, the Insurance Agreement, the Indemnification Agreement and the
Purchase Agreement when executed and delivered as contemplated hereby and
thereby will have been, duly authorized, executed and delivered by the Company,
and this Agreement constitutes, and the Pooling and Servicing Agreement, the
Insurance Agreement, the Indemnification Agreement and the Purchase Agreement
when executed and delivered as contemplated herein, will constitute, legal,
valid and binding instruments enforceable against the Company 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 and limitations of public policy under applicable
securities laws.
h. The execution, delivery and performance of this Agreement,
the Pooling and Servicing Agreement, the Insurance Agreement, the
Indemnification Agreement and the Purchase Agreement by the Company and the
consummation of the transactions contemplated hereby and thereby, and the
issuance and delivery of the [Securities] 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 Company is a party, by
which the Company is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such actions result in
any violation of the provisions of the articles of incorporation or by-laws of
the Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or assets.
i. [Accountants] are independent public accountants with
respect to the Company as required by the Securities Act and the Rules and
Regulations.
j. The direction by the Company to the Trustee to execute,
authenticate, issue and deliver the Certificates has been duly authorized by the
Company, and assuming the Trustee has been duly authorized to do so, when
executed, authenticated, issued and delivered by the Trustee in accordance with
the Pooling and Servicing Agreement, the [Securities] will be validly issued and
outstanding and will be entitled to the benefits provided by the Pooling and
Servicing Agreement.
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 [Securities] and the sale of the
Offered [Securities] to the Underwriter[s], or the consummation by the Company
of the other transactions contemplated by this Agreement, the Pooling and
Servicing Agreement, the Insurance Agreement, the Indemnification Agreement and
the Purchase Agreement, 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 Offered
[Securities] by the Underwriter[s] or as have been obtained.
l. The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate State, Federal or foreign
regulatory agencies or bodies
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necessary to conduct the business now conducted by it and as described in the
Prospectus, and the Company 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 the Company 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 Pooling and
Servicing Agreement, the Company will: (i) have good title to the interest in
the Mortgage Loans, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person any of its right, title or interest in the
Mortgage Loans, in the Purchase Agreement, in the Pooling and Servicing
Agreement or in the Certificates being issued pursuant thereto; and (iii) have
the power and authority to sell its interest in the Mortgage Loans to the
Trustee, on behalf of the Trust, and to sell the Offered [Securities] to the
Underwriter[s]. Upon execution and delivery of the Pooling and Servicing
Agreement by the Trustee, the Trustee will have acquired beneficial ownership of
all of the Company's right, title and interest in and to the Mortgage Loans.
Upon delivery to the Underwriter[s] of the Offered [Securities], the
Underwriter[s] will have good title to the Offered [Securities], free of any
Liens.
n. As of the opening of business on ________, ____ ( the
"Cut-Off Date"), and on each Subsequent Cut-Off Date (as defined in the Pooling
and Servicing Agreement) each of the Mortgage Loans will meet the eligibility
criteria described in the Prospectus and will conform to the descriptions
thereof contained in the Prospectus.
o. Neither the Company nor the Trust created by the Pooling
and Servicing Agreement 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 Offered [Securities] and the
Pooling and Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
q. At the Closing Date, the Offered [Securities] shall have
been rated in the highest rating category by at least two nationally recognized
rating agencies.
r. Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Pooling and Servicing Agreement, the Insurance Agreement, the Indemnification
Agreement, the Purchase Agreement and the [Securities] 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 Company set forth in the Pooling and Servicing Agreement will
be true and correct in all material respects.
Any certificate signed by an officer of the Company and
delivered to the [Representative/Underwriter] or counsel for the Underwriter[s]
in connection with an offering of the Offered [Securities] shall be deemed, and
shall state that it is, a representation and warranty
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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 Underwriter[s] to purchase the Offered [Securities]
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 Company agrees to instruct the
Trustee to issue and agrees to sell to the Underwriter[s], and the
Underwriter[s] agree[s] (except as provided in Sections 10 and 11 hereof) to
purchase from the Company the aggregate initial principal amounts of Offered
[Securities] set forth on Schedule A, at the purchase price or prices set forth
in Schedule A.
The obligations of the Underwriter[s] hereunder to purchase
the Offered [Securities] of each Class shall be several and not joint. Each
Underwriter[s]'s obligation shall be to purchase the aggregate principal amount
of Offered [Securities] as is indicated with respect to [the/each] Underwriter
under the caption "Underwriting" in the Prospectus. The rights of the Company
and a non-defaulting Underwriter shall be as set forth in Section 13 hereof.
Section 3. Delivery and Payment.
