<PAGE> 1
Exhibit 1.1
<PAGE> 2
EXECUTION COPY
ADVANTA CONDUIT RECEIVABLES, INC. May 19, 2000
Mortgage Loan Asset-Backed Certificates,
Series 2000-1
UNDERWRITING AGREEMENT
MORGAN STANLEY & CO. INCORPORATED
As Representative of the Underwriters (the "Representative")
named in Schedule I
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
Advanta Conduit Receivables, Inc. (the "Company") has authorized the
issuance and sale of Mortgage Loan Asset-Backed Certificates, Series 2000-1,
consisting of (i) the Class A-1 Certificates (the "Class A-1 Certificates") ,
(ii) the Class A-2 Certificates (the "Class A-2 Certificates" ), (iii) the Class
A-3 Certificates (the "Class A-3 Certificates"), (iv) the Class A-4 Certificates
(the "Class A-4 Certificates"), (v) the Class A-5 Certificates (the "Class A-5
Certificates"), (vi) the Class A-6 Certificates (the "Class A-6 Certificates"
and together with the Class A-1 Certificates, Class A-2 Certificates, the Class
A-3 Certificates, the Class A-4 Certificates and the Class A-5 Certificates, the
"Fixed Rate Group Certificates"), (vii) the Class A-7 Certificates (the "Class
A-7 Certificates" or the "ARM Group Certificates", and together with the Fixed
Rate Group Certificates, the "Offered Certificates"), (viii) the Class B
Certificates, (ix) the Class BS Certificates, (x) the residual class with
respect to the Upper-Tier REMIC held by the Trust (the "Class R-I Certificates")
and (xi) the residual class with respect to the Lower-Tier REMIC held by the
Trust (the "Class R-II Certificates", and together with the Class R-I
Certificates, the "Class R Certificates", the Class R Certificates together with
the Offered Certificates, the Class B Certificates and the Class BS
Certificates, the "Certificates"). Only the Offered Certificates are offered by
the Underwriters.
The Offered Certificates will be issued by the Advanta Mortgage Loan
Trust 2000-1 (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 Bankers Trust Company of California, N.A., 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 May 24, 2000 (the "Closing Date"), an aggregate
principal balance of approximately $362,450,000 and the Pre-Funding Account
shall have approximately $41,200,000, of which an amount equal to $28,700,000
may
<PAGE> 3
be applied to the purchase of additional loans for the Fixed Rate Group and an
amount equal to approximately $12,500,000 may be applied to the purchase of
additional loans for the ARM Group during the period from the Closing Date to on
or before July 31, 2000. The Offered Certificates are to be issued under a
pooling and servicing agreement, to be dated as of May 1, 2000 (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 certificate guaranty insurance policy (the "Policy") issued by
Ambac Assurance Corporation (the "Insurer") which will unconditionally and
irrevocably guarantee to the Trustee for the benefit of the holders of the
Offered Certificates the amount equal to the sum of (i) Group I Insured Payment
(as defined in the Pooling and Servicing Agreement), for the Fixed Rate Group
Certificates and (ii) the Group II Insured Payment (as defined in the Pooling
and Servicing Agreement), for the ARM Group Certificates.
The Offered Certificates are more fully described in a Registration
Statement which the Company has furnished to the Underwriters. 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
Mortgage Loan Transfer Agreement dated on or about May 1, 2000 among the
Trustee, Advanta Conduit Receivables, Inc. and the Originators named therein
(together, the "Purchase Agreement"), pursuant to which the 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 Underwriters and the Insurer will also enter into an
Indemnification Agreement (the "Indemnification Agreement") dated as of May 19,
2000.
