$
ADVANTA AUTO FINANCE CORPORATION 199 -
% Automobile Receivables Backed Certificates, Series 199
UNDERWRITING AGREEMENT
, 199
[NAME AND ADDRESS OF UNDERWRITER]
Dear Sirs:
1. Introduction. Advanta Auto Finance Corporation 199 - , a
Nevada corporation ("Advanta"), has authorized the issuance and sale of %
Automobile Receivables Backed Certificates, Series 199 - (the "Certificates"),
evidencing interests in a trust (the "Trust") consisting of a combination of
retail installment sales contracts (the "Receivables") secured by new and used
automobiles and light duty trucks (the "Vehicles") financed thereby, amounts due
or received thereunder on or after , 199 , (the "Cut-Off Date"), and
security interests in the Vehicles financed thereby. The Certificates will be
issued under a Pooling and Servicing Agreement dated as of , 199 (the
"Pooling Agreement") between , as
seller, , as issuer, Advanta Auto Finance Corporation, in its
individual capacity, as Back-up Servicer and ,
as trustee (the "Trustee").
The Certificates will evidence fractional undivided interests
in the Trust. [The Trustee, on behalf of the holders of the Certificates (the
"Certificateholders"), will have the benefit of a cash collateral account (the
"Cash Collateral Account")]. The Certificates will be issued in an aggregate
principal amount of $ , which is equal to the original pool
balance of the Receivables, exclusive of accrued interest, as of the opening of
business on the Cut-Off Date. The forms of the Pooling Agreement and the Cash
Collateral Trust Agreement (as such term is hereinafter defined) have been
timely filed as exhibits to the Registration Statement (as such term is
hereinafter defined). Capitalized terms used but not defined herein shall have
the meanings given to them in the Pooling Agreement.
The Trustee, , as cash collateral trustee (the
"Cash Collateral Trustee"), , and a financial institution as cash
collateral depositor (the "Cash Collateral Depositor"), will enter into a cash
collateral trust agreement to be dated as of , 199 (the "Cash
Collateral Trust Agreement") pursuant to which the Cash Collateral Account will
be established for the benefit of the Trustee and the Cash Collateral Depositor,
as secured parties. In addition, , the Cash Collateral Trustee,
the lenders named therein and the Cash Collateral Depositor will enter into a
loan agreement to be dated as of the Closing Date (the "Loan Agreement"),
pursuant to which the Cash Collateral Depositor and the Bank will deposit the
Initial Cash Collateral Amount (as
defined in the Cash Collateral Trust Agreement) into the Cash Collateral
Account.
Advanta hereby agrees with the Underwriter named in Schedule 1
hereto (the "Underwriter") as follows:
2. Representations and Warranties of Advanta. Advanta
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A Registration Statement on Form S-3 (No. 33- )
relating to the Certificates, including a form of Prospectus, has been filed
with the Securities and Exchange Commission (the "Commission") and either (i)
has been declared effective under the Act of 1933 (the "Act") and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If Advanta does not propose to amend such Registration
Statement or if any post-effective amendment to such Registration Statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, such Registration Statement or such post-effective amendment, as the
case may be, has been declared effective by the Commission. For purposes of this
Agreement, "Effective Time" means (i) if Advanta has advised the Underwriter
that it does not propose to amend such Registration Statement, the date and time
as of which such Registration Statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission, or (ii) if Advanta has
advised the Underwriter that it proposes to file an amendment or post-effective
amendment to such Registration Statement, the date and time as of which such
Registration Statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission.
"Effective Date" means the date of the Effective Time. Such Registration
Statement, as amended at the Effective Time, including all material incorporated
by reference therein and including all information, if any, deemed to be a part
of such Registration
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Statement as of the Effective Time pursuant to Rule 430A(b) under the Act, is
referred to herein as the "Registration Statement", and the form of prospectus
relating to the Certificates, as first filed with the Commission pursuant to and
in accordance with Rule 424(b) under the Act or, if no such filing is required,
as included in the Registration Statement, including all material incorporated
by reference in such prospectus, is hereinafter referred to as the "Prospectus".
(b) If the Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Effective Date, the Registration
Statement conformed, and on the date of this Agreement the Registration
Statement conforms, in all material respects with the requirements of the Act
and the rules and regulations of the Commission ("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 (ii) on the date of this Agreement, the Prospectus
conforms, and at the time of filing of the Prospectus pursuant to Rule 424(b)
and at the Closing Date, the Prospectus will conform, in all material respects
to the requirements of the Act and the Rules and Regulations, and the Prospectus
does not include and does not omit, and will not include, any untrue statement
of a material fact, and does not omit, to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. If the Effective Time is subsequent to the
execution and delivery of this Agreement: on the Effective Date, the
Registration Statement and the Prospectus will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and (i) the
Registration Statement will not include any untrue statement of a material fact
or will not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (ii) the Prospectus
will not include an untrue statement of a material fact or will not omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The two
preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information furnished to
Advanta by the Underwriter specifically for use therein, it being understood the
only such information is that described as such in Section 8(b). The conditions
to the use by Advanta of a Registration Statement on Form S-3 under the Act, as
set forth in the General Instructions to Form S-3, have been satisfied with
respect to the Registration Statement and the Prospectus. There are no contracts
or documents which are required to be filed as exhibits to the Registration
Statement pursuant to the Act or
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the Rules and Regulations which have not been so filed on or prior to the
Effective Date.
