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EXHIBIT 1.1
OH&S DRAFT
12/28/99
FORM OF UNDERWRITING AGREEMENT
_________ __, 2000
[Underwriter]
Ladies and Gentlemen:
1. Introduction. Advanta Equipment Receivables Series 2000-__
LLC ("Advanta LLC") proposes to issue the $___________ aggregate principal
amount of Equipment Receivables Asset-Backed Notes, Series 2000-__, Class A-1
(the "Class A-1 Notes"), $___________ aggregate principal amount of Equipment
Receivables Asset-Backed Notes, Series 2000-__ Class A-2 (the "Class A-2
Notes"), $___________ aggregate principal amount of Equipment Receivables
Asset-Backed Notes, Series 2000-__ Class A-3 (the "Class A-3 Notes") and
$____________ aggregate principal amount of Equipment Receivables Asset-Backed
Notes and Series 2000-__ Class A-4 (the "Class A-4 Notes").
Advanta LLC proposes to issue $____________ aggregate
principal amount of Equipment Receivables Asset-Backed Notes, Series 2000-__
Class B Notes (the "Class B Notes").
Advanta LLC proposes to issue $___________ aggregate principal
amount of Equipment Receivables Asset-Backed Notes, Series 2000-__ Class C Notes
(the "Class C Notes" and, together with the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class A-4 Notes and the Class B Notes, the
"Offered Notes").
Advanta LLC also proposes to issue $_____________ aggregate
principal amount of Equipment Receivables Asset-Backed Notes, Series 2000-__
Class D Notes (the "Class D Notes" and, together with the Offered Notes, the
"Notes"). The Notes are issued pursuant to an Indenture, dated as of _________
__, 2000 (the "Indenture") between Advanta LLC, as issuer, and
____________________, as Trustee (the "Trustee"). Capitalized terms used herein
but not defined shall have the meaning ascribed to them in the Indenture.
Advanta Bank Corp. (the "Bank") and Advanta LLC hereby agree
with _____________ (the "Representative"), as representative of the underwriters
attached on Schedule A hereto (the "Underwriters") as follows:
2. Representations and Warranties of Advanta LLC. Advanta LLC
represents and warrants to, and agrees with, the Underwriters that:
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(a) Advanta LLC has all requisite corporate power, authority
and legal right to own its property and conduct its business as such properties
are presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this underwriting agreement (the
"Underwriting Agreement"), the Notes, and each of the Indenture and the Transfer
and Servicing Agreement dated as of ___________ __, 2000 (the "Transfer
Agreement", and together with the Indenture, the "Transaction Documents"), among
the Bank, as Transferor and Servicer and Advanta LLC, as Transferee.
(b) The execution and delivery of the Underwriting Agreement,
the Notes and each of the Transaction Documents, the incurrence of the
obligations herein and therein set forth and the consummation of the
transactions contemplated hereunder and thereunder have been duly authorized by
the members of Advanta LLC and all other necessary action has been taken.
(c) The Underwriting Agreement has been duly authorized and
validly executed and delivered by Advanta LLC.
(d) Each of the Transaction Documents will be executed and
delivered by Advanta LLC on or before the Closing Date (as defined herein), and
when executed and delivered by the other parties thereto, will constitute a
valid and binding agreement of Advanta LLC, enforceable against Advanta LLC in
accordance with its terms, except to the extent that (i) the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, receivership or other similar laws now or hereafter in effect
affecting the enforcement of creditors' or other obligees' rights in general,
(ii) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought and (iii) certain
remedial provisions of the Indenture may be unenforceable in whole or in part
under the Uniform Commercial Code (the "UCC"), but the inclusion of such
provisions does not render the other provisions of the Indenture invalid and,
notwithstanding that such provisions may be unenforceable in whole or in part,
the Trustee, on behalf of the Noteholders, will be able to enforce the remedies
of a secured party under the UCC.