Delivery of and payment for the Offered [Securities] to be purchased by the
Underwriter[s] shall be made at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon
by the [Representative/Underwriter] and the Company at 10:00 A.M. New York City
time on _________, 1999 or at such other time or date as shall be agreed upon by
the [Representative/Underwriter] and the Company. Payment shall be made to the
Company by wire transfer of same day funds payable to the account of the
Company. Delivery of the Offered [Securities] shall be made to the
[Representative/Underwriter] for the accounts of the Underwriter[s] against
payment of the purchase price thereof. The Offered [Securities] shall be in such
denominations and registered in such names as the Company and the
[Representative/Underwriter] have agreed upon at least two business days prior
to the Closing Date. The Offered [Securities] will be made available for
examination by the [Representative/Underwriter] no later than 2:00 p.m. New York
City time on the first business day prior to the Closing Date.
Section 4. Offering by the Underwriter[s].
It is understood that, subject to the terms and conditions hereof, the
Underwriter[s] propose to offer the Offered [Securities] for sale to the public
as set forth in the Prospectus.
Section 5. Covenants of the Company.
The Company agrees as follows:
a. (i) To prepare the Preliminary Prospectus Supplement and
the Prospectus Supplement in a form approved by the [Representative/Underwriter]
and to file such Preliminary Prospectus Supplement and the Prospectus Supplement
pursuant to Rule 424(b) under the Securities Act not later than the Commission's
close of business on the second business day
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following the execution and delivery of this Agreement; (ii) to make no further
amendment or any supplement to the Registration Statement or to the Preliminary
Prospectus and the Prospectus prior to the Closing Date except as permitted
herein; (iii) to advise the [Representative/Underwriter], promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Preliminary Prospectus and the Prospectus or any amended Preliminary Prospectus
or the Prospectus has been filed and to furnish the [Representative/Underwriter]
with copies thereof; (iv) to file promptly all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Preliminary Prospectus and the Prospectus and, for
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Offered [Securities]; and (v) to promptly advise the
[Representative/Underwriter] of its receipt of notice of the issuance by the
Commission of any stop order or of: (w) any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus; (x) the suspension of the
qualification of the Offered [Securities] for offering or sale in any
jurisdiction; (y) the initiation of or threat of any proceeding for any such
purpose; (z) 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 any Preliminary Prospectus or the Prospectus or suspending
any such qualification, the Company promptly shall use its best efforts to
obtain the withdrawal of such order or suspension.
b. To furnish promptly to the [Representative/Underwriter] and
to counsel for the Underwriter[s] 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 [Representative/Underwriter]
such number of the following documents as the [Representative/Underwriter] 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) each Preliminary Prospectus, 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 Offered
[Securities], 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
Securities Act or the Exchange Act, the Company shall notify the
[Representative/Underwriter] and, upon the [Representative/Underwriter]'s
request, shall file such document and prepare and furnish without charge to the
Underwriter[s] and to any dealer in securities as many copies as the
[Representative/Underwriter] 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 any of the
Underwriter[s] are required to deliver a
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Prospectus in connection with sales of any of the Offered [Securities] at any
time nine months or more after the Effective Time, upon the request of the
[Representative/Underwriter] but at the expense of such Underwriter, the Company
shall prepare and deliver to such Underwriter as many copies as such Underwriter
may reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Securities 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 Company or the [Representative/Underwriter], be
required by the Securities Act or requested by the Commission.
e. Prior to filing with the Commission any (i) Preliminary
Prospectus, (ii) amendment to the Registration Statement or supplement to the
Prospectus, or document incorporated by reference in the Prospectus, or (iii)
Prospectus pursuant to Rule 424 of the Rules and Regulations, to give at least
three business days prior notification to the [Representative/Underwriter] and
to furnish a copy thereof to the [Representative/Underwriter] and counsel for
the Underwriter[s], provided, however, that if any of the foregoing filings
referred to in (i), (ii), or (iii) relate to the Offered [Securities], the
Company shall obtain the consent of the [Representative/Underwriter] to such
filing, which consent shall not be unreasonably withheld.
f. To make generally available to holders of the Offered
[Securities] as soon as practicable, but in any event not later than 90 days
after the close of the period covered thereby, a statement of earnings of the
Trust (which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the Company, Rule
158) and covering a period of at least twelve consecutive months beginning not
later than the first day of the first fiscal quarter following the Closing Date.
g. To use its best efforts, in cooperation with the
[Representative/Underwriter], to qualify the Offered [Securities] for offering
and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the [Representative/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 Offered [Securities].
