EXHIBIT 28.1
INDEMNIFICATION AGREEMENT
This Agreement, dated as of September 1, 1996, is by and among
Financial Guaranty Insurance Company (the "Insurer"), as the Insurer under the
certificate guaranty surety bonds (the "Policy") to be issued in connection with
the Certificates described below, ADVANTA Mortgage Conduit Services, Inc. (the
"Issuer") and Xxxxxx Xxxxxxx & Co. Incorporated, as Representative (the
"Representative") of itself, Bear, Xxxxxxx & Co. Inc., Xxxxxx Brothers Inc. and
Prudential Securities Incorporated (collectively, the "Underwriters").
1. Definitions. As used in this Agreement, the following terms shall
have the respective meanings stated below:
"Act" means the Securities Act of 1933, as amended, together with
all related rules and regulations.
"Agreement" means this Indemnification Agreement by and among the
Insurer, the Issuer and the Underwriters.
"Certificates" means ADVANTA Mortgage Loan Asset-Backed
Certificates, Series 1996-3, Class A-1 and Class A-2 issued pursuant to a
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement")
dated as of September 1, 1996 among the Issuer, as Sponsor, ADVANTA
Mortgage Corp. USA, as Servicer and Bankers Trust Company of California,
N.A., as Trustee.
"Class A Certificates" means the ADVANTA Mortgage Loan Asset-Backed
Certificates, Series 1996-3, Class A-1 and Class A-2 issued pursuant to
the Pooling and Servicing Agreement.
"Indemnified Party" means any party entitled to any indemnification
pursuant to Section 5 below, as the context requires.
"Indemnifying Party" means any party required to provide
indemnification pursuant to Section 5 below, as the context requires.
"Insurer Party" means the Insurer and its respective parents,
subsidiaries and affiliates, and any shareholder, director, officer,
employee, agent or any "controlling person" (as such term is used in the
Act) of any of the foregoing.
"Issuer Party" means the Issuer, each of its parents, subsidiaries
and affiliates, and any shareholder, director, officer, employee, agent or
any "controlling person" (as such term is used in the Act) of any of the
foregoing.
"Losses" means (i) any actual out-of-pocket loss paid by the party
entitled to indemnification or contribution hereunder, and (ii) any actual
out-of-pocket costs and expenses paid by such party, including reasonable
fees and expenses of its counsel, to the extent not paid, satisfied or
reimbursed from funds provided by any other Person (provided that the
foregoing shall not create or imply any obligation to pursue recourse
against any such other Person).
"Person" means any individual, partnership, joint venture,
corporation, trust or unincorporated organization or any government or
agency or political subdivision thereof.
"Prospectus" means the form of final Prospectus, dated September 6,
1996 as supplemented by the Prospectus Supplement included in the
Registration Statement on each date that the Registration Statement and
any post-effective amendment or amendments thereto became effective.
"Prospectus Supplement" means the form of final Prospectus
Supplement, dated September 11, 1996 relating to the offer and sale of the
Class A-1 and Class A-2 Certificates.
"Registration Statement" means the registration statement on Form
S-3 of the Issuer (Registration No. 33-99510) relating to the Certificates
in the form in which it has become effective.
"State Securities Law" means any state, local or foreign statute,
and any rule or regulation thereunder, regulating (i) transactions and
dealings in securities, (ii) any person or entity engaging in such
transactions or advising with respect to securities or (iii) investment
companies.
"Underwriting Agreement" means the Underwriting Agreement by and
between the Issuer and the Representative, dated September 11, 1996.
"Underwriter Party" means the Underwriter and its parents,
subsidiaries and affiliates and any shareholder, director, officer,
employee, agent or "controlling person" (as such term is used in the Act)
of any of the foregoing.
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2. Representations and Warranties of the Insurer. The Insurer
represents and warrants to the Underwriter and the Issuer as follows:
(a) Organization and Licensing. The Insurer is a duly incorporated
and existing New York stock insurance company licensed to do business in
the State of New York.
(b) Corporate Power. The Insurer has the corporate power and
authority to issue the Policy and execute and deliver this Agreement and
to perform all of its obligations hereunder and thereunder.
