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Exhibit 1.1
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ADVANTA MORTGAGE CONDUIT SERVICES, INC.
Mortgage Loan Asset-Backed Certificates,
Series 1999-1
UNDERWRITING AGREEMENT
February 24, 1999
XXXXXXX XXXXX XXXXXX INC.
As Representative of the Underwriters (the "Representative")
named in Schedule I
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Advanta Mortgage Conduit Services, Inc. (the "Company") has
authorized the issuance and sale of Mortgage Loan Asset-Backed Certificates,
Series 1999-1, 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, the Class A-2
Certificates, the Class A-3 Certificates, the Class A-4 Certificates and the
Class A-5 Certificates, the "Class A Fixed Rate Group Certificates"), (vii) the
Class A-7 Certificates (the "Class A-7 Certificates" or the "Class A ARM Group
Certificates", together with the Class A Fixed Rate Group Certificates, the
"Offered Certificates"), (viii) the Class B Certificates, (ix) the residual
class with respect to the Upper-Tier REMIC held by the Trust (the "Class R
Certificates") and (x) the residual class with respect to the Lower-Tier REMIC
held by the Trust (the "Class RL Certificates", together with the Offered
Certificates, the Class B Certificates and the Class R Certificates, the
"Certificates"). Only the Offered Certificates are offered by the Underwriters.
The Offered Certificates will be issued by the Advanta
Mortgage Loan Trust 1999-1 (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 March 9, 1999 (the "Closing Date"),
an aggregate principal balance of approximately $700,000,000 and the Pre-Funding
Account shall have approximately $100,000,000, of which an amount equal to
approximately $50,000,000 may
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be applied to the purchase of additional loans for the Fixed Rate Group and an
amount equal to approximately $50,000,000 may be applied to the purchase of
additional loans for the ARM Group during the period from the Closing Date to on
or before June 9, 1999. The Offered Certificates are to be issued under a
pooling and servicing agreement, to be dated as of March 1, 1999 (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 MBIA
Insurance Corporation (the "Insurer") which will unconditionally and irrevocably
guarantee to the Trustee for the benefit of the holders of the Offered
Certificates the amount by which (i) the Fixed Rate Group Insured Distribution
Amount (as defined in the Pooling and Servicing Agreement), as applicable, for
the Class A Fixed Rate Group Certificates 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 Class A ARM Group Certificates exceeds the
ARM Group Total Available Funds (as defined in the Pooling and Servicing
Agreement).
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
Master Loan Transfer Agreement dated on or about March 9, 1999 among the
Trustee, Advanta Mortgage Conduit Services, Inc. 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 March 1, 1999 among the
Underwriters, the Company and the Insurer.
Section 1. Representations and Warranties of the Company
The Company represents and warrants to, and agrees with the
Underwriters 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 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
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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 Certificates 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; "Registration Statement"
means such registration statements, 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 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 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 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
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
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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 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 Agreement, dated as of March 1, 1999, 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 Certificates to be issued.
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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 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 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 Xxxxxxxx LLP are independent public
accountants with respect to the Company as required by the Securities
Act and the Rules and Regulations.
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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.
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: (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 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 March 1, 1999
(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
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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 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 Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon
by the Representative and
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the Company at 10:00 A.M. New York City time on March 9, 1999 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 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 Preliminary Prospectus
Supplement and the Prospectus Supplement in a form approved by the
Representative 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 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, 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 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
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 any
Preliminary Prospectus or 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 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.
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b. To furnish promptly 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 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 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)
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 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), (ii), or (iii)
relate to the Offered Certificates, the Company shall obtain the
consent of the Representative to such filing, which consent shall not
be unreasonably withheld.
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f. To make generally available to holders of the
Offered Certificates 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, 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.
h. Not, without the Representative'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 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
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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, Xxxxxxx & Xxxxxxxx,
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 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 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 Delaware, 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
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13
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 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.
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14
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 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 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," "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 Certificates and the Class B Certificates issued
pursuant to the Pooling and Servicing Agreement will be
treated
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15
as the "regular interests" in a REMIC and the Class R
Certificates and the Class RL 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 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
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 Xxxxxx Xxxxxxxx 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:
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16
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;
5. there has been no amendment or other
document filed affecting the articles of incorporation or
bylaws of the Company since December 31, 1998, and no such
amendment has been authorized. No event has occurred since
December 31, 1998, which has affected the good standing of the
Company under the laws of the State of Delaware;
6. there has not occurred any material
adverse change or, except as set forth in the Prospectus, any
development involving a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from December 31, 1998;
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
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17
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 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, 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;
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18
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 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
corporation, duly incorporated and validly existing under the
laws of 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.