The Company will file or cause the filing of such statements and reports as may
be required by the laws of each jurisdiction in which the Offered [Securities]
have been so qualified.
h. Not, without the [Representative's/Underwriter's] prior
written consent, which consent shall not be unreasonably withheld, 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 Company for a period of 5 business days following the commencement of the
offering of the Offered [Securities] to the public.
i. So long as the Offered [Securities] shall be outstanding,
to deliver to the [Representative/Underwriter] as soon as such statements are
furnished to the Trustee: (i) the annual statement as to compliance delivered to
the Trustee pursuant to Article VII of the Pooling and Servicing Agreement; (ii)
the annual statement of a firm of independent public accountants
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furnished to the Trustee pursuant to Article VIII of the Pooling and Servicing
Agreement; and (iii) the Monthly Statement furnished to the Certificateholders
pursuant to Article VII of the Pooling and Servicing Agreement.
j. To apply the net proceeds from the sale of the Offered
[Securities] in the manner set forth in the Prospectus.
Section 6. Conditions to the [Underwriters'/Underwriter's]
Obligations.
The obligations of the Underwriter[s] to purchase the Offered [Securities]
pursuant to this Agreement are subject to: (i) the accuracy on and as of the
Closing Date of the representations and warranties on the part of the Company
herein contained; (ii) the performance in all material respects by the Company
of all of their respective obligations hereunder; and (iii) the following
conditions as of the Closing Date:
a. The [Representative/Underwriter] 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. None of the Underwriter[s] shall have discovered and
disclosed to the Company 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
[Counsel], counsel for the Underwriter[s], 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 this Agreement, the Pooling and
Servicing Agreement, the Purchase Agreement, the Insurance Agreement, the
Indemnification Agreement, the Certificates, 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 Underwriter[s], and the Company 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 [Representative/Underwriter] shall have received the
favorable opinion of Xxxxx Xxxxxxxxxx LLP, special counsel to the Company with
respect to the following items, dated the Closing Date, to the effect that:
1. The Company has been duly organized and
is validly existing as a corporation in good standing under
the laws of the State of Nevada, and is qualified to do
business in each state necessary to enable it to perform its
obligations as Sponsor under the Pooling and Servicing
Agreement. The Company has the requisite power and authority
to execute and deliver, engage in the transactions
contemplated by, and perform and observe the conditions of,
this Agreement, the Insurance Agreement, the Pooling and
Servicing Agreement, the
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Insurance Agreement, the Indemnification Agreement and the
Purchase Agreement.
2. This Agreement, the Certificates, the
Pooling and Servicing Agreement, the Insurance Agreement, the
Indemnification Agreement and the Purchase Agreement have been
duly and validly authorized, executed and delivered by the
Company, all requisite corporate action having been taken with
respect thereto, and each (other than the Certificates)
constitutes the valid, legal and binding agreement of the
Company.
3. Neither the transfer of the Mortgage
Loans to the Trust Estate, the issuance or sale of the
Certificates nor the execution, delivery or performance by the
Company of the Pooling and Servicing Agreement, this
Agreement, the Insurance Agreement, the Indemnification
Agreement or the Purchase Agreement (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 bylaws of
the Company; (ii) any term or provision of any material
agreement, contract, instrument or indenture, to which the
Company 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 Company and known to such counsel; or
(B) results in, or will result in the creation or imposition
of any lien, charge or encumbrance upon the Trust Estate or
upon the Certificates, except as otherwise contemplated by the
Pooling and Servicing Agreement.
4. With respect to the Mortgage Loans, the
endorsement and delivery of each Note, and the preparation,
delivery and recording of an Assignment in each case with
respect to each Mortgage is sufficient to fully transfer to
the Trustee for the benefit of the Owners of the Certificates
all right, title and interest of the Company in the Note 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 Trustee to avail itself of all
protection available under applicable law against the claims
of any present or future creditors of the Company and to
prevent any other sale, transfer, assignment, pledge or other
encumbrance of the Mortgage Loans by the Company from being
enforceable.
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 Pooling and Servicing
Agreement, this Agreement, the Insurance Agreement, the
Indemnification Agreement, the Purchase Agreement or the
offer, issuance, sale or delivery of the Offered [Securities]
or the consummation of any other transaction contemplated
thereby by the Company, except such which have been obtained.
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6. There are no actions, proceedings or
investigations, to such counsel's knowledge, pending or
threatened against the Company before any court, governmental
agency or body or other tribunal (i) asserting the invalidity
of the Pooling and Servicing Agreement, the Insurance
Agreement, the Indemnification Agreement, this Agreement, the
Purchase Agreement or the Certificates, (ii) seeking to
prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by the Pooling and
Servicing Agreement, the Indemnification Agreement, or this
Agreement, (iii) which would materially and adversely affect
the performance by the Company of obligations under, or the
validity or enforceability of, the Pooling and Servicing
Agreement, the Insurance Agreement, the Indemnification
Agreement, the Certificates, the Purchase Agreement or this
Agreement or (iv) that would adversely affect the status of
the Trust Estate as a "real estate mortgage investment
conduit" ("REMIC") as such term is defined in the Internal
Revenue Code of 1986, as amended.