Section 1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with the Underwriters that:
a. A Registration Statement on Form S-3 (registration
statement number 333-92669), 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 Statement
has been delivered by the Company to the Underwriters. 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; "Registration Statement" means
such registration statement, as amended by all Post-Effective Amendments
thereto heretofore filed with the Commission, at the Effective Time,
including any documents incorporated by reference therein at such time;
and "Prospectus" means each prospectus
-2-
<PAGE> 4
included in such Registration Statement or amendments thereof and any
prospectus filed with the Commission by the Company with the consent of
the Underwriters pursuant to Rule 424(a) of the Rules and Regulations and
such final prospectus, as supplemented by a final prospectus supplement
(the "Prospectus Supplement") relating to the Offered Certificates, 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 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 Prospectus, as the case may be,
and any reference to any amendment or supplement to the Prospectus shall
be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") after the date of
such Prospectus, as the case may be, and incorporated by reference in such
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. 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 Statement.
The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
To the extent that any Underwriter (i) has provided to the
Company Collateral Term Sheets (as hereinafter defined) that 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 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 Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the
requirements of the 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
-3-
<PAGE> 5
representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company in
writing by the Underwriters 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 and
Indemnity Agreement, dated as of May 24, 2000, between the Insurer, the
Master Servicer, the Company and the Trustee (the "Insurance Agreement"),
and the Purchase Agreement, and to cause the Certificates to be issued.
f. Except as disclosed in the Prospectus Supplement, 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
-4-
<PAGE> 6
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 Certificates.
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,
the Insurance 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 Certificates 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. Arthur Andersen LLP 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 Certificates will
be validly issued and outstanding and will be entitled to the benefits
provided by the Pooling and Servicing Agreement.
-5-
<PAGE> 7
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 Certificates and the
sale of the Offered Certificates to the Underwriters, 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 Certificates by the
Underwriters 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 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 or will cause the Trust to: (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 or cause the sale of the Mortgage Loans
to the Trustee, on behalf of the Trust, and to sell the Offered
Certificates to the Underwriters. 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 Underwriters
of the Offered Certificates, the Underwriters will have good title to the
Offered Certificates, free of any Liens.
n. As of the opening of business on May 1, 2000 (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, as amended (the "1940
Act") and the rules and regulations of the Commission thereunder.
-6-
<PAGE> 8
p. At the Closing Date, the Offered Certificates 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 Certificates 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 Certificates
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 or counsel for the Underwriters in connection with an
offering of the Offered Certificates shall be deemed, and shall state that it
is, a representation and warranty as to the matters covered thereby to each
person to whom the representations and warranties in this Section 1 are made.
Section 2. Purchase and Sale. The commitment of the Underwriters to
purchase the Offered Certificates 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
Underwriters, and the Underwriters agree (except as provided in Sections 10 and
11 hereof) to purchase from the Company the aggregate initial principal amounts
of Offered Certificates set forth on Schedule A, at the purchase price or prices
set forth in Schedule A.
The obligations of the Underwriters hereunder to purchase the
Offered Certificates of each Class shall be several and not joint. Each
Underwriter's obligation shall be to purchase the aggregate principal amount of
Offered Certificates as is indicated with respect to 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 Certificates to be purchased by the Underwriters shall be made at the
offices of Dewey Ballantine LLP, 1301 Sixth Avenue, New York, New York 10019, or
at such other place as shall be agreed upon by the Representative and the
Company at 10:00 A.M. New York City time on May 24, 2000 or at such other time
or date as shall be agreed upon by the Representative 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 Certificates shall be made to
the Representative for the accounts of the Underwriters against payment of the
purchase price thereof. The Offered Certificates shall be in such denominations
and registered in such names as
-7-
<PAGE> 9
the Company and the Representative have agreed upon at least two business
days prior to the Closing Date. The Offered Certificates will be made
available for examination by the Representative 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 Underwriters. It is understood that,
subject to the terms and conditions hereof, the Underwriters propose to offer
the Offered Certificates 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 Prospectus Supplement in a form approved
by the Representative and to file such 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 following the execution and
delivery of this Agreement; (ii) to make no further amendment or any
supplement to the Registration Statement or to the Prospectus prior to the
Closing Date except as permitted herein; (iii) to advise the
Representative, 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 Prospectus or any amended Prospectus
has been filed and to furnish the Representative 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 Prospectus and, for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Offered Certificates; and (v) to promptly advise the Representative 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 the Prospectus; (x)
the suspension of the qualification of the Offered Certificates 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 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, upon request, to the Representative
and to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, and of each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
c. To deliver promptly to the Representative such number of
the following documents as the Representative 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 Prospectus and any amended or supplemented
Prospectus; and (iii) any document incorporated by reference
-8-
<PAGE> 10
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 Certificates, 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 and, upon the
Representative's request, shall file such document and prepare and furnish
without charge to the Underwriters and to any dealer in securities as many
copies as the Representative 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 Underwriters are required to deliver a Prospectus in connection with
sales of any of the Offered Certificates at any time nine months or more
after the Effective Time, upon the request of the Representative 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,
be required by the Securities Act or requested by the Commission.