(e) The Notes will be issued pursuant to the terms of the
Indenture and, when executed by Advanta LLC and authenticated by the Trustee in
accordance with the Indenture and, with respect to the Offered Notes only,
delivered pursuant to the Underwriting Agreement, will be validly issued and
outstanding and entitled to the benefits of the Indenture. The Notes will be in
all material respects in the form contemplated by the Indenture and will conform
to the description thereof contained in the Prospectus (as defined herein) and
Registration Statement (as defined herein), each as amended or supplemented.
(f) Advanta LLC is not in violation of any requirement of law
or in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of
trust, lease or other instrument to which it is a party or by which it is bound
or to which any of its property is subject, which violations or defaults
separately or in the aggregate would have a material adverse effect on Advanta
LLC.
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(g) Neither the issuance and sale of the Offered Notes, nor
the execution and delivery by Advanta LLC of the Underwriting Agreement, the
Notes or the Transaction Documents, nor the incurrence by Advanta LLC of the
obligations herein and therein set forth, nor the consummation of the
transactions contemplated hereunder or thereunder, nor the fulfillment of the
terms hereof or thereof does or will (i) violate any requirement of law
presently in effect, applicable to it or its properties or by which it or its
properties are or may be bound or affected, (ii) conflict with, or result in a
breach of, or constitute a default under, any indenture, contract, agreement,
deed, lease, mortgage or instrument to which it is a party or by which it or its
properties are bound, or (iii) result in the creation or imposition of any Lien
upon any of its property or assets, except for those encumbrances created under
the Indenture.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by Advanta LLC of the Underwriting Agreement,
the Notes or the Transaction Documents, or to the consummation of the
transactions contemplated hereunder and thereunder, or to the fulfillment of the
terms hereof and thereof have been or will have been obtained on or before the
Closing Date.
(i) All actions required to be taken by Advanta LLC as a
condition to the offer and sale of the Offered Notes as described herein or the
consummation of any of the transactions described in the Prospectus and
Registration Statement have been or, prior to the Closing Date, will be taken.
(j) The Indenture has been qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(k) The representations and warranties made by Advanta LLC in
the Indenture and made in any Officer's Certificate of Advanta LLC delivered
pursuant to the Indenture will be true and correct at the time made and on and
as of the Closing Date as if set forth herein.
(l) Advanta LLC agrees it has not granted, assigned, pledged
or transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the [Contracts],
except as provided in the Indenture, and agrees to take all action required by
the Indenture in order to maintain the security interest in the [Contracts]
granted pursuant to the Indenture.
(m) A registration statement on Form S-3 (No. ___________),
including a form of prospectus and representative form of prospectus supplement
and such amendments thereto as may have been required to the date hereof,
relating to the Offered Notes and the offering thereof in accordance with the
Securities Act of 1933, as amended (the "Act"), has been filed with, and has
been declared effective by, the Securities and Exchange Commission (the
"Commission"). If any post-effective amendment to such registration statement
has been filed with the Commission prior to the execution and delivery of the
Underwriting Agreement, the most recent such amendment has been declared
effective by the Commission. For purposes of the Underwriting Agreement,
"Effective Time" means the date and time as of which such registration
statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, and
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"Effective Date" means the date of the Effective Time. Such registration
statement, as amended at the Effective Time, is hereinafter referred to as the
"Registration Statement." Advanta LLC proposes to file with the Commission
pursuant to Rule 424(b) ("Rule 424(b)") under the Act a supplement (the
"Prospectus Supplement") to the prospectus included in the Registration
Statement (such prospectus, in the form it appears in the Registration Statement
or in the form most recently revised and filed with the Commission pursuant to
Rule 424(b), is hereinafter referred to as the "Base Prospectus") relating to
the Offered Notes and the method of distribution thereof. The Base Prospectus
and the Prospectus Supplement, together with any amendment thereof or supplement
thereto, are hereinafter referred to as the "Prospectus."