(c) Since the respective dates as of which information is
given in the Prospectus, or the Prospectus as amended and supplemented, there
has not been any material adverse change in the general affairs, management, or
results of operations of Advanta or of its subsidiaries otherwise than as set
forth or contemplated in the Prospectus or the Prospectus as amended and
supplemented, nor has there been any adverse change in the general affairs,
management, or results of operations of any other affiliate of Advanta which
could have a material adverse effect on the general affairs, management or
results of operations of Advanta or its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus or the Prospectus as amended and
supplemented.
(d) Advanta is a corporation duly organized and validly
existing under the laws of the State of Nevada, and has full corporate power,
authority and legal right to own its properties 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 Agreement, the Pooling
Agreement, the Cash Collateral Trust Agreement, and the Loan Agreement, and to
cause the Certificates to be issued. Advanta has conducted and is conducting its
business so as to comply in all material respects with all applicable statutes
and regulations. Advanta is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification.
(e) (i) There are no legal, governmental or regulatory
proceedings pending to which Advanta is a party or to which any of its property
is the subject, which, if determined adversely to Advanta, would individually or
in the aggregate have a material adverse effect on the performance by Advanta of
this Agreement, the Pooling Agreement, the Loan Agreement or the Cash Collateral
Trust Agreement or the consummation of the transactions contemplated hereunder
or thereunder and (ii) to the best of its knowledge, no such proceedings are
threatened or contemplated by governmental or regulatory authorities or
threatened by others.
(f) This Agreement has been duly authorized and validly
executed and delivered by Advanta and constitutes a valid and binding agreement
of Advanta, enforceable against Advanta in accordance with its terms, except to
the extent that (i) the enforceability hereof may be subject to insolvency,
reorganization, moratorium, receivership, conservatorship, or other similar
laws, regulations or procedures of general applicability now or hereafter in
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effect, (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)
rights to indemnification and contribution under this Agreement may be limited
by state or federal securities laws or the policies underlying such laws.
(g) The Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement have been duly authorized by Advanta and, when
executed and delivered by Advanta and assuming the due authorization, execution
and delivery of the Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement by the other parties thereto, will constitute valid
and binding obligations of Advanta enforceable against Advanta in accordance
with their respective terms, except to the extent that (i) the enforceability
thereof may be subject to insolvency, reorganization, moratorium, receivership,
conservatorship, or other similar laws, regulations or procedures of general
applicability now or hereafter in effect, and (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.
(h) The issuance and delivery of the Certificates, the
consummation of any other of the transactions contemplated herein, in the
Pooling Agreement, the Loan Agreement, or in the Cash Collateral Trust
Agreement, or the fulfillment of the terms of this Agreement, the Pooling
Agreement, the Loan Agreement or the Cash Collateral Trust Agreement, do not and
will not conflict with or violate any term or provision of the Certificate of
Incorporation By-Laws of Advanta, any statute, order or regulation applicable to
Advanta of any court, regulatory body, administrative agency or governmental
body having jurisdiction over Advanta and do not and will not conflict with,
result in a breach or violation or the acceleration of or constitute a default
under or result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of Advanta pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which Advanta is a party or by which Advanta may be bound or to
which any of the property or assets of Advanta may be subject except for
conflicts, violations, breaches, accelerations and defaults which would not,
individually or in the aggregate, be materially adverse to Advanta or materially
adverse to the transactions contemplated by this Agreement.
(i) is an independent
public accountant with respect to Advanta as required by the Act and the Rules
and Regulations.
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(j) The direction by Advanta to the Trustee to execute,
countersign, issue and deliver the Certificates has been duly authorized by
Advanta, and, assuming the Trustee has been duly authorized to do so, when
executed, countersigned, issued and delivered by the Trustee in accordance with
the Pooling Agreement, the Certificates will be validly issued and outstanding
and will be entitled to the benefits of the Pooling Agreement.
(k) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body of the
United States is required for the issuance and sale of the Certificates, or the
consummation by Advanta of the other transactions contemplated by this
Agreement, the Pooling Agreement, the Loan Agreement or the Cash Collateral
Trust Agreement, except the registration under the Act of the Certificates and
such consents, approvals, authorizations, registrations or quali- fications as
may have been obtained or effected or as may be required under securities or
Blue Sky laws in connection with the purchase and distribution of the
Certificates by the Underwriter.