(c) Authorization; Approvals. The issuance of the Policy and the
execution, delivery and performance of this 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 and this Agreement to
constitute the legal, valid and binding obligations of the Insurer.
(d) No Conflicts. The execution and delivery of this Agreement and
consummation of the transactions contemplated hereunder will not result in
the breach of any terms or provisions of the certificate of incorporation
or by-laws of Insurer, or result in the breach of a term or provision of,
or conflict with or constitute a default under or result in the
acceleration of any obligation under, any material agreement or other
material instrument to which the Insurer or its property is subject, or
result in the violation of any law, rule, regulation, order, judgment or
decree to which the Insurer or any of its property is subject or result in
the creation of any lien on any of Insurer's assets or property (other
than pursuant to this Agreement).
(e) Enforceability. The Policy, when issued, and this Agreement,
will each constitute a legal, valid and binding obligation of the Insurer,
enforceable in accordance with its terms subject to applicable laws
affecting the enforceability of creditors' rights generally and general
principles of equity.
(f) Financial Information. The balance sheet of the Insurer as of
December 31, 1995 and the related statements of income, stockholders'
equity and cash flows for the fiscal year then ended, and the accompanying
footnotes, together with an opinion thereon dated January 20, 1995 of KPMG
Peat Marwick and an opinion dated January 21, 1993 of Ernst & Young,
independent certified public accountants, a copy of which is attached as
Appendix A to the Prospectus (the "Insurer 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
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consistently applied, and, since December 31, 1995, 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. The balance sheet of the Insurer as of June 30, 1996 and
the related statements of income, stockholders' equity and cash flows for
the period then ended, a copy of which is attached as Appendix B to the
Prospectus Supplement (the "Insurer Unaudited 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, and, since June 30, 1996, 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.
(g) Insurer Information. The information in the Prospectus as of the
date hereof under the captions "The Certificate Insurer" and "The
Certificate Insurance Policy" (collectively, the "Insurer Information") is
true and correct in all material respects and does not contain any untrue
statement of a fact that is material to the Insurer's ability to perform
its obligations under the Policy.
(h) Limitations. Nothing in this Agreement shall be construed as a
representation or undertaking by the Insurer concerning maintenance of the
rating currently assigned to its claims-paying ability by Xxxxx'x
Investors Service, Inc. ("Moody's"), Standard & Poor's Group, a division
of The McGraw Hill Companies ("Standard & Poor's"), or any other rating
agency (collectively, the "Rating Agencies"). The Rating Agencies, in
assigning such rating, may take into account facts and assumptions not
described in the Prospectus, and the facts and assumptions which are
considered by the Rating Agencies are subject to change over time. The
Insurer has not attempted to disclose all facts and assumptions which the
Rating Agencies deem relevant in assigning a rating within a particular
rating category to the Insurer's claims-paying ability. Notwithstanding
the foregoing, the Insurer is not aware of any facts that, if disclosed to
Moody's, or Standard & Poor's, would be reasonably expected to result in a
downgrade of the rating of the claims-paying ability of the Insurer by
either of such Rating Agencies.
(i) No Litigation. There are no actions, suits, proceedings or
investigations pending, or to the best of the 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 materially and adversely affect its condition
(financial or otherwise) or operations of it or would materially and
adversely affect its ability to perform its obligations under this
Agreement or the Policy.
(j) 1933 Act Registration. The Policy is exempt from registration
under the Act.
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3. Agreements, Representations and Warranties of the Underwriters.
The Underwriters represent and warrant to and agree with the Issuer and the
Insurer that the statements contained in the Prospectus under the caption
"Underwriting" (referred to herein as the "Underwriters Information") are true
and correct in all material respects.
4. Agreements, Representations and Warranties of the Issuer. The
Issuer represents and warrants to and agrees with the Insurer and the
Underwriters as follows:
(a) Registration Statement. The information in the Registration
Statement, other than the Insurer Information, is true and correct in all
material respects and does not contain any untrue statement of a fact that
is material or omit to state a fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(b) Organization. The Issuer is duly incorporated and existing under
the laws of the State of Delaware and is in good standing as a foreign
corporation in each jurisdiction in which the nature of its business, or
the properties owned or leased by it make such qualification necessary.