(n) On the Effective Date, the Registration Statement
conformed in all respects to the requirements of the Act and the rules and
regulations of the Commission thereunder (the "Rules and Regulations") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and on the date of the Underwriting Agreement, the
Registration Statement and the Prospectus conform, and at the time of filing of
the Prospectus pursuant to Rule 424(b) the Registration Statement and the
Prospectus will conform, in all respects with the requirements of the Act and
the Rules and Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply to
statements in or omissions from either of such documents based upon written
information furnished to Advanta LLC by the Underwriters specifically for use
therein.
(o) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of Advanta
LLC from ________ __, 2000.
3. Purchase, Sale, Payment and Delivery of the Offered Notes.
(a) On the basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set forth, Advanta LLC
agrees to sell to the Underwriters, and the Underwriters agree to purchase from
Advanta LLC, the Offered Notes, each Underwriter to purchase the amounts shown
on Schedule A hereto at the prices set forth on such Schedule A. The Offered
Notes will settle without accrued interest.
(b) Advanta LLC will deliver the Offered Notes to you against
payment of the purchase price in immediately available funds, drawn to the order
of Advanta LLC, at the office of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on ________
__, 2000, or at such other time not later than seven full business days
thereafter as you and the Bank determine, such time being herein referred to as
the "Closing Date." Each class of the Offered Notes so to be delivered shall be
represented by one or more definitive Offered Notes registered in the name of
Cede & Co., as nominee for The Depository Trust Company. Advanta LLC shall make
such definitive Offered Notes representing the Offered Notes available for
inspection by the Underwriters at the office at which the Offered Notes are to
be delivered no later than five hours before the close of business in New York
City on the business day prior to the Closing Date.
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4. Offering by Underwriters. It is understood that after the
Effective Date, the Underwriters propose to offer the Offered Notes for sale to
the public (which may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of Advanta LLC and the Bank. Advanta LLC
and the Bank, each for itself agrees with the Underwriters that:
(a) It will not file any amendment of the Registration
Statement with respect to the Offered Notes or supplement to the Prospectus
unless a copy has been furnished to you for your review a reasonable time prior
to the proposed filing thereof or to which you shall reasonably object to in
writing. It will advise you promptly of (i) the effectiveness of any amendment
or supplementation of the Registration Statement or Prospectus, (ii) any request
by the Commission for any amendment or supplementation of the Registration
Statement or the Prospectus or for any additional information, (iii) the receipt
by it of any notification with respect to the suspension of qualification of the
Offered Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purposes and (iv) the institution by the Commission of
any stop order proceeding in respect of the Registration Statement, and will use
their best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Offered
Notes is required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Bank promptly will prepare and file with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither your consent
to, nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(c) As soon as practicable, Advanta LLC will make generally
available to the Noteholders an earnings statement or statements of Advanta LLC
covering a period of at least 12 months beginning after the Effective Date which
will satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Commission promulgated thereunder.
(d) The Bank will furnish to you copies of the Registration
Statement (one of which will be signed and will include all exhibits), the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as you reasonably request.
(e) The Bank will endeavor to qualify the Offered Notes for
sale under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and the determination of the eligibility for investment of
the Offered Notes under the laws of such jurisdictions as you may designate and
will continue such qualifications in effect so long as required for the
distribution of the Offered Notes; provided, however, that neither the Bank nor
Advanta LLC shall be obligated to qualify to do business in any jurisdiction
where such
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qualification would subject the Bank or Advanta LLC, as the case may be, to
general or unlimited service of process in any jurisdiction where it is not now
so subject.
(f) For a period from the date of the Underwriting Agreement
until the retirement of the Offered Notes, the Bank, as Servicer, will furnish
to you copies of each certificate and the annual statements of compliance
delivered to the Trustee pursuant to Section [___] of the Indenture and the
annual servicing reports furnished to the Trustee pursuant to Section [___] of
the Indenture, by first class mail as soon as practicable after such Offered
Notes, statements and reports are furnished to the Trustee.