(l) Advanta possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus and Advanta has not received notice of
proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations, financial condition or
income.
(m) At the time of execution and delivery of the Pooling
Agreement, Advanta (i) will not have assigned to any person any of its right,
title or interest in the Receivables or in the Pooling Agreement or the
Certificates and (ii) will have the power and authority to sell the Receivables
to the Trustee and to sell the Certificates to the Underwriter, and upon
execution and delivery of the Pooling Agreement by the Trustee, the Trustee will
have acquired beneficial ownership of all of Advanta's right, title and interest
in and to the Receivables, and upon delivery to the Underwriter of the
Certificates the Underwriter will have good and marketable title to the
Certificates.
(n) As of the Cut-Off Date, the Receivables will meet the
eligibility criteria described in the Prospectus.
(o) The Trust created by the Pooling Agreement is
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not, and immediately following the issuance and sale of the Certificates will
not be, required to be registered as an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 Act"), as in effect on the
date hereof.
(p) Advanta has authorized the conveyance of the Receivables
to the Trust, and Advanta has authorized the Trust to issue the Certificates.
(q) Each of the Certificates, the Pooling Agreement and the
Cash Collateral Account conforms in all material respects to the descriptions
thereof contained in the Prospectus.
(r) Any taxes, fees and other governmental charges in
connection with the execution, delivery and issuance of this Agreement, the
Pooling Agreement, the Cash Collateral Trust Agreement, the Loan Agreement, the
Cash Collateral Account and the Certificates that are required to be paid by
Advanta at or prior to the Closing Date have been paid or will be paid at or
prior to the Closing Date.
(s) Advanta will not apply the proceeds of the sale of the
Certificates pursuant to this Agreement to purchase securities (which term does
not include the Receivables) within the meaning of Regulation T promulgated by
the Federal Reserve Board.
(t) As of the Closing Date, the representations and warranties
of Advanta in the Pooling Agreement will be true and correct.
Any certificate signed by an officer of Advanta and delivered
to the Underwriter or the Underwriter's counsel in connection with an offering
of the Certificates shall be deemed, and shall state that it is, a
representation and warranty as to the matters covered thereby to each person to
whom the representations and warranties in this Section 2 are made.
3. Purchase, Sale, Delivery and Payments. The Underwriter's
commitment to purchase the Certificates pursuant to this Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth. Advanta agrees to instruct the Trustee to issue and agrees to sell to the
Underwriter, and the Underwriter, severally and not jointly, agree, to purchase
from Advanta at the purchase price for the Certificates set forth opposite the
names of the Underwriter on Schedule 1 hereto, the respective principal amount
of Certificates set forth on Schedule 1 hereto. Payment of the purchase price
7
for, and delivery of, any Certificates to be purchased by the Underwriter shall
be made at the office of Xxxxx Xxxxxxxxxx, 1301 Avenue of the Americas, New
York, New York, or at such other place as shall be agreed upon by the
Underwriter and Advanta, at 10:00 a.m. New York City time on ,
199 (the "Closing Date"), or at such other time or date or time as shall be
agreed upon in writing by the Underwriter and Advanta. On the Closing Date,
payment shall be made to Advanta by wire transfer of same day funds payable to
the account of Advanta against delivery to the Trustee as custodian for The
Depository Trust Company ("DTC") of the Certificates in the form of one or more
global securities in definitive form (the "Global Certificates") and registered
in the name of Cede & Co., as nominee for DTC. The Global Certificates will be
made available for checking at Xxxxx Xxxxxxxxxx at least 24 hours prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the
Underwriter propose to offer the Certificates for sale to the public (which may
include selected dealers) as set forth in the Prospectus.
5. Covenants of Advanta. Advanta covenants with the
Underwriter as follows:
(a) To prepare a Prospectus setting forth any price related
information previously omitted from the effective Registration Statement
pursuant to Rule 430A under the Act within the time period prescribed by Rule
430A, and to transmit such Prospectus to the Commission for filing pursuant to
Rule 424(b) under the Act within the prescribed time period, and prior to the
Closing Date to provide evidence satisfactory to the Underwriter of such timely
filing, or to prepare and timely file a post-effective amendment to the
Registration Statement providing such information, which post-effective
amendment shall have been declared effective in accordance with the requirements
of Rule 430A under the Act and to provide evidence satisfactory to the
Underwriter of the effectiveness thereof.