e. Prior to filing with the Commission any (i) amendment to
the Registration Statement or supplement to the Prospectus, or document
incorporated by reference in the Prospectus, or (ii) Prospectus pursuant
to Rule 424 of the Rules and Regulations, to give at least three business
days prior notification to the Representative and to furnish a copy
thereof to the Representative and counsel for the Underwriters, provided,
however, that if any of the foregoing filings referred to in (i) or (ii)
relate to the Offered Certificates, the Company shall obtain the consent
of the Representative to such filing, which consent shall not be
unreasonably withheld.
f. [Reserved].
g. To use its best efforts, in cooperation with the
Representative, to qualify the Offered Certificates for offering and sale
under the applicable securities laws of such states and other
jurisdictions of the United States as the Representative 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
Certificates. 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 Certificates have been so qualified.
-9-
<PAGE> 11
h. The Company shall not, without the Representative's prior
written consent, which consent shall not be unreasonably withheld,
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 Certificates to
the public.
i. So long as the Offered Certificates shall be outstanding,
to deliver to the Representative 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
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
Certificates in the manner set forth in the Prospectus.
Section 6. Conditions to the Underwriters' Obligations. The
obligations of the Underwriters to purchase the Offered Certificates 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 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 Underwriters 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 Fried, Frank, Harris, Shriver & Jacobson, counsel
for the Underwriters, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
c. All corporate proceedings and other legal matters relating
to the authorization, form and validity of 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 Underwriters, and the Company shall have
furnished to
-10-
<PAGE> 12
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
d. The Representative shall have received the favorable
opinion of Dewey Ballantine 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 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,
-11-
<PAGE> 13
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 Certificates or
the consummation of any other transaction contemplated thereby by
the Company, except such which have been obtained.
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 Certificates (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
Securities 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
-12-
<PAGE> 14
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, as
amended nor the registration of the Trust created by such Pooling
and Servicing Agreement under the Investment Company Act of 1940, as
amended is presently required.
10. The statements in the Prospectus set forth under the
captions "DESCRIPTION OF THE SECURITIES," "THE AGREEMENTS" 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 Certificates
or of the Pooling and Servicing Agreement, are fair and accurate in
all material respects.
11. The statements in the Prospectus and Prospectus
Supplement set forth under the captions "ERISA CONSIDERATIONS,"
"MATERIAL FEDERAL INCOME TAX CONSEQUENCES," and the statements in
the Prospectus set forth under the caption "LEGAL ASPECTS OF
MORTGAGE LOANS," to the extent that they constitute matters of
federal, New York or California law, or federal, New York or
California legal conclusions provide a fair and accurate summary of
such law or conclusions.
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 Certificates and the Class B
Certificates issued pursuant to the Pooling and Servicing Agreement
will be treated as the "regular interests" in a REMIC and the Class
R-I Certificates and the Class R-II Certificates issued pursuant to
the Pooling and Servicing Agreement will be treated as "residual
interests" in a REMIC. 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 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
-13-
<PAGE> 15
therein, in light of the circumstances under which they were made,
not misleading.
