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Exhibit 10.1
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AMBAC ASSURANCE CORPORATION,
XXXXXX XXXXXXX & CO. INCORPORATED,
XXXXXXX XXXXX BARNEY INC.,
BEAR, XXXXXXX & CO. INC.
and
PRUDENTIAL SECURITIES INCORPORATED
INDEMNIFICATION AGREEMENT
ADVANTA MORTGAGE LOAN TRUST 2000-1
Dated as of May 19, 2000
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TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only
and shall not be deemed to be part of this Indemnity Agreement. All capitalized
terms used in this Indemnity Agreement and not otherwise defined shall have the
meanings set forth in Article I of this Indemnity Agreement.)
Page
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Section 1. Representations and Warranties of the Company.................................................. 8
Section 2. Purchase and Sale.............................................................................. 13
Section 3. Delivery and Payment........................................................................... 13
Section 4. Offering by the Underwriters................................................................... 13
Section 5. Covenants of the Company....................................................................... 13
Section 6. Conditions to the Underwriters' Obligations.................................................... 16
Section 7. Payment of Expenses............................................................................ 26
Section 8. Indemnification and Contribution............................................................... 26
Section 9. Representations, Warranties and Agreements to Survive Delivery................................. 31
Section 10. Termination of Agreement....................................................................... 31
Section 11. Notices........................................................................................ 31
Section 12. Persons Entitled to the Benefit of this Agreement.............................................. 32
Section 13. Default by One of the Underwriters............................................................. 32
Section 14. Survival....................................................................................... 32
Section 15. Definition of the Term "Business Day".......................................................... 33
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Section 16. GOVERNING LAW.................................................................................. 33
Section 17. Counterparts................................................................................... 33
Section 18. Headings....................................................................................... 33
Section 19. Representations of Underwriters................................................................ 33
DEFINITIONS; RULES OF CONSTRUCTION............................................................................... 1
ESTABLISHMENT AND ORGANIZATION OF THE TRUST...................................................................... 37
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SPONSOR AND THE MASTER SERVICER; ............................... 42
COVENANT OF SPONSOR TO CONVEY MORTGAGE LOANS
ISSUANCE AND SALE OF CERTIFICATES................................................................................ 60
CERTIFICATES AND TRANSFER OF INTERESTS........................................................................... 61
COVENANTS........................................................................................................ 66
ACCOUNTS, DISBURSEMENTS AND RELEASES............................................................................. 71
SERVICING AND ADMINISTRATION OF MORTGAGE LOANS................................................................... 85
TERMINATION OF TRUST............................................................................................. 104
THE TRUSTEE...................................................................................................... 108
MISCELLANEOUS.................................................................................................... 117
Defined Terms.................................................................................................... 5
Other Definitional Provisions.................................................................................... 5
Representations and Warranties of the Underwriters............................................................... 6
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Representations and Warranties of the Certificate Insurer........................................................ 6
Indemnification.................................................................................................. 7
Amendments, Etc.................................................................................................. 9
Notices ......................................................................................................... 9
Severability..................................................................................................... 10
Governing Law.................................................................................................... 10
Counterparts..................................................................................................... 10
Headings ........................................................................................................ 10
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INDEMNIFICATION AGREEMENT dated as of May 19, 2000 (the
"Indemnity Agreement"), by and among AMBAC ASSURANCE CORPORATION, as Certificate
Insurer, and XXXXXX XXXXXXX & CO. INCORPORATED, XXXXXXX XXXXX BARNEY INC., BEAR,
XXXXXXX & CO, INC. and PRUDENTIAL SECURITIES INCORPORATED (the "Underwriters").
Defined Terms. Unless the context clearly requires otherwise,
all capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Pooling and Servicing Agreement, the Insurance
Agreement or the Policy. For purposes of this Indemnity Agreement, the following
terms shall have the following meanings:
"Certificate Insurer" means Ambac Assurance Corporation, or
any successor thereto, as issuer of the Policy.
"Certificate Insurer Information" has the meaning given such
term in Section 4.