(c) Corporate Power. The Issuer has the corporate power and
authority to execute and deliver this Agreement, the Underwriting
Agreement, the Pooling and Servicing Agreement and to perform all of its
obligations hereunder and thereunder.
(d) Authorization; Approvals. The execution, delivery and
performance of this Agreement, the Underwriting Agreement and the Pooling
and Servicing Agreement by the Issuer 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 Issuer's board of directors or stockholders, are
necessary for this Agreement, the Underwriting Agreement and the Pooling
and Servicing Agreement to constitute the legal, valid and binding
obligations of the Issuer.
(e) No Conflicts. The execution and delivery of this Agreement and
consummation of the transactions contemplated hereunder will not result in
the breach of any terms or provisions of the certificate of incorporation
or by-laws of Issuer or result in the breach of a term or provision of, or
conflict with or constitute a default under or result in the acceleration
of any obligation under, any material agreement or other material
instrument to which the Issuer or its property is subject, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Issuer or any of its property is subject or result in the
creation of any lien on any of Issuer's assets or property (other than
pursuant to this Agreement).
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(f) Enforceability. This Agreement, the Pooling and Servicing
Agreement and the Underwriting Agreement, will each constitute a legal,
valid and binding obligation of the Issuer, enforceable in accordance with
its terms subject, as to the enforcement of remedies, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
the enforceability of creditors' rights generally applicable in the event
of the bankruptcy, insolvency or reorganization of the Issuer and to
general principles of equity.
(g) No Litigation. There are no actions, suits, proceedings or
investigations pending, or to the best of the Issuer's knowledge,
threatened against it at law or in equity or before any court,
governmental agency, board or commission or any arbitrator which, if
decided adversely, would materially and adversely affect its condition
(financial or otherwise) or operations of it or would materially and
adversely affect its ability to perform its obligations under this
Agreement, the Underwriting Agreement or the Pooling and Servicing
Agreement.
5. Indemnification.
(a) The Insurer hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
Issuer Party and each Underwriter Party against any and all Losses
incurred by them with respect to the offer and sale of the Certificates
and resulting from the Insurer's breach of any of its representations and
warranties set forth in Section 2 of this Agreement.
(b) The Underwriters hereby severally, and not jointly agree, upon
the terms and subject to the conditions of this Agreement, to indemnify,
defend and hold harmless each Insurer Party against any and all Losses
incurred by them which arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact in the
Underwriters Information or (ii) the omission or alleged omission to state
in the Underwriters Information 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.
(c) The Issuer hereby agrees, upon the terms and subject to the
conditions of this Agreement, to indemnify, defend and hold harmless each
Insurer Party against any and all losses incurred by them with respect to
the offer and sale of the Certificates and resulting from the Issuer's
breach of any of its representations and warranties set forth in Section 4
of this Agreement.
(d) Upon the incurrence of any Losses entitled to indemnification
hereunder, the Indemnifying Party shall reimburse the Indemnified Party
promptly upon establishment by the Indemnified Party to the Indemnifying
Party of the Losses incurred.
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6. Insurer Undertaking. The Insurer hereby agrees that, for so long
as the Underwriters are required under the Act to deliver a Prospectus in
connection with the sale of the Class A Certificates, the Insurer will furnish
to either the Representative or the Issuer, or both, upon written request of
such party or parties and at the expense of the Underwriters or the Issuer, as
the case may be, copies of the Insurer's most recent financial statements
(annual or interim, as the case may be) prepared in accordance with generally
accepted accounting principles (subject, as to interim statements, to normal
year-end adjustments and to the absence of footnotes) within a reasonable time
after they are available.