15. Such other matters as the Representative 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 shall have received letters, including
bring-down letters, from Arthur Andersen LLP, dated on or before the
Closing Date, in form and substance satisfactory to the Representative and
counsel for the Underwriters, to the effect that they have performed
certain specified procedures requested by the Representative with respect
to the information set forth in the Prospectus and certain matters
relating to the Company.
f. The Offered Certificates 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 and
counsel for the Underwriters shall have received copies of any opinions of
counsel supplied to the rating organizations relating to any matters with
respect to the Offered Certificates. Any such opinions shall be dated the
Closing Date and addressed to the Underwriters or accompanied by reliance
letters to the Underwriters or shall state that the Underwriters may rely
upon them.
g. The Representative 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
-14-
<PAGE> 16
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;
5. there has been no amendment or other document filed
affecting the articles of incorporation or bylaws of the Company
since December 31, 1999, and no such amendment has been authorized.
No event has occurred since March 31, 2000, 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 March 31, 2000;
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
Securities Act; and
8. each person who, as an officer or representative 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,
-15-
<PAGE> 17
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 shall have received a favorable opinion
of counsel to the Trustee, dated the Closing Date and in form and
substance satisfactory to the Representative, 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;
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 Certificates 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
-16-
<PAGE> 18
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 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 of the Trustee, signed or
signs the Offered Certificates, 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, and the signatures of such persons
appearing on such documents are their genuine signatures.
j. The Policy relating to the Offered Certificates shall have
been duly executed and issued at or prior to the Closing Date and shall
conform in all material respects to the description thereof in the
Prospectus.
k. The Representative 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 Underwriters, to the effect
that:
1. The Insurer is a stock insurance company duly
organized and validly existing under the laws of the State of
Wisconsin and duly qualified to conduct an insurance business in the
State of California and the State of New York. The Insurer is
validly licensed and authorized to issue the Policy and perform its
obligations under the Policy in accordance with the terms thereof
under the laws of the State of California, State of New York and the
State of Wisconsin.
2. The Insurer has full corporate power and authority to
execute and deliver the Policy and the Policy has been duly
authorized, executed and delivered by the Insurer and constitutes a
legal, valid and binding obligation of the Insurer enforceable in
accordance with its terms except to the extent that the
enforceability (but not the validity) of such obligation may be
limited by any applicable bankruptcy, insolvency, liquidation,
rehabilitation or other similar law or enactment now or hereafter
enacted affecting the enforcement of creditors' rights and by
general principles of equity.
3. The execution and delivery by the Insurer of the
Policy, the Insurance Agreement and the Indemnification Agreement
will not, and the consummation of the transactions contemplated
thereby and the satisfaction of the terms thereof will not, conflict
with or result in a breach of any of the terms, conditions or
provisions of the Certificate of Incorporation or By-Laws of the
Insurer, or any restriction contained in any contract, agreement or
instrument to which the Insurer is a party or by which it is bound
or constitute a default under any of the foregoing.
-17-
<PAGE> 19
4. Proceedings legally required for the issuance of the
Policy, and the execution, delivery and performance of the Insurance
Agreement and the Indemnification Agreement have been taken by the
Insurer and licenses, orders, consents or other authorizations or
approvals of any governmental boards or bodies legally required for
the enforceability of the Policy have been obtained; any proceedings
not taken and any licenses, authorizations or approvals not obtained
are not material to the enforceability of the Policy, the Insurance
Agreement and the Indemnification Agreement.
5. The Policy is exempt from registration under the
Securities Act.
6. There is no action, suit or proceeding pending
against or affecting the Insurer in any court, or before or by any
governmental body, which is likely to affect or impair the validity
or enforceability of the Policy, the Insurance Agreement or the
Indemnification Agreement.