"Insurance Agreement" means the Insurance and Indemnity
Agreement (as may be amended, modified or supplemented from time to time) dated
as of May 25, 2000 by and among the Certificate Insurer, Advanta Conduit
Receivables, Inc., as Sponsor, Advanta Mortgage Corp. USA, as Master Servicer,
and Bankers Trust Company of California, N.A., as Trustee.
"Offering Document" means the Prospectus Supplement, dated May
19, 2000, in respect of the Certificates, and any amendment or supplement
thereto, and any other offering document in respect of the Certificates that
makes reference to the Policy.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement, dated as of May 1, 2000, relating to the Advanta Mortgage
Loan Trust 2000-1, Mortgage Loan Asset-Backed Certificates, Series 2000-1, by
and among the Sponsor, the Master Servicer and the Trustee (as may be amended,
modified or supplemented from time to time as set forth therein).
"Securities Act" means the Securities Act of 1933, including,
unless the context otherwise requires, the rules and regulations thereunder, as
amended from time to time.
"Securities Exchange Act" means the Securities Exchange Act of
1934, including, unless the context otherwise requires, the rules and
regulations thereunder, as amended from time to time.
"Underwriters" means Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx Xxxxx Barney Inc., Bear, Xxxxxxx & Co. Inc. and Prudential Securities
Incorporated, severally.
"Underwriters Information" has the meaning given such term in
Section 3.
Other Definitional Provisions. The words "hereof," "herein"
and "hereunder" and words of similar import when used in this Indemnity
Agreement shall refer to this Indemnity Agreement as a whole and not to any
particular provision of this Indemnity Agreement, and Section, subsection,
Schedule and Exhibit references are to this Indemnity Agreement unless otherwise
specified. The meanings given to terms defined herein shall be equally
applicable to
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both the singular and plural forms of such terms. The words "include" and
"including" shall be deemed to be followed by the phrase "without limitation."
Representations and Warranties of the Underwriters. Each
Underwriter severally represents and warrants as of the Closing Date as follows:
SECTION 1.131 Compliance With Laws. Such Underwriter will comply in all
material respects with all legal requirements in connection with offers and
sales of the Certificates and will make such offers and sales in the manner to
be provided in the Offering Document.
SECTION 1.132 Offering Document. Such Underwriter will not use, or distribute to
other broker-dealers for use, any Offering Document in connection with the offer
and sale of the Certificates unless such Offering Document includes such
information relating to the Certificate Insurer as has been furnished by the
Certificate Insurer for inclusion therein and has been approved by the
Certificate Insurer.
SECTION 1.136 Underwriters Information. All material provided by the
Underwriters for inclusion in the Offering Document (as revised from time to
time), shall be true and correct in all material respects, it being understood
and agreed that the only such information furnished by the Underwriters consists
of the following information (collectively, the "Underwriters Information"): the
information regarding the Underwriters contained under the heading
"Underwriting" in the Offering Document.
Representations and Warranties of the Certificate Insurer. The
Certificate Insurer represents and warrants to each Underwriter as follows:
SECTION 1.134 Organization and Licensing. The Certificate Insurer is a duly
organized and licensed and validly existing Wisconsin stock insurance company
duly qualified to conduct an insurance business in the States of New York and
California.
SECTION 1.135 Corporate Power. The Certificate Insurer has the corporate power
and authority to issue the Policy and execute this Indemnity Agreement and to
perform all of its obligations hereunder and thereunder.
SECTION 1.136 Authorization; Approvals. Proceedings legally required for the
issuance of the Policy and the execution, delivery and performance of this
Indemnity Agreement have been taken and all material licenses, orders, consents
or other authorizations or approvals of any governmental boards or bodies
legally required for the enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or approvals not obtained
are not material to the enforceability of the Policy.