(g) So long as any Offered Note is outstanding, the Bank will
furnish to you, by first-class mail as soon as practicable (i) all documents
concerning the Offered Notes distributed by the Bank to Noteholders, or filed
with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), (ii) any order of the Commission under the Act or the
Exchange Act in regard to Advanta LLC or the Bank, or pursuant to a "no-action"
letter obtained from the staff of the Commission by Advanta LLC or the Bank and
affecting Advanta LLC or the Bank and (iii) from time to time, such other
information concerning Advanta LLC as you may reasonably request.
(h) Whether or not the transactions contemplated by the
Underwriting Agreement are consummated or the Underwriting Agreement is
terminated for any reason, except a default by you hereunder, Advanta LLC will
pay all expenses incident to the performance of Advanta LLC's obligations under
the Underwriting Agreement and will reimburse the Underwriters for [any other
fees or expenses agreed upon by Advanta LLC and the Underwriters] and the Bank
will pay all expenses incident to the performance of the Bank's obligations
under the Underwriting Agreement and will reimburse the Underwriters for [any
other fees and expense agreed upon by the Bank and the Underwriters.]
(i) To the extent, if any, that any of the ratings provided
with respect to the Offered Notes by the Rating Agencies are conditional upon
the furnishing of documents or the taking of any other actions by Advanta LLC or
the Bank, Advanta LLC or the Bank, as appropriate shall furnish such documents
and take any such other actions.
6. Conditions of the Obligations of the Underwriters. The
obligation of the Underwriters to purchase and pay for the Offered Notes will be
subject to the accuracy of the representations and warranties on the part of
Advanta LLC herein, to the accuracy of the statements of officers of Advanta LLC
made pursuant to the provisions hereof, to the performance by Advanta LLC and
the Bank of their respective obligations hereunder and to the following
additional conditions precedent:
(a) On or prior to the date of the Underwriting Agreement, you
shall have received a letter, dated the date of the Underwriting Agreement, of
[independent accountants], confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder, substantially in the form heretofore agreed to and
otherwise in form and in substance satisfactory to you and your counsel.
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(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations; and, prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been instituted or,
to the knowledge of Advanta LLC, the Bank or you, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of the
Underwriting Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly the
business or properties of Advanta LLC, the Bank or Advanta Corp. which, in your
judgment, materially impairs the investment quality of the Offered Notes; (ii)
any downgrading in the rating of any debt securities of Advanta LLC, the Bank or
Advanta Corp. by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating), (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of Advanta LLC,
the Bank or Advanta Corp. on any exchange or in the over-the-counter market;
(iv) any banking moratorium declared by federal, Delaware or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in your
judgment, the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
sale of and payment for the Offered Notes.
(d) You shall have received an opinion, dated the Closing
Date, of ____________, General Counsel for the Bank and/or _______________,
special counsel, to the effect that:
(i) The Bank is a corporation duly organized, validly existing
and in good standing under the laws of the State of Utah.
(ii) The Bank is an active corporation authorized to do
business and in good standing in the State of ________.
(iii) Advanta LLC is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
(iv) Both the Bank and Advanta LLC has taken all necessary
action to authorize the execution and delivery of each of the
Transaction Documents to which it is a party and the performance of its
obligations thereunder.
(v) The execution and delivery of each of the Transaction
Documents to which the Bank and Advanta LLC are a party, and their
respective performance of their obligations thereunder, will not (i)
contravene, or constitute a default under, any provision of applicable
law or regulation or of their respective certificates (or articles) of
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incorporation, limited liability company agreement or bylaws or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon such company. Such opinion shall be based upon actual
knowledge.
(vi) Based on actual knowledge, there is no action, suit or
other proceeding against the Bank or Advanta LLC that would materially
adversely affect the business or financial condition of such party or
that would materially adversely affect the ability of such company to
perform its obligations under the Transaction Documents to which it is
a party.