7. Notice to be Given to the Insurer. Except as provided in Section
10 below with respect to contribution, the indemnification provided herein by
the Insurer shall be the exclusive remedy of the Underwriter Party or Issuer
Party for the Losses resulting from the Insurer's breach of a representation,
warranty or agreement hereunder; provided, however, that the Underwriter Party
or Issuer Party shall be entitled to pursue any other remedy at law or in equity
for any such breach so long as the damages sought to be recovered shall not
exceed the Losses incurred thereby resulting from such breach. In the event that
any action or regulatory proceeding shall be commenced or claim asserted which
may entitle the Underwriter Party or Issuer Party to be indemnified under this
Agreement, such party shall give the Insurer written or telegraphic notice of
such action or claim reasonably promptly after receipt of written notice
thereof. The Insurer shall be entitled to participate in the defense of any such
action or claim in reasonable cooperation with, and with the reasonable
cooperation of, the Issuer Party or Underwriter Party, as the case may be. The
Indemnified Party will have the right to employ its own counsel in any such
action in addition to counsel for the Insurer, but the fees and expenses of such
counsel will be at the expense of such Indemnified Party unless (1) the
employment of counsel by the Indemnified Party at its expense has been
authorized in writing by the Insurer, or (2) the Insurer has not in fact
employed counsel to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, or (3) the named
parties to any such action include the Insurer on the one hand, and, on the
other hand, the Indemnified Party, and such 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 Insurer (in
which case, if such Indemnified Party notifies the Insurer in writing that it
elects to employ separate counsel at the expense of the Insurer, the Insurer
shall not have the right to assume the defense of such action or proceeding on
such Indemnified Party's behalf), in each of which cases the reasonable fees and
expenses of counsel (including local counsel) will be at the expense of the
Insurer and all such fees and expenses will be reimbursed promptly as they are
incurred but, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, the Insurer shall not be liable for the
fees and expenses of more than one counsel for all Issuer Parties and more than
one counsel for all Underwriter Parties. The Underwriter Parties and Issuer
Parties shall cooperate with the Insurer Parties in resolving any event which
would give rise to an indemnity obligation pursuant to Section 5(a) hereof in
the most efficient manner. No settlement
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of any such claim or action shall be entered into without the consent of the
Issuer Party or Underwriter Party, as the case may be, who is subject to such
claim or action, on the one hand and the Insurer Party who is subject to such
claim or action on the other hand; provided, however, that the consent of such
Issuer Party or such Underwriter Party, as applicable, shall not be required if
such settlement fully discharges, with prejudice against the plaintiff, the
claim or action against such Issuer Party or Underwriter Party. Any failure by
an Issuer Party or Underwriter Party, as the case may be, to comply with the
provisions of this Section shall relieve the Insurer of liability only if such
failure is materially prejudicial to any legal pleadings, grounds, defenses or
remedies in respect thereof or the Insurer's financial liability hereunder and
then only to the extent of such prejudice.
8. Notice to be Given to the Representative. Except as provided
below in Section 10 with respect to contribution, the indemnification provided
herein by the Underwriters shall be the exclusive remedy of any Insurer Party
for the Losses resulting from the Underwriter's breach of a representation,
warranty or agreement hereunder; provided, however, that the Insurer Party shall
be entitled to pursue any other remedy at law or in equity for any such breach
so long as the damages sought to be recovered shall not exceed the Losses
incurred thereby resulting from such breach. In the event that any action or
regulatory proceeding shall be commenced or claim asserted which may entitle an
Insurer Party to be indemnified under this Agreement, such party shall give the
Representative written or telegraphic notice of such action or claim reasonably
promptly after receipt of written notice thereof. The Underwriters shall be
entitled to participate in the defense of any such action or claim in reasonable
cooperation with, and with the reasonable cooperation of, the Insurer Party. The
Indemnified Party will have the right to employ its own counsel in any such
action in addition to counsel for the Underwriters, but the fees and expenses of
such counsel will be at the expense of such Indemnified Party unless (1) the
employment of counsel by the Indemnified Party at its expense has been
authorized in writing by the Representative, or (2) the Underwriters have not in
fact employed counsel to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, or (3) the named