(b) If at any time when the Prospectus as amended or
supplemented is required by the Act to be delivered in connection with sales of
the Certificates by the Underwriter, any event shall occur or condition exist as
a result of which it is necessary, in the opinion of the Underwriter's counsel
or counsel for Advanta, further to amend or supplement the Prospectus as then
amended or supplemented in order that the Prospectus as amended or supplemented
will not 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
circumstances existing at the time it is delivered to a purchaser, not
misleading or if it shall be necessary, in the opinion of any such counsel, at
any such
8
time to amend or supplement the Registration Statement or the Prospectus as then
amended or supplemented in order to comply with the requirements of the Act or
the Rules and Regulations, or if required by such Rules and Regulations,
including Rule 430A thereunder, to file a post-effective amendment to such
Registration Statement (including an amended Prospectus), Advanta will promptly
notify the Underwriter of such event and will prepare and file with the
Commission (subject to the Underwriter's prior review), at its own expense, such
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such requirements,
and within two Business Days will furnish to the Underwriter as many copies of
the Prospectus, as amended or supplemented, as the Underwriter shall reasonably
request. Neither the Underwriter's consent to, nor the Underwriter's delivery
of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 of this Agreement.
(c) Advanta will give the Underwriter reasonable notice of its
intention to file any amendment to the Registration Statement, the Prospectus or
the Prospectus as amended or supplemented, pursuant to the Act, and will furnish
the Underwriter with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any such
amendment or supplement to which the Underwriter or the Underwriter's counsel
shall object.
(d) Advanta will notify the Underwriter immediately, and
confirm the notice in writing, (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or the Prospectus as amended or
supplemented, (iii) of the receipt and contents of any comments from the
Commission with respect to the Registration Statement or the Prospectus or the
Prospectus as amended or supplemented, (iv) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose. Advanta will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(e) Advanta will deliver to the Underwriter as many signed and
as many conformed copies of the Registration Statement (as originally filed) and
of each amendment thereto (including exhibits filed therewith or incorporated by
9
reference therein and documents incorporated by reference in the Prospectus),
each related preliminary prospectus, and so long as delivery of a Prospectus
relating to the Certificates is required to be delivered under the Act in
connection with sales by the Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Underwriter may reasonably request. Advanta will
also furnish to the Underwriter copies of any report on Form SR required by Rule
463 under the Act.
(f) Advanta will make generally available to holders of the
Certificates as soon as practicable, but in any event not later than the
Availability Date (as defined below), earning statements of the Trust (which
need not be audited) complying with Section 11(a) of the Act and the Rules and
Regulations (including Rule 158) and covering a period of at least twelve
consecutive months beginning after the Effective Date which will satisfy the
provisions of Section 11(a) of the Act. For the purposes of the preceding
sentence, the "Availability Date" means the 45th day after the end of the
Trust's fourth fiscal quarter following the fiscal quarter that includes the
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Trust's fiscal year, "Availability Date" means the 90th day after the end
of such fourth fiscal quarter.
(g) Advanta will endeavor, in cooperation with the
Underwriter, to qualify the Certificates for sale and the determination of their
eligibility for investment under the applicable securities laws of such states
and other jurisdictions of the United States as the Underwriter may designate,
and will maintain or cause to be maintained such qualifications in effect for as
long as may be required for the distribution of the Certificates. Advanta will
file or cause the filing of such statements and reports as may be required by
the laws of each jurisdiction in which the Certificates have been qualified as
above provided.
(h) Advanta will not, directly or indirectly, without the
Underwriter's prior consent, publicly offer or sell or contract to sell or
attempt to offer, sell or dispose of any certificates or other similar
securities representing interests in or secured by the Receivables for a period
of 30 days following the commencement of the offering of the Certificates to the
public.
(i) For a period from the date of this agreement until the
retirement of the Certificates, Advanta Financial Services, Inc., as Servicer,
will deliver to the Underwriter, as soon as practicable, copies of each
certificate, report or notice and the annual statements of compliance delivered
by Advanta Financial Services, Inc., as Servicer, to the Trustee
10
pursuant to Section of the Pooling Agreement, the annual statement of a
firm of independent public accountants furnished to the Trustee pursuant to
Section of the Pooling Agreement; and such other information concerning the
Receivables, Advanta Financial Services, Inc. or the Certificates, as the
Underwriter may from time to time reasonably request.
(j) On or before the Closing Date, Advanta shall furnish or
make available to the Underwriter or its counsel such additional documents and
information regarding Advanta Financial Services, Inc. and its affairs as the
Underwriter may from time to time reasonably request, including any and all
documentation reasonably requested in connection with their due diligence
efforts regarding information in the Prospectus and in order to evidence the
accuracy or completeness of any of the conditions contained in this Agreement.
(k) So long as any Note is outstanding, Advanta shall furnish
to the Underwriter by first-class mail as soon as practicable, all documents (A)
distributed, or caused to be distributed, by Advanta to Certificateholders, (B)
filed, or caused to be filed, by Advanta with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (C) any order
of the Commission under the Exchange Act or pursuant to a "no-action" letter
from the staff of the Commission and (D) from time to time, such other
information in the possession of Advanta concerning the Trust as the Underwriter
may reasonably request.
(l) Advanta shall apply the net proceeds from the sale of the
Certificates in the manner set forth in the Prospectus.