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
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19
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 Restated Charter or By-Laws of the Insurer.
The execution, delivery and performance by the Insurer of its
obligations under the policy do not, to the extent that either
of the following would effect the validity or enforceability
of the Policy, (a) contravene any law or government regulation
or order presently binding on the Insurer or (b) contravene
any provision of or constitute a default under any indenture,
contract or other instrument to which the Insurer is a party
or by which the Insurer is bound.
6. The Policy is not required to be
registered under the 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.
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20
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
December 31, 1998, 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. The Representative 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 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
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21
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 December 31, 1998;
4. The consolidated financial statements of
the Insurer as of December 31, 1997 and December 31, 1996 and
for each of the three years ended December 31, 1997
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 September 30, 1998 and for the periods ending
September 30, 1998 and September 30, 1997 include in the
Quarterly Report on Form 10-Q of the Insurer for the period
ending September 30, 1998 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 September 30, 1998
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
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.
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p. The Representative shall have received from Xxxxx
Xxxxxxxxxx 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, Xxxxxxx & Xxxxxxxx, 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.
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
Underwriters 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
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
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23
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.
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: (a) the costs incident to the
authorization, issuance, sale and delivery of the Offered Certificates 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 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); (e) any fees charged by securities rating services for rating
the Offered Certificates; (f) the costs and 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 Underwriters shall pay their own costs and expenses,
including the costs and expenses of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx,
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.
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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, Xxxxxxx &
Xxxxxxxx, 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 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 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
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 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 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.
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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 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
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26
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.
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 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. 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
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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;
(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, 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 & Wood on behalf of Xxxxxx, Xxxxxxx & 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
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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.
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
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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 Xxxxxxx Xxxxx Barney Inc.,
as Representative of the Underwriters, 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, 00000, Attention: General Counsel (fax: (000) 000-0000);
b. if to the Company, shall be delivered or sent by
mail, telex or facsimile transmission to Advanta Mortgage Conduit
Services, 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 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-
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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 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
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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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32
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 MORTGAGE CONDUIT
SERVICES INC.
By: /s/ Xxxxxxx Xxxx
-------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
CONFIRMED AND ACCEPTED, as of
the date first above written:
XXXXXXX XXXXX BARNEY INC.
as Representative of the Underwriters
By: /s/ Xxxx Xxxxxxxx
------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
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33
SCHEDULE A
------------------------------------------------------------------------------------------------------------------
INITIAL PRINCIPAL PURCHASE PRICE TO
AMOUNT OF OFFERED UNDERWRITERS
REQUIRED RATINGS CERTIFICATES DISREGARDING
CLASS S&P/XXXXX'X PURCHASED BY COUPON ACCRUED INTEREST
UNDERWRITERS
------------------------------------------------------------------------------------------------------------------
Class A-1 AAA /Aaa $ 125,000,000 Fixed 99.8481885%(1)
------------------------------------------------------------------------------------------------------------------
Class A-2 AAA /Aaa $ 82,000,000 Fixed 99.7880765%(1)
------------------------------------------------------------------------------------------------------------------
Class A-3 AAA /Aaa $ 44,000,000 Fixed 99.7477353%(1)
------------------------------------------------------------------------------------------------------------------
Class A-4 AAA /Aaa $ 83,000,000 Fixed 99.6661549%(1)
------------------------------------------------------------------------------------------------------------------
Class A-5 AAA /Aaa $ 26,000,000 Fixed(2) 99.6331524%(1)
------------------------------------------------------------------------------------------------------------------
Class A-6 AAA /Aaa $ 40,000,000 Fixed 99.7119279%(1)
------------------------------------------------------------------------------------------------------------------
Class A-7 AAA /Aaa $ 400,000,000 Floating(3) 99.7750000%
------------------------------------------------------------------------------------------------------------------
--------
(1) Such amount does not include the accrued interest from March 1, 1999.
(2) Class A-5 is subject to the Fixed Rate Group Available Funds Cap Rate
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.
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34
SCHEDULE I
Xxxxxxx Xxxxx Barney Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Brothers
Xxxxxx Xxxxxxx & Co. Incorporated
Prudential Securities Incorporated
-2-