parties to any such action include the Underwriters on the one hand, and on the
other hand, the Indemnified Party, and such 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 Underwriters
(in which case, if such Indemnified Party notifies the Representative in writing
that it elects to employ separate counsel at the expense of the Underwriters,
the Underwriters shall not have the right to assume the defense of such action
or proceeding on such Indemnified Party's behalf), in each of which cases the
reasonable fees and expenses of counsel will be at the expense of the
Underwriters and all such fees and expenses will be reimbursed promptly as they
are incurred but, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, the Underwriters shall not be
liable for the fees and expenses of more than one counsel for all Insurer
Parties. The Insurer Party shall cooperate with the Underwriter Party and the
Issuer Party in resolving any event which would give rise to an indemnification
obligation
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pursuant to Section 5(b) hereof in the most efficient manner. No settlement of
any such claim or action shall be entered into without the consent of the
Insurer Party who is subject to such claim or action, on the one hand and the
Underwriter Party who is subject to such claim or action on the other hand;
provided, however, that the consent of such Insurer Party shall not be required
if such settlement fully discharges, with prejudice against the plaintiff, the
claim or action against such Insurer Party. Any failure by an Insurer Party to
comply with the provisions of this Section shall relieve the Underwriters of
liability only if such failure is materially prejudicial to any legal pleadings,
grounds, defenses or remedies in respect thereof or the Underwriters' liability
hereunder and then only to the extent of such prejudice.
9. Notice to be Given to the Issuer. Except as provided below in
Section 10 with respect to contribution, the indemnification provided herein by
the Issuer shall be the exclusive remedy of any Insurer Party for the Losses
resulting from the Issuer's breach of a representation, warranty or agreement
hereunder; provided, however, that the Insurer Party shall be entitled to pursue
any other remedy at law or in equity for any such breach so long as the damages
sought to be recovered shall not exceed the Losses incurred thereby resulting
from such breach. In the event that any action or regulatory proceeding shall be
commenced or claim asserted which may entitle an Insurer Party to be indemnified
under this Agreement, such party shall give the Issuer written or telegraphic
notice of such action or claim reasonably promptly after receipt of written
notice thereof. The Issuer shall be entitled to participate in the defense of
any such action or claim in reasonable cooperation with, and with the reasonable
cooperation of, the Insurer Party. The Indemnified Party will have the right to
employ its own counsel in any such action in addition to counsel for the Issuer,
but the fees and expenses of such counsel will be at the expense of such
Indemnified Party unless (1) the employment of counsel by the Indemnified Party
at its expense has been authorized in writing by the Issuer, or (2) the Issuer
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, or (3)
the named parties to any such action include the Issuer on the one hand, and on
the other hand, the Indemnified Party, and such 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 Issuer
(in which case, if such Indemnified Party notifies the Issuer in writing that it
elects to employ separate counsel at the expense of the Issuer, the Issuer shall
not have the right to assume the defense of such action or proceeding on such
Indemnified Party's behalf), in each of which cases the reasonable fees and
expenses of counsel will be at the expense of the Issuer and all such fees and
expenses will be reimbursed promptly as they are incurred but, in connection
with any one action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, the Issuer shall not be liable for the fees and expenses of more
than one counsel for all Insurer Parties. The Insurer Party shall cooperate with
the Issuer Party and the Underwriter Party in resolving any event which would
give rise to an indemnification obligation pursuant to Section 5(c) hereof in
the most efficient manner. No settlement of any such claim or action shall be
entered into without the consent of the Insurer Party, who is subject to such
claim or
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action, on the one hand and the Issuer Party on the other hand; provided,
however, that the consent of such Insurer Party shall not be required if such
settlement fully discharges, with prejudice against the plaintiff, the claim or
action against such Insurer Party. Any failure by an Insurer Party to comply
with the provisions of this Section shall relieve the Issuer of liability only
if such failure is materially prejudicial to any legal pleadings, grounds,
defenses, or remedies in respect thereof or the Issuer's liability hereunder and
then only to the extent of such prejudice.