(m) If, between the date hereof or, if earlier, the dates as
of which information is given in the Prospectus and the Closing Date, to the
knowledge of Advanta there shall have been any material change, or any
development involving a prospective material change in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of Advanta, Advanta will give prompt written notice thereof to the
Underwriter.
(n) To the extent, if any, that any rating provided with
respect to the Certificates set forth in Section 6(j) hereof is conditional upon
the furnishing of documents reasonably available to Advanta or the taking of any
other reasonable actions by Advanta, Advanta shall furnish such documents or
take any such other actions.
6. Conditions of the Obligations of the Underwriter. The
obligations of the Underwriter to purchase
11
the Certificates pursuant to this Agreement are subject to the accuracy on and
as of the Closing Date of the representations and warranties on the part of
Advanta herein contained, to the accuracy of the statements of officers of
Advanta made pursuant hereto, to the performance by Advanta of all of its
obligations hereunder and to the following conditions at the Closing Date:
(a) The Underwriter shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time is prior to the execution
and delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time is subsequent to the execution and delivery
of this Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the Registration Statement to be filed shortly prior
to the Effective Time), from LLP, in form and substance
satisfactory to the Underwriter and counsel for the Underwriter, confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect that
(i) they have performed certain specified procedures as a result of which they
have determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Trust and Advanta
set forth in the Registration Statement and the Prospectus), agrees with the
accounting records of the Trust and Advanta, excluding any questions of legal
interpretation, and (ii) they have performed certain specified procedures with
respect to the computer programs used to select the Receivables and to generate
information with respect to the Receivables set forth in the Registration
Statement and the Prospectus.
For purposes of this subsection (a), if the Effective Time is
subsequent to the execution and delivery of this Agreement, "Registration
Statement" shall mean the registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly prior to the
Effective Time, and "Prospectus" shall mean the prospectus included in such
Registration Statement. All financial statements included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection (a).
(b) If the Effective Time is not prior to the execution and
delivery of this Agreement, the Effective Time shall have occurred not later
than 10:00 p.m., New York time, on the date of this Agreement or such later date
as shall have been consented to by the Underwriter. If the Effective Time is
prior to the execution and delivery of this Agreement, the Prospectus shall have
been filed with the
12
Commission in accordance with the Rules and Regulations and Section 5(a) of this
Agreement.
(c) The Registration Statement shall have been declared
effective by the Commission and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the Act or proceedings
therefor initiated or threatened by the Commission, any price-related
information previously omitted from the effective Registration Statement
pursuant to Rule 430A under the Act shall have been included in the Prospectus
and transmitted to the Commission for filing pursuant to Rule 424 under the Act
within the prescribed time period, and Advanta shall have provided evidence
satisfactory to the Underwriter of such timely filing, or a post-effective
amendment to the Registration Statement providing such information shall have
been promptly filed with the Commission and declared effective in accordance
with the requirements of Rule 430A under the Act, and prior to the Closing Date,
Advanta shall have provided evidence satisfactory to the Underwriter of such
effectiveness and there shall not have come to the attention of the Underwriter
facts that would cause the Underwriter to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of the Certificates,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
(d) The Underwriter shall have received the favorable opinion,
dated the Closing Date, of , counsel
to Advanta, or other counsel to Advanta, acceptable to the Underwriter and its
counsel, addressed to the Underwriter and in form and scope satisfactory to the
Underwriter's counsel, to the effect that:
i) Advanta has been duly incorporated and is
validly existing as a corporation under the laws of the State of Nevada
and has full corporate power and authority to own its properties and
conduct its business as described in the Prospectus; Advanta has full
corporate power and authority to execute, deliver, and perform its
obligations under this Agreement, the Pooling Agreement, the Loan
Agreement, and the Cash Collateral Trust Agreement and to cause the
Certificates to be issued and to consummate the transactions
contemplated hereby and thereby.
ii) Advanta has duly authorized and executed
this Agreement, the Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement and each such agreement constitutes the
valid, legal
13
and binding obligation of Advanta enforceable against Advanta in
accordance with its terms.
iii) The execution and delivery, and
performance of the Pooling Agreement, the Cash Collateral Trust
Agreement, this Agreement, the transfer of the Receivables to the
Trust, the issuance and sale of the Certificates and consummation of
any other of the transactions contemplated herein or in the Pooling
Agreement do not conflict with or result in a violation of (a) any law
or regulation of the United States of America or the State of New York
or Delaware, (b) the Certificate of Incorporation or By-laws of
Advanta, (c) any order, writ, judgment or decree known to such counsel
to which Advanta is a party or is subject, or (d) result in any lien,
charge or encumbrance upon any of the properties or assets of Advanta.
iv) The Certificates have been duly authorized
and, when executed and authenticated in accordance with the terms of
the Pooling Agreement and delivered to and paid for by the Underwriter
pursuant to this Agreement, will be duly and validly issued and
outstanding and will be entitled to the benefits of the Pooling
Agreement.