7. The statements contained in the Prospectus under the
heading "THE CERTIFICATE INSURER" and "THE CERTIFICATE INSURANCE
POLICY", insofar as such statements constitute summaries of the
matters referred to therein, accurately reflect and fairly present
the information purported to be shown and, insofar as such
statements describe the Insurer, fairly and accurately describe the
Insurer, other than any financial or statistical information
contained or incorporated by reference therein, as to which no
opinion is expressed.
8. The Insurer is authorized to deliver the Insurance
Agreement and the Indemnification Agreement, and each of the
Insurance Agreement and the Indemnification Agreement has been duly
executed and is the valid and binding obligation of the Insurer
enforceable in accordance with its terms except to the extent that
the enforceability (but not the validity) of such obligation may be
limited by any applicable bankruptcy, insolvency, liquidation,
rehabilitation or other similar law or enactment now or hereafter
enacted affecting the enforcement of creditors' rights and by
general principles of equity and 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 the securities laws.
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.
The Insurer shall attach to such opinion 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.
-18-
<PAGE> 20
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 Securities 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 Securities Act.
n. Except as disclosed in the Prospectus Supplement, there has
not occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings,
business or operations, since March 31, 2000, of (A) the Company and its
subsidiaries or (B) the Insurer, that is in the Representative's judgment
material and adverse and that makes it in the Representative's judgment
impracticable to market the Offered Certificates on the terms and in the
manner contemplated in the Prospectus.
o. [Reserved].
p. The Representative shall have received from Dewey
Ballantine LLP, special counsel to the Company, a survey in form and
substance satisfactory to the Representative, 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 shall have received from Fried, Frank,
Harris, Shriver & Jacobson, special counsel to the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Offered Certificates, the Prospectus and such other
related matters as the Representative shall reasonably require.
r. The Representative and counsel for the Underwriters 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 Underwriters
or accompanied by reliance letters to the Underwriters or shall state the
Underwriters may rely thereon.
s. The Representative shall have received such further
information, certificates and documents as the Representative may
reasonably have requested not fewer than three (3) full business days
prior to the Closing Date.
-19-
<PAGE> 21
t. There shall have been executed and delivered by Advanta
Mortgage Holding Company, the indirect 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
indirect corporate parent of the Company, a letter agreement with the
Underwriters 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).
v. Prior to the Closing Date, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Certificates as herein contemplated and
related proceedings or in order to evidence the accuracy and completeness
of any of the representations and warranties, or the fulfillment of any of
the conditions, herein contained, and all proceedings taken by the Company
in connection with the issuance and sale of the Offered Certificates as
herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
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,
impractical or inadvisable to proceed with the public offering or delivery
of the Offered Certificates on the terms and in the manner contemplated in
the Prospectus.
x. The Offered Certificates 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 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.
-20-
<PAGE> 22
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 Underwriters.
Section 7. Payment of Expenses. The Company agrees to pay: (1) the
costs incident to the authorization, issuance, sale and delivery of the Offered
Certificates and any taxes payable in connection therewith; (2) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (3) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), the Prospectus and any amendment or supplement to the Prospectus or
any document incorporated by reference therein, all as provided in this
Agreement; (4) the fees and expenses of qualifying the Offered Certificates
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 Underwriters); (5) any fees charged by securities rating services for rating
the Offered Certificates; (6) the costs and expenses of Dewey Ballantine LLP,
counsel to the Company; and (7) 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 Underwriters shall pay (i) their own costs and expenses,
including the costs and expenses of Fried, Frank, Harris, Shriver & Jacobson,
any transfer taxes on the Offered Certificates which they may sell and the
expenses of advertising any offering of the Offered Certificates made by the
Underwriters and (ii) the fees and expenses of Arthur Andersen LLP incurred by
the Company in connection with the offering of the Offered Certificates.