10. Contribution.
(a) To provide for just and equitable contribution if the
indemnification provided by the Insurer is determined to be unavailable
for any Underwriter Party or Issuer Party (other than pursuant to Section
5 or 7 of this Agreement), the Insurer shall contribute to the aggregate
costs of liabilities arising from any breach of a representation or
warranty set forth in this Agreement on the basis of the relative fault of
all Underwriter Parties, all Issuer Parties and all Insurer Parties,
respectively.
(b) To provide for just and equitable contribution if the
indemnification provided by the Issuer is determined to be unavailable for
any Insurer Party (other than pursuant to Section 5 or 9 of this
Agreement), the Issuer shall contribute to the aggregate costs of
liabilities arising from any breach of a representation or warranty set
forth in this Agreement on the basis of the relative fault of all
Underwriter Parties, all Issuer Parties and all Insurer Parties.
(c) To provide for just and equitable contribution if the
indemnification provided by the Underwriters is determined to be
unavailable for any Insurer Party (other than pursuant to Section 5 or 8
of this Agreement), the Underwriters shall contribute to the aggregate
costs of liabilities arising from (i) any untrue statement or alleged
untrue statement of a material fact in the Underwriters Information or
(ii) the omission or alleged omission to state in the Underwriters
Information 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 on the basis of the relative fault of all
Underwriter Parties, all Issuer Parties and all Insurer Parties; provided
however, that the Underwriter Party shall not be liable for any amount in
excess of (i) the excess of the sales prices of the Class A Certificates
to the public over the prices paid therefor by the Underwriters, over (ii)
the aggregate amount of any damages which the Underwriter Party has been
otherwise required to pay in respect of the same or any substantially
similar claim.
(d) The relative fault of each Indemnifying Party, on the one hand,
and of 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 in Section 2, 3 or
4 of this
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Agreement relates to information supplied by, or action 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.
(e) The parties agree that the Insurer shall be solely responsible
for the Insurer Information and for the Insurer Financial Statements, that
the Underwriters shall be solely responsible for the Underwriter
Information and that the Issuer shall be responsible for all other
information in the Registration Statement and in the Prospectus.
(f) No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
(g) The indemnity and contribution agreements contained in this
Agreement shall remain operative and in full force and effect, regardless
of (i) any investigation made by or on behalf of any Underwriter Party,
any Issuer Party or any Insurer Party, (ii) the issuance of the
Certificates or the Policy or (iii) any termination of this Agreement.
(h) Upon the incurrence of any Losses entitled to contribution
hereunder, the contributor shall reimburse the party entitled to
contribution promptly upon establishment by the party entitled to
contribution to the contributor of the Losses incurred.
It is understood and agreed that the indemnities set forth in this
Agreement shall service the execution and delivery of this Agreement and the
issuance, sale and delivery of the Class A Certificates.
11. Notices. All notices and other communications provided for under
this Agreement shall be addressed to the address set forth below as to each
party or at such other address as shall be designated by a party in a written
notice to the other party.
If to the Insurer: Financial Guaranty Insurance Company
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
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If to the Issuer: ADVANTA Mortgage
Conduit Services, Inc.
00000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
If to the Underwriter: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
12. Governing Law, Etc. This Agreement shall be deemed to be a
contract under the laws of the State of New York and shall be governed by and
construed in accordance with the laws of the State of New York without regard to
its conflicts of laws provisions. This Agreement may not be assigned by any
party without the express written consent of each other party. Amendments of
this Agreement shall be in writing signed by each party. This Agreement shall
not be effective until executed by each of the Insurer, the Issuer and the
Representative.
13. Underwriting Agreement; Pooling and Servicing Agreement. This
Agreement in no way limits or otherwise affects the indemnification obligations
of the Issuer under (a) the Underwriting Agreement or (b) the Pooling and
Servicing Agreement.
14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized, all as of the date first above written.
FINANCIAL GUARANTY INSURANCE
COMPANY
By:__________________________
Name:
Title:
ADVANTA MORTGAGE CONDUIT
SERVICES, INC.
By:__________________________
Name: Xxxx Xxxxxx
Title: Vice President
XXXXXX XXXXXXX & CO.
INCORPORATED
By:__________________________
Name: Xxxxxx Xxxxxx
Title: Principal
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