v) No consent, approval or authorization of,
or registration, declaration or filing with, any court or governmental
agency or body of the United States of America is required for the
issuance of the Certificates and the sale of the Certificates to the
Underwriter or the consummation of the other transactions contemplated
by this Agreement, the Pooling Agreement, the Loan Agreement, or the
Cash Collateral Trust Agreement except for (x) the filing of a Uniform
Commercial Code financing statement in the State of with
respect to the transfer of the Receivables to the Trust, (y) such as
have been obtained and made under the Act and (z) such as may be
required under
state securities laws.
vi) The Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Prospectus either was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Registration Statement
(as the case may be), and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration
Statement or any part thereof has been instituted or is pending or
contemplated under the Act, and the Registration
14
Statement and the Prospectus, and each amendment or supplement thereof,
as of their respective effective or issue dates, complies as to form in
all material respects with the requirements of the Act and the Rules
and Regulations; such counsel have no reason to believe that the
Registration Statement or any amendment thereto, as of its Effective
Date, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Registration
Statement as of the Closing Date, or the Prospectus, as of its issue
date or as of such Closing Date, contained any 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; it being understood that such
counsel need express no opinion as to the financial statements or other
financial data contained in the Registration Statement or the
Prospectus.
vii) The conditions to the use by Advanta of a
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Registration Statement and the Prospectus. There are no contracts
or documents of Advanta which are required to be filed as exhibits to
the Registration Statement pursuant to the Act or the Rules and
Regulations thereunder which have not been so filed.
viii) There are no actions, proceedings or
investigations pending or threatened before any court, administrative
agency or other tribunal to which Advanta is a named party or to which
its assets are subject (A) asserting the invalidity of the Pooling
Agreement, the Loan Agreement, the Cash Collateral Trust Agreement,
this Agreement or the Certificates, (B) seeking to prevent the issuance
of the Certificates or the consummation by Advanta of any of the
transactions contemplated by the Pooling Agreement, the Loan Agreement,
the Cash Collateral Trust Agreement or this Agreement, (C) that might
adversely affect the validity or enforceability of the Pooling
Agreement, the Loan Agreement, the Cash Collateral Trust Agreement,
this Agreement or the Certificates, or (D) seeking to adversely affect
the federal income tax attributes of the Certificates as described in
the Prospectus under the heading "Certain Federal Income Tax
Consequences."
ix) The Registration Statement at the time it
became effective, and any amendment thereto at the
15
time such amendment became effective, complied as to form in all
material respects with the applicable requirements of the Act and the
Rules and Regulations.
x) The Pooling Agreement is not required to be
qualified under the Trust Indenture Act of 1939, as amended.
xi) The Trust is not required to be registered
under the 1940 Act, and immediately following the issuance and sale of
the Certificates in the manner contemplated by the Pooling Agreement
and this Agreement, the Trust will not be required to be so registered.
xii) The Certificates, this Agreement, the
Pooling Agreement and the Cash Collateral Account conform in all
material respects to the respective descriptions thereof in the
Registration Statement and the Prospectus.
xiii) The statements in the Prospectus under
the heading "Certain Legal Aspects of the Receivables," "SUMMARY OF
TERMS -- Certain Legal Aspects of the Receivables," "SUMMARY OF TERMS
-- Certain Federal Tax Considerations," "Certain Federal Income Tax
Consequences," "ERISA Considerations," and "SPECIAL CONSIDERATIONS --
Certain Legal Aspects," to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been prepared or
reviewed by such counsel and are correct in all material respects.
xiv) No filing or other action, except the
filing of a Uniform Commercial Code financing statement on Form UCC-1
with the [State Department of Assessments and Taxation]
naming Advanta as "debtor" and the Trustee as "secured party," is
necessary to perfect the transfer of the Receivables and proceeds (as
defined in Section 9-306 of the Uniform Commercial Code)
thereof against the claims of creditors of, and transferees from,
Advanta.
xv) The Receivables constitute "chattel paper"
as defined in Section 9-105 of the Uniform Commercial Code as in effect
in the State of .
In addition, such counsel shall state that nothing has come to
their attention that would lead them to believe that the Registration Statement,
at the time it became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not
16
misleading, or that the Prospectus, as of its date and as of the Closing Date,
contains an untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The Underwriter shall have received the favorable opinion
of counsel to the Trustee, dated the Closing Date, addressed to the Underwriter
and in form and scope satisfactory to the Underwriter's counsel, to the effect
that:
i) The Trustee has duly authorized, executed and
delivered the Pooling Agreement and the Cash Collateral Trust
Agreement.
ii) The Trustee has been duly organized and is validly
existing as a in good standing under the laws of
of and has full power and authority
to execute and deliver the Pooling Agreement and the Cash Collateral
Trust Agreement and to perform its obligations thereunder and each such
Agreement constitutes the valid, legal and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its terms.
iii) The Certificates have been duly executed and
countersigned by the Trustee.
iv) The execution and delivery by the Trustee of the
Pooling Agreement and the Cash Collateral Trust Agreement and the
performance by the Trustee of its duties thereunder do not conflict
with or result in a violation of (a) any law or regulation of the
United States of America or the State of , (b) the charter
or by-laws of the Trustee, (c) any order, writ, judgment or decree or
(d) any agreement, instrument, order, writ, judgment or decree known to
such counsel to which the Trustee is a party or is subject.
v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental
agency or body of the United States of America or any state thereof is
required for the execution, delivery or performance by the Trustee of
the Pooling Agreement and the Cash Collateral Trust Agreement.