7. To the best of the 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 Offered
[Securities] (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 1933 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. Neither the qualification of the Pooling
and Servicing Agreement under the Trust Indenture Act of 1939
nor the registration of the Trust created by such Pooling and
Servicing Agreement under the Investment Company Act of 1940
is presently required.
10. The statements in the Prospectus set
forth under the captions "DESCRIPTION OF THE SECURITIES," "THE
POOLING AND SERVICING AGREEMENT" and the statements in the
Prospectus Supplement set forth under the caption "DESCRIPTION
OF THE CERTIFICATES," to the extent such statements purport to
summarize certain provisions of the Offered [Securities] or of
the Pooling and Servicing Agreement, are fair and accurate in
all material respects.
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11. 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 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.
12. Assuming that (a) the Trustee causes the
Trust created under the Pooling and Servicing Agreement to
elect, as the Trustee has covenanted to do in the Pooling and
Servicing Agreement, to be treated as a REMIC and (b) the
parties to the Pooling and Servicing Agreement comply with the
terms thereof, the Trust will be treated as a REMIC, the
Offered [Securities] issued pursuant to the Pooling and
Servicing Agreement will be treated as the "regular interests"
in a REMIC and the [Residual] Certificates issued pursuant to
the Pooling and Servicing Agreement will be treated as
"residual interests" in a REMIC. Assuming that the Trust
issues debt securities, the securities will be treated as debt
and the Trust will not be treated as an association or a
publicly traded partnership taxable as a corporation or a
taxable mortgage pool. The Trust will not be subject to tax
upon its income or assets by any taxing authority of the State
of New York or New York City or of the State of California
(except that no opinion need be expressed with respect to any
minimum tax).
13. Such opinion shall also relate to
comparable matters with respect to the Affiliated Originators
and Advanta Mortgage Holding Company.
14. 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.
15. Such other matters as the
[Representative/Underwriter] 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
Company, the 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 Company.
e. The [Representative/Underwriter] shall have received
letters, including bring-down letters, from [Accountants], dated on or before
the Closing Date, in form and substance satisfactory to the
[Representative/Underwriter] and counsel for the Underwriter[s], to the effect
that they have performed certain specified procedures requested by the
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[Representative/Underwriter] with respect to the information set forth in the
Prospectus and certain matters relating to the Company.
f. The Offered [Securities] shall have received the ratings
listed on Schedule A hereto, and such ratings shall not have been rescinded or
downgraded as of the Closing Date. The [Representative/Underwriter] and counsel
for the Underwriter[s] shall have received copies of any opinions of counsel
supplied to the rating organizations relating to any matters with respect to the
Offered [Securities]. Any such opinions shall be dated the Closing Date and
addressed to the Underwriter[s] or accompanied by reliance letters to the
Underwriter[s] or shall state that the Underwriter[s] may rely upon them.
g. The [Representative/Underwriter] shall have received from
the Company a certificate, signed by the president, a senior vice president or a
vice president of the Company, dated the Closing Date, to the effect that the
signer of such certificate has carefully examined the Registration Statement,
the Pooling 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
Company in this Agreement, as of the Closing Date, and in the
Pooling and Servicing Agreement, the Insurance Agreement, the
Indemnification Agreement, the Purchase Agreement and in all
related agreements, as of the date specified in such
agreements, are true and correct, and the Company 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 Company which if adversely determined,
individually or in the aggregate, would be reasonably likely
to adversely affect the Company's obligations under the
Pooling and Servicing Agreement, the Insurance Agreement, the
Indemnification Agreement, this Agreement or the Purchase
Agreement in any material way; and no merger, liquidation,
dissolution or bankruptcy of the Company is pending or
contemplated;
3. the information contained in the
Registration Statement and the Prospectus relating to the
Company, 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
Pooling and Servicing Agreement is true and correct in all
material respects;
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15
5. there has been no amendment or other
document filed affecting the articles of incorporation or
bylaws of the Company since ________, ____, and no such
amendment has been authorized. No event has occurred since
________, ____, which has affected the good standing of the
Company under the laws of the State of Nevada;
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 Company and its subsidiaries,
taken as a whole, from _________, ___.