If this Agreement is terminated by the Representative, in accordance
with the provisions of Section 6 or Section 10, the Company shall reimburse the
Underwriters for their respective reasonable out-of-pocket expenses, including
fees and disbursements of Fried, Frank, Harris, Shriver & Jacobson, counsel for
the Underwriters.
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 Certificates), 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
-21-
<PAGE> 23
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 the Collateral Terms Sheet,
Structural Term Sheet, Computational Materials, 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 specifically for inclusion therein; and provided, further,
that as to any Collateral Term Sheet, Structural Term Sheet or Computational
Materials 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 Certificates 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 Collateral Term Sheet, Structural Term Sheet or Computational Materials 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
Underwriters shall be obligated to send or give any supplement or amendment to
any document incorporated therein by reference to any person other than a person
to whom 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
Underwriters or any controlling person of such Underwriter.
b. 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 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
-22-
<PAGE> 24
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which 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 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 Underwriters, if the indemnified
parties under this Section 8 consist of the Underwriters 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.
-23-
<PAGE> 25
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(a) and (b), shall use its best efforts to cooperate with
the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
d. Each Underwriter agrees to deliver to the Company no later than
the date on which 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. Each Underwriter agrees, assuming all Company-Provided
Information (defined below) is accurate and complete in all material respects,
to severally and not jointly 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 Underwriters 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;
-24-
<PAGE> 26
(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 Underwriters 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, Steen & Hamilton on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Kidder letter" and
together with the PSA Letter, the "No-Action Letters") of Brown & Wood on behalf
of Kidder, Peabody & Co., Inc. (which letter, and the SEC staff's response
thereto, were publicly available May 20, 1994).
g. If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or (b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Offered Certificates 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
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations.
The relative benefits of the Underwriters and the 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 Underwriters 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 Underwriters, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission and other equitable
considerations.
-25-
<PAGE> 27
The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(g) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 8(g)
shall be deemed to include, for purposes of this Section 8(g), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
h. For purposes of this Section 8, in no case shall any Underwriter
be responsible for any amount in excess of (x) the amount received by such
Underwriter in connection with its resale of the Offered Certificates over (y)
the amount paid by such Underwriter to the Company for the Offered Certificates
purchased by such Underwriter hereunder. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
g. The Underwriters 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
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
Section 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of the Underwriters or controlling
persons thereof, or by or on behalf of the Company and shall survive delivery of
any Offered Certificates to the Underwriters.
Section 10. Termination of Agreement. The Representative 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 Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Morgan Stanley & Co.
Incorporated, as Representative of the Underwriters, 1585 Broadway, New
York, New York, 10036, Attention: General Counsel (fax: ( 212 )
761-0465);
-26-
<PAGE> 28
b. if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to Advanta Conduit Receivables,
Inc., 10790 Rancho Bernardo Road, San Diego, California 92127,
Attention: General Counsel (Fax: (858) 674-3592).
Section 12. Persons Entitled to the Benefit of this Agreement. This
Agreement shall inure to the benefit of and be binding upon the Underwriters 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 Underwriters 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 Certificates
which it is obligated to purchase hereunder (the "Defaulted Certificates"), the
remaining Underwriters (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
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 Underwriters contained in this
Agreement, or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the 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
-27-
<PAGE> 29
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.
-28-
<PAGE> 30
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
ADVANTA CONDUIT RECEIVABLES, INC.