(e) You shall have received an opinion dated the closing date,
of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to Advanta LLC and the
Bank, to the effect that:
(i) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Securities and Exchange
Commission pursuant to Rule 424(b) promulgated under the Act; to the
best of such counsel's knowledge, no stop order, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act; and the Registration Statement
and the Prospectus (other than the financial and statistical
information therein as to which such counsel expresses no opinion), as
of its effective date, with respect to the Registration Statement, or
its date, with respect to the Prospectus, complied as to form in all
material respects with requirements of the Act and the rules and
regulations promulgated thereunder.
(ii) Each of the Underwriting Agreement, the Transaction
Documents and the Offered Notes conform in all material respects to the
descriptions thereof contained in the Registration Statement, in the
form in which it became effective, and the Prospectus.
(iii) Each of the Underwriting Agreement, the Transaction
Documents and the Offered Notes constitutes the legal, valid and
binding obligation of the Bank (except with respect to the Indenture to
which the Bank is not a party) and Advanta LLC, enforceable against
each of the Bank (except with respect to the Indenture to which the
Bank is not a party) and Advanta LLC in accordance with its terms,
subject to (a) limitations imposed by bankruptcy, insolvency,
reorganization, arrangement, moratorium, receivership, conservatorship,
readjustment of debts or other laws, including those relating to
fraudulent transfers or relating to or affecting the rights of
creditors generally; (b) rights to indemnification and contribution
which may be limited by applicable law or equitable principles or
otherwise unenforceable as against public policy; (c) the
unenforceability under certain circumstances of provisions imposing
penalties, forfeiture, late payment charges, or an increase in interest
rate upon delinquency in payment or to the occurrence of any event of
default; or (d) general principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, and the possible unavailability of specific performance
or injunctive relief, regardless of whether such enforceability is
considered in a proceeding at equity or at law.
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(iv) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
(v) Neither the Bank nor Advanta LLC is an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(f) You shall have received from _____________, special
Delaware counsel, an opinion with respect to the perfection of the security
interests granted by Advanta LLC, and from ______________ an opinion with
respect to the perfection of transfers from the Bank to Advanta LLC.
(g) You shall have received an opinion, dated the Closing
Date, from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel to the Bank and
Advanta LLC, with respect to federal bankruptcy matters satisfactory to the
Rating Agencies.
(h) You shall have received a certificate from Advanta LLC,
dated the Closing Date, of a Vice President or senior officer of the managing
member of Advanta LLC in which such officer, to the best of his or her knowledge
after reasonable investigation, shall state that (v) the representations and
warranties of Advanta LLC in the Underwriting Agreement are true and correct in
all material respects on and as of the Closing Date, (w) Advanta LLC has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (x) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are threatened by
the Commission, (y) nothing has come to such officer's attention that would lead
such officer to believe that the Registration Statement or the Prospectus, and
any amendment or supplement thereto, as of its date and as of the Closing Date,
contained an untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and (z) subsequent
to the date of the Prospectus, there has been no material adverse change in the
financial position or results of operation of Advanta LLC's business except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(i) You shall have received an opinion of _________________,
counsel to the Trustee, addressed to you, dated the Closing Date, satisfactory
in form and substance to you and your counsel and substantially to the effect
that:
(i) The Trustee is a _________________ and is authorized
thereunder to transact the business of banking and to exercise
fiduciary powers.
(ii) Each of the Transaction Documents to which the Trustee is
a party has been duly and validly authorized, executed and delivered by
the Trustee, and constitutes the legal, valid, binding and enforceable
obligations of the Trustee, except as enforceability may be limited by
(a) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization, arrangement, or other similar laws relating to bank
insolvency (including the Federal Deposit Insurance Act, as amended by
the Financial Institutions, Reform, Recovery
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and Enforcement Act of 1989) and affecting the enforcement of the
rights of creditors generally, whether now or hereinafter in effect,
and (b) general principles of equity, whether such enforcement is
considered in a proceeding in equity or at law.