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, if any, accorded the Company or in any rating
accorded any securities of the Company, if any, by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of the 1933 Act; and
8. each person who, as an officer or
[Representative/Underwriter] of the Company, signed or signs
the Registration Statement, the Pooling and Servicing
Agreement, the Insurance Agreement, the Indemnification
Agreement, this Agreement, 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 Pooling and Servicing Agreement,
the Insurance Agreement, the Indemnification Agreement, the
Purchase Agreement and this Agreement 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/Underwriter], and the signatures of such
persons appearing on such documents are their genuine
signatures.
The Company shall attach to such certificate a true and
correct copy of its certificate or articles of incorporation, as appropriate,
and bylaws 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 [Representative/Underwriter] shall have received a
favorable opinion of counsel to the Trustee, dated the Closing Date and in form
and substance satisfactory to the [Representative/Underwriter], to the effect
that:
1. the 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 Pooling and Servicing Agreement;
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2. the Pooling and Servicing Agreement has
been duly authorized, executed and delivered by the Trustee
and the Pooling and Servicing Agreement constitutes the legal,
valid and binding obligation of the Trustee, enforceable
against the 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 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 Trustee in connection
with its execution and delivery of the Pooling and Servicing
Agreement or the performance of its obligations thereunder;
4. the Offered [Securities] have been duly
executed, authenticated and delivered by the Trustee; and
5. the execution and delivery of, and
performance by the Trustee of its obligations under, the
Pooling and Servicing Agreement do not conflict with or result
in a violation of any statute or regulation applicable to the
Trustee, or the charter or bylaws of the Trustee, or to the
best knowledge of such counsel, any governmental authority
having jurisdiction over the Trustee or the terms of any
indenture or other agreement or instrument to which the
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 Company, the
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 Trustee.
i. The [Representative/Underwriter] shall have received from
the Trustee a certificate, signed by the President, a senior vice president or a
vice president of the Trustee, dated the Closing Date, to the effect that each
person who, as an officer or [Representative/Underwriter] of the Trustee, signed
or signs the Offered [Securities], the Pooling and Servicing Agreement or any
other document delivered pursuant hereto, on the date hereof or on the Closing
Date, in connection with the transactions described in the Pooling and Servicing
Agreement 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/Underwriter], and the signatures of such persons appearing on
such documents are their genuine signatures.
j. The Policy relating to the Offered [Securities] 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.
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k. The [Representative/Underwriter] shall have received a
favorable opinion of in-house counsel to the Insurer, dated the Closing Date and
in form and substance satisfactory to counsel for the Underwriter[s], to the
effect that:
1. The Insurer is a stock insurance
corporation, duly incorporated and validly existing under the
laws of the State of [State]. The Insurer is validly licensed
and 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 and the
Indemnification 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 Policy form 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 breach of or
constitute a default under any of the terms, provisions or
conditions of the 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 affect the validity or enforceability
of the Policy, (a) contravene any law or government
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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 Securities Act.
7. The information set forth under the
caption "THE CERTIFICATE INSURANCE POLICY" and "THE
CERTIFICATE INSURER" in the Prospectus forming a part of the
Registration Statement, 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 Company, the
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. 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 Insurer's
claims paying ability by any "nationally recognized statistical rating
organization," as such term is defined for purposes of the 1933 Act.
m. 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 Company or in
any rating accorded any securities of the Company, if any, by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of the 1933 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 [________, ____], of (A) the Company
and its subsidiaries or (B) the Insurer, that is in the
[Representative/Underwriter]'s judgment material and adverse and that makes it
in the [Representative/Underwriter]'s judgment impracticable to market the
Offered [Securities] on the terms and in the manner contemplated in the
Prospectus.
o. The [Representative/Underwriter] 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 at equity or before
or by any court, governmental agency, board or commission or
any arbitrator which, if adversely determined, would
materially and adversely affect the Insurer's condition
(financial or otherwise) or operations or which
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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 under the captions "THE CERTIFICATE INSURANCE
POLICY" and "THE CERTIFICATE INSURER" (the "Certificate
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 Certificate 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 CERTIFICATE
INSURER" in the Prospectus present fairly the capitalization
of the Insurer as of [________, ____];
4. The consolidated financial statements of
the Insurer as of [________, ____] and [_________, ____] and
for each of the three years ended [________, ____]
incorporated by reference in the Prospectus Supplement (the
"Certificate Insurer Audited Financial Statements"), 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 consolidated financial
statements of the Insurer and its subsidiaries for the nine
months ended [________, ____] and for the periods ending
[________, ____] and [_________, ____] include in the
Quarterly Report on Form 10-Q of the Insurer for the period
ending [________, ____] incorporated by reference into the
Prospectus Supplement (the "(Certificate Insurer Unaudited
Financial Statements") present fairly 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 in a manner
consistent with the accounting principles used in preparing
the Insurer Audited Statements and since [________, ____]
there has been no material change in such financial condition
of the Insurer which would materially and adversely affect its
ability to perform its obligations under 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 of By-Laws of the Insurer,
or any agreement indenture or other instrument to which the
Insurer is a party.