SECTION 1.137 Enforceability. The Policy, when issued, and this Indemnity
Agreement will each constitute a legal, valid and binding obligation of the
Certificate Insurer, enforceable in accordance with its terms, subject to
insolvency, reorganization, moratorium, receivership and other similar laws
affecting creditors' rights generally and by general principles of equity and
subject to principles of public policy limiting the right to enforce the
indemnification provisions contained therein and herein, insofar as such
provisions relate to indemnification for liabilities arising under federal
securities laws.
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SECTION 1.138 Financial Information. The consolidated financial statements of
the Certificate Insurer and subsidiaries as of December 31, 1999 and December
31, 1998, and for each of the years in the three-year period ended December 31,
1999, prepared in accordance with generally accepted accounting principles,
included in the Annual Report on Form 10-K of Ambac Financial Group, Inc. (which
was filed with the Commission on March 31, 2000; Commission File Number 1-10777)
and the unaudited consolidated financial statements of the Certificate Insurer
and subsidiaries as of March 31, 2000 and for the periods ending March 31, 2000
and March 31, 1999 included in the Quarterly Report on Form 10-Q of Ambac
Financial Group, Inc. for the period ended March 31, 2000 (which was filed with
the Commission on May 12, 2000), which are incorporated by reference in the
Offering Document, fairly present in all material respects the financial
condition of the Certificate Insurer as of such dates and for the periods
covered by such statements in accordance with generally accepted accounting
principles consistently applied. Since March 31, 2000, there has been no
material change in such financial condition of the Certificate Insurer that
would materially and adversely affect its ability to perform its obligations
under the Policy.
SECTION 1.139 Certificate Insurer Information. The information in the Offering
Document as of the date hereof under the captions "The Certificate Insurer" and
"The Certificate Insurance Policy" (together, the "Certificate Insurer
Information") is true and correct in all material respects and does not contain
any untrue statement of a material fact.
SECTION 1.140 Rating. The Certificate Insurer is not aware of any facts that if
disclosed to Xxxxx'x or S&P would be reasonably expected to result in a
downgrade of the rating of the financial strength of the Certificate Insurer by
either of such Rating Agencies.
SECTION 1.141 No Litigation. There are no actions, suits, proceedings or
investigations pending or, to the best of the Certificate Insurer's knowledge,
threatened against it at law or in equity or before or by any court,
governmental agency, board or commission or any arbitrator which, if decided
adversely, would result in a Material Adverse Change or would materially and
adversely affect its ability to perform its obligations under the Policy or this
Indemnification Agreement.
SECTION 1.142 Securities Act Registration. The Policy is exempt from
registration under the Securities Act.
Indemnification.
SECTION 1.143 The Underwriters hereby severally agree to pay, and to protect,
indemnify and save harmless, the Certificate Insurer and its officers,
directors, shareholders, employees, agents and each Person, if any, who controls
the Certificate Insurer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act from and against,
any and all claims, losses, liabilities (including penalties), actions, suits,
judgments, demands, damages, costs or expenses (including reasonable fees and
expenses of attorneys, consultants and auditors and reasonable costs of
investigations) of any nature arising out of or by reason of any untrue
statement of a material fact or an omission to state a material fact necessary
in order to make the statements therein in light of the circumstances in which
they were made not misleading, contained in the Underwriters Information or a
breach of any of the representations and warranties of the Underwriters
contained in Section 3.
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SECTION 1.144 The Certificate Insurer agrees to pay, and to protect, indemnify
and save harmless, each Underwriters and their respective officers, directors,
shareholders, employees, agents and each Person, if any, who controls such
Underwriters within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act from and against, any and all claims,
losses, liabilities (including penalties), actions, suits, judgments, demands,
damages, costs or expenses (including reasonable fees and expenses of attorneys,
consultants and auditors and reasonable costs of investigations) of any nature
arising out of or by reason of any untrue statement of a material fact or an
omission to state a material fact necessary in order to make the statements
therein in light of the circumstances in which they were made not misleading,
contained in the Certificate Insurer Information or a breach of any of the
representations and warranties of the Certificate Insurer contained in Section
4.