(j) You shall have received evidence satisfactory to you that
the Class A-1 Notes shall be rated "___" by ____________ and ____________, the
Class A-2 Notes shall be rated no lower than "___" by ____________ and
____________, the Class A-3 Notes shall be rated no lower than "___" by
____________ and ____________, the Class A-4 Notes shall be rated no lower than
"___" by ____________ and ____________, the Class B Notes shall be rated no
lower than "___" by ____________ and ____________, the Class C Notes shall be
rated no lower than "___" by ____________ and ____________ and the Class D Notes
shall be rated no lower than "___" by ____________ and ____________.
(k) Advanta LLC will furnish you with such conformed copies of
such opinions, Offered Notes, letters and documents as you reasonably request.
7. Indemnification and Contribution.
(a) The Bank will indemnify and hold harmless the Underwriters
against any losses, claims, damages or liabilities, joint or several, to which
the Underwriters may become subject, under the 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 or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Underwriters for any legal or other expenses reasonably incurred
by the Underwriters in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the foregoing indemnity shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Notes if such untrue statement or omission or alleged untrue
statement or omission made in the Preliminary Prospectus is eliminated or
remedied in the Prospectus (as amended or supplemented if Advanta LLC and the
Bank shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so amended or supplemented) shall
not have been furnished to such person at or prior to the written confirmation
of the sale of such Offered Notes to such person; provided further, however,
that the Bank will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to Advanta LLC and the Bank by the Underwriters
specifically for use therein.
(b) The Underwriters agree, severally and not jointly, to
indemnify and hold harmless Advanta LLC and the Bank against any losses, claims,
damages or liabilities to which Advanta LLC or the Bank may become subject,
under the Act or otherwise and will reimburse any legal or other expenses
reasonably incurred by Advanta LLC or the Bank in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are
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incurred, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to Advanta
LLC or the Bank by the Underwriters specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by Advanta LLC or the
Bank in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. If the indemnification
provided for in this section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by Advanta LLC or the Bank on the one hand and
the Underwriters on the other from the offering of the Offered Notes, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
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 Advanta LLC and
the Bank on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by Advanta LLC and the Bank on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) of the Offered
Notes received by Advanta LLC and the Bank bear to the total underwriting
discounts and commissions received by the Underwriters with respect to the
Offered Notes. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by Advanta LLC and the Bank or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission with respect to the Offered
Notes. The amount paid by
12
an indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (c) shall be deemed to
include any other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (c). Notwithstanding the provisions of this
subsection (c), the Underwriters shall not be required to contribute any amount
in excess of the amount by which the total price at which the Offered Notes
underwritten by the Underwriters and distributed to the public were offered to
the public exceeds the amount of any damages which the Underwriters have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission with respect to the Offered Notes. 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. The obligations of Advanta LLC and
the Bank under this Section shall be in addition to any liability which Advanta
LLC and the Bank may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Underwriters within the
meaning of the Act; and the obligations of the Underwriters under this section
shall be in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director of
Advanta LLC and the Bank, to each officer of Advanta LLC and the Bank who has
signed the Registration Statement and to each person, if any, who controls
Advanta LLC or the Bank within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of Advanta LLC and the Bank or their officers and of the Underwriters
set forth in or made pursuant to the Underwriting Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters, Advanta LLC and the
Bank or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Notes. If the Underwriting Agreement is terminated, or if for any reason other
than default by the Underwriters the purchase of the Offered Notes by the
Underwriters is not consummated, Advanta LLC and the Bank shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of Advanta LLC and the Bank and the
Underwriters pursuant to Section 7 shall remain in effect. If for any reason the
purchase of the Offered Notes by the Underwriters is not consummated other than
solely because of the occurrence of any event specified in clause (iii), (iv) or
(v) of Section 6(c) or because of the failure of the Underwriters to comply with
the terms of this Underwriting Agreement, Advanta LLC and the Bank will
reimburse the Underwriters for all out-of-pocket expenses (including ________
and ________ to the extent set forth in Section 5(h)) reasonably incurred by
them in connection with the offering of the Offered Notes.