6. 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
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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.
The Insurer shall attach to such certificate a true and
correct copy of its certificate or articles of incorporation, as appropriate,
and its bylaws, all of which are in full force and effect on the date of such
certificate.
p. The [Representative/Underwriter] shall have received from
Xxxxx Xxxxxxxxxx LLP, special counsel to the Company, a survey in form and
substance satisfactory to the [Representative/Underwriter], indicating the
requirements of applicable local law which must be complied with in order to
transfer and service the Mortgage Loans pursuant to the Pooling and Servicing
Agreement and the Company shall have complied with all such requirements.
q. The [Representative/Underwriter] shall have received from
[Counsel], special counsel to the Underwriter[s], such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the Offered
[Securities], the Prospectus and such other related matters as the
[Representative/Underwriter] shall reasonably require.
r. The [Representative/Underwriter] and counsel for the
Underwriter[s] shall have received copies of any opinions of counsel to the
Company supplied to the Trustee relating to matters with respect to the
Certificates. Any such opinions shall be dated the Closing Date and addressed to
the Underwriter[s] or accompanied by reliance letters to the Underwriter[s] or
shall state the Underwriter[s] may rely thereon.
s. The [Representative/Underwriter] shall have received such
further information, certificates and documents as the
[Representative/Underwriter] may reasonably have requested not fewer than three
(3) full business days prior to the Closing Date.
t. There shall have been executed and delivered by Advanta
Mortgage Holding Company, the corporate parent of the Company ("AMHC"), a letter
agreement with the Trustee and the Insurer, pursuant to which AMHC agrees to
become jointly and severally liable with the Company and Advanta Mortgage Corp.
USA for the payment of the Joint and Several Obligations (as defined in such
letter agreement).
u. There shall have been executed and delivered by AMHC, the
corporate parent of the Company, a letter agreement with the Underwriter[s] and
the Insurer substantially in the form of Exhibit A hereto, pursuant to which
AMHC agrees to become jointly and severally liable with the Company and Advanta
Mortgage Corp. USA for the payment of the Joint and Several Obligations (as
defined in such letter agreement).
v. Prior to the Closing Date, counsel for the Underwriter[s]
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 Offered [Securities] as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of
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any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained, and all proceedings taken by the Company in
connection with the issuance and sale of the Offered [Securities] as herein
contemplated shall be satisfactory in form and substance to the
[Representative/Underwriter] and counsel for the Underwriter[s].
w. 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; (ii) a banking moratorium shall have been declared by
Federal or state authorities; (iii) 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 (iv) 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
[Representative/Underwriter], impractical or inadvisable to proceed with the
public offering or delivery of the Offered [Securities] on the terms and in the
manner contemplated in the Prospectus.
x. The Offered [Securities] shall have received the ratings
set forth on Schedule A hereto.
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 [Representative/Underwriter] by notice to the Company 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 certificates 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 Underwriter[s].
Section 7. Payment of Expenses.
The Company agrees to pay: (a) the costs incident to the authorization,
issuance, sale and delivery of the Offered [Securities] and any taxes payable in
connection therewith; (b) the costs incident to the preparation, printing and
filing under the Securities 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 Preliminary Prospectus, 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
fees and expenses of qualifying the Offered [Securities] under the securities
laws of the several jurisdictions as provided in Section 5(g) hereof and of
preparing, printing and distributing a Blue Sky Memorandum and a Legal
Investment Survey (including related fees and expenses of counsel to the
Underwriter[s]); (e) any fees charged by securities rating services for rating
the Offered [Securities]; (f) the costs and
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expenses of Xxxxx Xxxxxxxxxx LLP, counsel to the Company; and (g) all other
costs and expenses incident to the performance of the obligations of the
Company; provided that, except as provided in this Section 7, the Underwriter[s]
shall pay their own costs and expenses, including the costs and expenses of
[Counsel], any transfer taxes on the Offered [Securities] which they may sell
and the expenses of advertising any offering of the Offered [Securities] made by
the Underwriter[s].
If this Agreement is terminated by the
[Representative/Underwriter], in accordance with the provisions of Section 6 or
Section 10, the Company shall reimburse the Underwriter[s] for their respective
reasonable out-of-pocket expenses, including fees and disbursements of
[Counsel], counsel for the Underwriter[s].