(f) The Underwriters shall have received the favorable opinion
or opinions, dated the Closing Date, of the Underwriter's counsel, ,
with respect to the issuance and sale of the Certificates, the Registration
17
Statement, this Agreement, the Prospectus and such other related matters as the
Underwriter may require.
(g) The Underwriter shall have received an opinion, dated the
Closing Date, of Xxxxx Xxxxxxxxxx, special counsel to Advanta, addressed to, and
satisfactory to, Standard & Poor's Corporation ("S&P"), Xxxxx'x Investors
Service, Inc. ("Xxxxx'x") and the Underwriter's counsel, relating to the sale of
the Receivables to the Trustee, and such counsel to Advanta shall have consented
to reliance by the Underwriter on such opinion as though such opinion had been
addressed to the Underwriter.
(h) Advanta shall have furnished to the Underwriter a
certificate signed on behalf of Advanta by any two of the chairman of the board,
the president, any vice-chairman of the board, any executive vice president, any
senior vice president, any vice president, the treasurer, or the controller of
the Seller or the Servicer, as appropriate, dated the Closing Date, as to (i)
the accuracy of the representations and warranties of Advanta herein and in the
Pooling Agreement at and as of the Closing Date, (ii) the performance by Advanta
of all of its obligations hereunder to be performed at or prior to the Closing
Date and (iii) such other matters as the Underwriter may reasonably request.
(i) The Trustee shall have furnished to the Underwriter a
certificate of the Trustee, signed by one or more duly authorized officers of
the Trustee, dated the Closing Date, as to the due acceptance of the Pooling
Agreement by the Trustee and the due execution and delivery of the Certificates
by the Trustee thereunder and such other matters as the Underwriter shall
reasonably request.
(j) The Certificates shall have been rated " " by
S&P and " " by Xxxxx'x, and such ratings shall not have been rescinded.
(k) The Underwriter shall have received from
, or other independent certified public
accountants acceptable to the Underwriter, a letter, dated as of the date of the
Closing Date, delivered at such time in form satisfactory to the Underwriter.
(l) Prior to the Closing Date the Underwriter's counsel,
, shall have been furnished with such documents and opinions
as they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Certificates as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by Advanta in connection with the
18
issuance and sale of the Certificates as herein contemplated shall be
satisfactory in form and substance to the Underwriter and .
(m) Since the respective dates as of which information is
given in the Prospectus, there shall not have been any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
Advanta otherwise than as set forth in the Prospectus, the effect of which is in
the Underwriter's judgment so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Certificates on the terms and in the manner contemplated in the Prospectus or
which, in the judgment of the Underwriter, materially impairs the investment
quality of the Certificates or the ability of the Servicer to service the
Receivables.
(n) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, development or event
involving a prospective change, in the condition (financial or other), business,
properties or results of operations of Advanta or its automobile loan business
or the Cash Collateral Depositor which, in the judgment of the Underwriter, is
material and adverse and makes it impracticable or inadvisable to proceed with
the completion of the public offering or the sale of and payment for the
Certificates or (ii) any downgrading in the rating of any securities of Advanta
or the Cash Collateral Depositor 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 securities of Advanta or the Cash Collateral Depositor (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); or (iv) 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 (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, emergency or change in financial markets if, in the
Representative's judgment, the effect of any such outbreak, escalation,
declaration, calamity, emergency or change makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Certificates.
(o) The Cash Collateral Trust Agreement and the Loan Agreement
shall have been duly authorized, executed and delivered by each party thereto;
on or prior to the Closing
19
Date, the Cash Collateral Trustee shall have established the Cash Collateral
Account pursuant to the Cash Collateral Trust Agreement and the Cash Collateral
Depositor and Advanta shall have deposited the Initial Cash Collateral Amount in
the Cash Collateral Account pursuant to the Loan Agreement; and all fees due and
payable to the Cash Collateral Depositor as of the Closing Date shall have been
paid in full by Advanta on or prior to the Closing Date.
(p) The Underwriter shall have received evidence satisfactory
to the Underwriter and its counsel that (i) on or before the Closing Date, UCC-1
financing statements have been filed in the offices of the [State
Department of Assessments and Taxation], reflecting the interest of the Trust in
the Receivables and the proceeds thereof and (ii) the Trust will have a first
priority perfected security interest in the amounts on deposit from time to time
in the Cash Collateral Account.