9. Computational Materials and ABS Term Sheets.
(a) Each Underwriter agrees to provide to Advanta LLC and the
Bank, not less than two Business Days prior to the date on which Advanta LLC and
the Bank are required to file the Prospectus pursuant to Rule 424(b), any
information used by it (in such written or electronic format as required by
Advanta LLC and the Bank) with respect to the offering of the Offered Notes that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx,
13
Peabody & Co. Incorporated and Xxxxxx Structured Asset Corporation (as made
generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994 (the "Xxxxxx/PSA Letter")), that is not contained in the Prospectus
or the Preliminary Prospectus (without taking into account information
incorporated therein by reference).
(b) Each Underwriter agrees to provide to Advanta LLC and the
Bank, not less than two Business Days prior to the date on which Advanta LLC and
the Bank are required to file the Prospectus pursuant to Rule 424(b), any
information used by it (in such written or electronic format as required by
Advanta LLC and the Bank) with respect to the offering of the Offered Notes that
constitutes "ABS Term Sheets," as defined in the Commission's No-Action Letter,
dated February 17, 1995, addressed to the Public Securities Association, that is
not contained in the Prospectus or the Preliminary Prospectus (without taking
into account information incorporated therein by reference).
(c) Each Underwriter severally agrees, assuming all
information provided by Advanta LLC and the Bank is accurate and complete in all
material respects, to indemnify and hold harmless Advanta LLC and the Bank, each
of the officers and directors of Advanta LLC and the Bank and each person who
controls Advanta LLC and the Bank within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the 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
Computational Materials or ABS Term Sheets, if any, provided by the Underwriter,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by such indemnified party 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 the Underwriter under this Section 9(c) shall be in addition to
any liability that the Underwriter may otherwise have.
The procedures set forth in Sections 7(b) and 7(c) shall be
equally applicable to this Section 9(c).
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representative.
11. Counterparts. The Underwriting Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same agreement.
12. Applicable Law. THE UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
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13. Financial Services Act. Each Underwriter represents and
warrants to, and agrees with, Advanta LLC and the Bank that (w) it has complied
and will comply with all applicable provisions of the Financial Services Xxx
0000 and the Public Offers of Securities Regulations 1995 (the "Regulations")
with respect to anything done by it in relation to the Offered Notes in, from or
otherwise involving the United Kingdom; (x) it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or are persons to whom the document may
otherwise lawfully be issued or passed on; (y) if it is an authorized person
under Chapter III of part I of the Financial Services Xxx 0000, it has only
promoted and will only promote (as that term is defined in Regulation 1.02(2) of
the Financial Services (Promotion of Unregulated Schemes Regulations 1991) to
any person in the United Kingdom the scheme described in the Prospectus if that
person is of a kind described in either section 76(2)of the Financial Services
Xxx 0000 or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulation 1991; and (z) it is a person of a kind described
in Article 11(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996.
15
If you are in agreement with the foregoing, please sign three
counterparts hereof and return one to Advanta LLC and one to the Bank whereupon
this letter and your acceptance shall become a binding agreement among Advanta
LLC and the Bank and the Underwriters.
Very truly yours,
ADVANTA BANK CORP.
By: ____________________________
Name:
Title:
ADVANTA EQUIPMENT RECEIVABLES SERIES
2000-__ LLC
By: ____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[Underwriter]
as Representative of the
Underwriters set forth herein
By: _______________________
Name:
Title:
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SCHEDULE A
Principal
Amount of
Underwriters Class A-1 Notes Price
------------ --------------- -----
Principal
Amount of
Underwriters Class A-2 Notes Price
------------ --------------- -----
Principal
Amount of
Underwriters Class A-3 Notes Price
------------ --------------- -----
Principal
Amount of
Underwriters Class A-4 Notes Price
------------ --------------- -----
Principal
Amount of
Underwriters Class B Notes Price
------------ --------------- -----
Principal
Amount of
Underwriters Class C Notes Price
------------ --------------- -----