Section 8. Indemnification and Contribution.
a. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act from and against any and all loss,
claim, damage or liability, joint or several, 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 Offered [Securities]), to which such
Underwriter or any such controlling person may become subject, under the
Securities 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 such 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 Company 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 any Preliminary Prospectus, the Prospectus or the
Registration Statement in reliance upon and in conformity with written
information (including any Derived Information) furnished to the Company through
the [Representative/Underwriter] specifically for inclusion therein; and
provided, further, that as to any Preliminary Prospectus this indemnity shall
not inure to the benefit of any Underwriter or any controlling person on account
of any loss, claim, damage, liability or action arising from the sale of the
Offered [Securities] to any person by such Underwriter if such Underwriter
failed to send or give a copy of the Prospectus, as amended or supplemented, to
that person within the time required by the Securities Act, and the untrue
statement or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact in the Preliminary Prospectus was
corrected in the Prospectus, unless such failure resulted from non-compliance by
the Company with Section 5(c). 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 none of the
Underwriter[s] shall be obligated to send or give any
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23
supplement or amendment to any document incorporated therein by reference to any
person other than a person to whom such Underwriter had 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
Company may otherwise have to any Underwriter[s] or any controlling person of
such Underwriter.
b. [The/Each] Underwriter agrees [severally, and not jointly]
to indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
against any and all loss, claim, damage or liability, or any action in respect
thereof, to which the Company or any such director, officer or controlling
person may become subject, under the Securities 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 furnished to the Company by or on behalf of [the/such] Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company 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/any] Underwriter may otherwise have to the Company 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, 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
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24
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
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 the Underwriter[s], if the indemnified
parties under this Section 8 consist of the Underwriter[s] or any of their
controlling persons, or by the Company, if the indemnified parties under this
Section 8 consist of the Company or any of the Company'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. [The/Each] Underwriter agrees to deliver to the Company no
later than the date on which the Preliminary Prospectus Supplement and the
Prospectus Supplement is required to be filed pursuant to Rule 424 with a copy
of its Derived Information (defined below) for filing with the Commission on
Form 8-K.
e. [The/Each] Underwriter agrees, assuming all
Company-Provided Information (defined below) is accurate and complete in all
material respects, to severally and not jointly
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25
indemnify and hold harmless the Company, each of the Company's officers and
directors and each person who controls the Company within the meaning of Section
15 of the Securities Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
Securities 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, 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 [each of] the Underwriter[s] under this Section 8(e) shall be
in addition to any liability which such Underwriter 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
Company 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 Company-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).
"Company-Provided Information" means any computer tape
furnished to the Underwriter[s] by the Company concerning the Mortgage Loans
comprising all or a portion of the Trust Estate.
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, Xxxxx & Xxxxxxxx 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 "Xxxxxx letter" and together with the PSA Letter, the "No-Action
Letters") of Xxxxx & Xxxx on behalf of Xxxxxx, 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,
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26
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, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriter[s] on the other from
the offering of the Offered [Securities] 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 Company on the one hand and the
Underwriter[s] 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 Underwriter[s] and the Company
shall be deemed to be in such proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions.
The relative fault of the Underwriter[s] and the Company 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 Company or by one of the Underwriter[s], 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 Company and the Underwriter[s] 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.
h. For purposes of this Section 8, in no case shall [the/any]
Underwriter be responsible for any amount in excess of (x) the amount received
by [the/such] Underwriter in connection with its resale of the Offered
[Securities] over (y) the amount paid by [the/such] Underwriter to the Company
for the Offered [Securities] purchased by [the/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.
i. The Underwriter[s] [confirms/severally confirm] that the
information set forth (i) in the Prospectus Supplement relating to market making
and (ii) in the third paragraph 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 Company by or on
behalf of the Underwriter[s] specifically for inclusion in the Registration
Statement and the Prospectus.
Section 9. Representations, Warranties and Agreements to
Survive Delivery.
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27
All representations, warranties and agreements contained in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter[s] or controlling persons
thereof, or by or on behalf of the Company and shall survive delivery of any
Offered [Securities] to the Underwriter[s].
Section 10. Termination of Agreement.
The [Representative/Underwriter] may terminate this Agreement immediately upon
notice to the Company, at any time at or prior to the Closing Date if any of the
events or conditions described in Section 6(w) of this Agreement shall occur and
be continuing. In the event of any such termination, the covenant set forth in
Section 5(g), the provisions of Section 7, the indemnity agreement set forth in
Section 8, and the provisions of Sections 8 and 9 shall remain in effect.
Section 11. Notices.
All statements, requests, notices and agreements hereunder shall be in
writing, and:
a. if to the Underwriter[s], shall be delivered or sent by
mail, telex or facsimile transmission to [Underwriter/Representative], as
[Underwriter/Representative of the Underwriters], [Address], Attention:
[_________] (fax: (___) ________);
b. if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to Advanta Conduit Receivables, Inc. 00000
Xxxxxx Xxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 Attention: General Counsel
(Fax: 000-000-0000).