By: /s/ Michael Coco
----------------------------
Name: Michael Coco
Title: Vice-President
CONFIRMED AND ACCEPTED, as of
the date first above written:
MORGAN STANLEY & CO. INCORPORATED
as Representative of the Underwriters
By: /s/ James P. Fadel
--------------------------------
Name: James P. Fadel
Title: Managing Director
-29-
<PAGE> 31
<TABLE>
<CAPTION>
------------------------------------------------------------------------------------------------------------
SCHEDULE A
------------------------------------------------------------------------------------------------------------
INITIAL
PRINCIPAL
AMOUNT OF
OFFERED
REQUIRED CERTIFICATES
RATINGS PURCHASED BY PRICE TO UNDERWRITING
CLASS S&P/MOODY'S UNDERWRITERS PUBLIC COUPON DISCOUNT
------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Class A-1 AAA /Aaa $107,764,000 100.00000% Floating(1) $ 188,587.00
------------------------------------------------------------------------------------------------------------
Class A-2 AAA /Aaa $57,801,000 99.99445% Fixed $ 130,052.25
------------------------------------------------------------------------------------------------------------
Class A-3 AAA /Aaa $40,179,000 99.99453% Fixed $ 110,492.25
------------------------------------------------------------------------------------------------------------
Class A-4 AAA /Aaa $62,429,000 99.99118% Fixed(2) $ 202,894.25
------------------------------------------------------------------------------------------------------------
Class A-5 AAA /Aaa $24,327,000 99.96684% Fixed(1),(2) $ 91,226.25
------------------------------------------------------------------------------------------------------------
Class A-6 AAA /Aaa $32,500,000 99.95740% Fixed(1),(2) $ 89,375.00
------------------------------------------------------------------------------------------------------------
Adjustment
to
Underwriting
Discount
on Fixed Rate ($127.00)
Certificates
------------------------------------------------------------------------------------------------------------
Class A-7 AAA /Aaa $75,000,000 100.00000% Floating(2),(3) $ 187,500.00
------------------------------------------------------------------------------------------------------------
Total $400,000,000 $1,000,000.00
------------------------------------------------------------------------------------------------------------
</TABLE>
----------
1 Class A-1, Class A-5 and Class A-6 are subject to the Fixed Rate Group
Available Funds Cap Rate as defined in the Prospectus Supplement.
2 Class A-4, Class A-5, Class A-6 and Class A-7 are subject to an increase
in the pass-through rate on the payment date immediately following the
month in which the clean-up call may first be exercised, as defined in the
Prospectus Supplement.
3 Class A-7 is subject to the ARM Group Available Funds Cap Rate as defined
in the Prospectus Supplement.
-1-
<PAGE> 32
SCHEDULE I
<TABLE>
<CAPTION>
<S> <C>
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A-1:
------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $35,921,334
Bear, Stearns & Co. Inc. $35,921,333
Salomon Smith Barney Inc. $35,921,333
TOTAL FOR CLASS A-1 $107,764,000
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A-2:
------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $19,267,000
Bear, Stearns & Co. Inc. $19,267,000
Salomon Smith Barney Inc. $19,267,000
TOTAL FOR CLASS A-2 $57,801,000
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A-3:
------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $13,393,000
Bear, Stearns & Co. Inc. $13,393,000
Salomon Smith Barney Inc. $13,393,000
TOTAL FOR CLASS A-3 $40,179,000
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A-4:
------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $20,809,667
Bear, Stearns & Co. Inc. $20,809,667
Salomon Smith Barney Inc. $20,809,666
TOTAL FOR CLASS A-4 $62,429,000
UNDER WRITER PRINCIPAL AMOUNT OF CLASS A-5:
------------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $8,109,000
Bear, Stearns & Co. Inc. $8,109,000
Salomon Smith Barney Inc. $8,109,000
TOTAL FOR CLASS A-5 $24,327,000
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A-6:
------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $10,833,334
Bear, Stearns & Co. Inc. $10,833,333
Salomon Smith Barney Inc. $10,833,333
TOTAL FOR CLASS A-6 $32,500,000
UNDERWRITER PRINCIPAL AMOUNT OF CLASS A-7:
------------------------ ------------------------------------
Morgan Stanley & Co. Incorporated $37,500,000
Prudential Securities Incorporated $37,500,000
TOTAL FOR CLASS A-7 $75,000,000
</TABLE>
-2-