SECTION 1.145 If any action or proceeding (including any governmental
investigation) shall be brought or asserted against any Person (individually, an
"Indemnified Party" and, collectively, the "Indemnified Parties") in respect of
which the indemnity provided in this Section 5(a) or (b) may be sought from any
of the Underwriters, on the one hand, or the Certificate Insurer, on the other
(each, an "Indemnifying Party") hereunder, each such Indemnified Party shall
promptly notify the Indemnifying Party in writing, and the Indemnifying Party
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all expenses. The
Indemnified Party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof at the expense of the
Indemnified Party; provided, however, that the fees and expenses of such
separate counsel shall be at the expense of the Indemnifying Party if (i) the
Indemnifying Party has agreed to pay such fees and expenses, (ii) the
Indemnifying Party shall have failed to assume the defense of such action or
proceeding and employ counsel reasonably satisfactory to the Indemnified Party
in any such action or proceeding or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been
advised by 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 (in which case, if the 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 or proceeding on behalf of such Indemnified Party, it
being understood, however, that the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings 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 at any time for the
Indemnified Parties, which firm shall be designated in writing by the
Indemnified Party). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written consent
to the extent that any such settlement shall be prejudicial to the Indemnifying
Party, but, if settled with its written consent, or if there is a final judgment
for the plaintiff in any such action or proceeding with respect to which the
Indemnifying Party shall have received notice in accordance with this subsection
(c), the Indemnifying Party agrees to indemnify and hold the Indemnified Parties
harmless from and against any loss or liability by reason of such settlement or
judgment.
SECTION 1.146 To provide for just and equitable contribution if the
indemnification provided by the Indemnifying Party is determined to be
unavailable or insufficient to hold harmless any Indemnified Party (other than
due to application of this Section), each Indemnifying Party shall contribute to
the losses incurred by the Indemnified
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Party on the basis of the relative fault of the Indemnifying Party, on the one
hand, and the Indemnified Party, on the other hand provided, that no Underwriter
shall be liable for any amount in excess of (i) the excess of the sales prices
of the Certificates purchased by such Underwriter to the public over the prices
paid therefor by such Underwriter over (ii) the aggregate amount of any damages
which the related Underwriter has otherwise been required to pay in respect of
the same or any substantially similar claim.
The relative fault of each Indemnifying Party, on the one
hand, and each Indemnified Party, on the other, shall be determined by reference
to, among other things, whether the breach of, or alleged breach of, any of its
representations and warranties set forth within the control of, the Indemnifying
Party or the Indemnified Party, and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such breach.
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.
Amendments, Etc. This Indemnity Agreement may be amended,
modified, supplemented or terminated only by written instrument or written
instruments signed by the parties hereto.
Notices. All demands, notices and other communications to be
given hereunder shall be in writing (except as otherwise specifically provided
herein) and shall be mailed by registered mail or personally delivered and
telecopied to the recipient as follows:
SECTION 1.147 To the Certificate Insurer:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Department--MBS
Telecopy No.: 000-000-0000
Confirmation: 212-668-0340
SECTION 1.148 To the representative of the Underwriters:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Group
Telecopy No.: 000-000-0000
Confirmation: 000-000-0000
A party may specify an additional or different address or
addresses by writing mailed or delivered to the other parties as aforesaid. All
such notices and other communications shall be effective upon receipt.
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Severability. In the event that any provision of this
Indemnity Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, the parties hereto agree that such holding shall not
invalidate or render unenforceable any other provision hereof. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by any party hereto is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other remedy
available to it.
Governing Law. This Indemnity Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
Counterparts. The Indemnity Agreement may be executed in
counterparts by the parties hereto, and all such counterparts shall constitute
one and the same instrument.
Headings The headings of Sections and the Table of Contents
contained in this Indemnity Agreement are provided for convenience only. They
form no part of this Indemnity Agreement and shall not affect its construction
or interpretation.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Indemnification Agreement, all as of the day and year first above mentioned.
AMBAC ASSURANCE CORPORATION
as Certificate Insurer
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: First Vice President
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Managing Director
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Authorized Signatory
--------------------------------------------------
Name: Authorized Signatory
Title: Vice President