Section 12. Persons Entitled to the Benefit of this Agreement.
This Agreement shall inure to the benefit of and be binding upon the
Underwriter[s] and the Company, 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 control the Underwriter[s] within the meaning of
Section 15 of the Securities Act, and for the benefit of directors of the
Company, officers of the Company who have signed the Registration Statement and
any person controlling the Company within the meaning of Section 15 of the
Securities 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
Offered [Securities] which it is obligated to purchase hereunder (the "Defaulted
Certificates"), the remaining Underwriter[s] (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 Certificates upon the terms herein set forth; if, however, the
Non-Defaulting
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28
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
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any 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
Company and the Underwriter[s] 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 Certificates 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.]
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If the foregoing correctly sets forth the agreement between
the Company and the Underwriter[s], 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:
[UNDERWRITER/REPRESENTATIVE],
as [Representative/Underwriter of the Underwriter[s]]
By: ______________________________
Name:
Title:
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30
-------------------------------------------------------------------------------------------------------------
SCHEDULE A
-------------------------------------------------------------------------------------------------------------
INITIAL PRINCIPAL
AMOUNT OF OFFERED PURCHASE PRICE TO
[SECURITIES] UNDERWRITER[S]
REQUIRED RATINGS PURCHASED BY DISREGARDING
CLASS [RATING AGENCIES] UNDERWRITER[S] COUPON ACCRUED INTEREST
-------------------------------------------------------------------------------------------------------------
[First Class] $____________ [Fixed/ __________%(1)
Variable]
-------------------------------------------------------------------------------------------------------------
[Second Class] $____________ [Fixed/ __________%(1)
Variable]
-------------------------------------------------------------------------------------------------------------
-----------------
(1) Such amount does not include the accrued interest from ____________, _____.
- 1 -
31
SCHEDULE I
[List of Underwriters]
- 2 -
32
[_____________, _____]
ADVANTA MORTGAGE HOLDING COMPANY GUARANTY
[Underwriter/[Representative]
As Representative of the Underwriters
named in Schedule I]
[Underwriter's/Representative's Address]
[Insurer]
[Insurer's Address]
Re: Underwriting Agreement dated [___________, _____]
(the "Underwriting Agreement") between Advanta
Conduit Receivables, Inc. ("Advanta") and
[[Underwriter] (the "Underwriter"/[Representative], as
representative of the Underwriters (the
"Representative")] and the Indemnification Agreement
dated as of [___________, _____] (the "Indemnification
Agreement") among [Insurer] (the "Insurer"), Advanta
and [Underwriter/Representative]
----------------------------------------------------
Ladies and Gentlemen:
Pursuant to the Underwriting Agreement and the Indemnification
Agreement (together, the "Designated Agreements"), Advanta has undertaken
certain financial obligations with respect to the indemnification of the
Underwriter[s] and the Insurer with respect to the Registration Statement, the
Prospectus and the Prospectus Supplement described in the Designated Agreements.
Any financial obligations of Advanta under the Designated Agreements, whether or
not specifically enumerated in this paragraph, are hereinafter referred to as
the "Joint and Several Obligations"; provided, however, the "Joint and Several
Obligations" shall mean only the financial obligations of Advanta under the
Designated Agreements (including the payment of money damages for a breach of
any of Advanta's obligations under the Designated Agreement, 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 Indemnification Agreement, the Underwriter[s]
and the Insurer have required the undersigned, Advanta Mortgage Holding Company
("AMHC"), the parent corporation of Advanta, to acknowledge its
joint-and-several liability with Advanta for the payment of the Joint and
Several Obligations under the Designated Agreements.
Now, therefore, the Underwriter[s], the Insurer and AMHC do hereby agree that:
33
(i) AMHC hereby agrees to be absolutely and
unconditionally jointly and severally liable with
Advanta to the Underwriter[s] for the payment of the
Joint and Several Obligations under the Underwriting
Agreement.
(ii) AMHC hereby agrees to be absolutely and
unconditionally jointly and severally liable with
Advanta to the Insurer for the payment of the Joint
and Several Obligations under the Indemnification
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 and to the Insurer by
Advanta or another affiliate of AMHC.
Capitalized terms used herein and not defined herein shall
have their respective meanings set forth in the Agreement.
2
34
Very truly yours,
ADVANTA MORTGAGE HOLDING COMPANY
By: ______________________________
Name: [Officer]
Title: [Officer's Title]
[UNDERWRITER/REPRESENTATIVE,
as Representative of the Underwriters]
By: _____________________________
Name:
Title:
[INSURER]
By: _____________________________
Name:
Title:
AMHC Guaranty to the Underwriter[s]
3