(q) The Underwriter shall have received an opinion from
counsel for the Cash Collateral Depositor, addressed to the
Underwriter, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriter and its counsel, to the effect that:
i) the Cash Collateral Depositor is a corporation duly
organized and validly existing under the laws of and has the
corporate power and authority under the laws of to execute,
deliver and perform its obligations under the Cash Collateral Trust
Agreement and the Loan Agreement through its New York branch (the
"Branch"), including the obligation of the Cash Collateral Depositor to
deposit the Initial Cash Collateral Amount in the Cash Collateral
Account in accordance with the terms of the Loan Agreement;
ii) each of the Cash Collateral Trust Agreement and
the Loan Agreement have been duly authorized and, when executed and
delivered by the Cash Collateral Depositor through the Branch, each as
the Cash Collateral Trust Agreement and the Loan Agreement, including
the obligation of the Cash Collateral Depositor, acting through the
Branch, to deposit the Initial Cash Collateral Amount in the Cash
Collateral Account in accordance with the terms of the Loan Agreement,
will constitute the valid and legally binding obligation of the Cash
Collateral Depositor enforceable against the Branch in accordance with
its terms subject, as to enforcement, to (A) bankruptcy, insolvency,
reorganization, liquidation, readjustment of debt and other laws and
equitable principles relating to or affecting the enforcement of
creditors'
20
rights generally as they may be applied in the event of the
bankruptcy, insolvency, reorganization, liquidation or readjustment of
debt of, or the appointment of a receiver with respect to the property
of, or a similar event applicable to, the Branch, and (B) the effect of
any moratorium or similar occurrence affecting the Branch;
iii) each of the Cash Collateral Trust Agreement and
the Loan Agreement, including the obligation of the Cash Collateral
Depositor, acting through the Branch, to deposit the Initial Cash
Collateral Amount in the Cash Collateral Account in accordance with the
terms of the Loan Agreement, is enforceable in accordance with its
terms against the Cash Collateral Depositor's head office in
if the Branch defaults in its obligations thereunder, subject, as to
enforcement, to (A) bankruptcy, insolvency, reorganization,
liquidation, readjustment of debt and other laws and equitable
principles relating to or affecting the enforcement of creditors'
rights generally as they may be applied in the event of the bankruptcy,
insolvency, reorganization, liquidation or readjustment of debt of, or
the appointment of a receiver with respect to the property of, or a
similar event applicable to, the Cash Collateral Depositor, and (B) the
effect of any moratorium or similar occurrence affecting the Cash
Collateral Depositor; and
iv) any judgment for a fixed and definite sum of money
rendered by the courts of the State of New York or the United States of
America located in the State of New York, in respect of any suit,
action or other proceeding against the Cash Collateral Depositor for
the enforcement of the Cash Collateral Trust Agreement or the Loan
Agreement will, upon request, be declared valid and enforceable against
the Cash Collateral Depositor by the competent courts of
, usually without re-examination of the matters adjudicated
upon, if such judgment is not subject to appeal and is enforceable
according to the laws of the State of New York or United States Federal
law. However, such judgment will not be enforced if its contents are in
violation of fundamental principles of the legal system
(order public) or if it has been rendered in violation of such
principles. In addition, enforcement may be refused if the foreign
state does not observe reciprocity. According to the approach of
courts, reciprocity is affirmed with regard to judgments
of United States Federal courts and courts of the State of New York. As
a general rule it can be stated that judgments of United States Federal
courts and courts of the State of New
21
York are enforceable in , and such counsel knows of no
reason why such judgments would be a violation of the fundamental
principles of the legal system.
(r) The Underwriter shall have received an opinion from
, special United States counsel for the Cash Collateral
Depositor, addressed to the Underwriter, dated the Closing Date and reasonably
satisfactory in form and substance to the Underwriter and its counsel, to the
effect that:
i) the Cash Collateral Depositor is licensed by the
Superintendent of Banks of the State of New York to maintain a branch
for the conduct of a banking business at ,
ii) no authorization, consent or approval of or by
any governmental authority of the United States or the State of New
York is necessary for the execution, delivery and performance by the
Branch as the Cash Collateral Depositor of the Cash Collateral Trust
Agreement and the Loan Agreement, including the obligation of the Cash
Collateral Depositor, acting through the Branch, to deposit the Initial
Cash Collateral Amount in the Cash Collateral Account in accordance
with the terms of the Loan Agreement, except such authorizations,
consents and approvals as are in full force and effect;
iii) each of the Cash Collateral Trust Agreement and
the Loan Agreement has been duly authorized, executed and delivered by
the Branch; and
iv) each of the Cash Collateral Trust Agreement and
the Loan Agreement, including the obligation of the Cash Collateral
Depositor, acting through the Branch, to deposit the Initial Cash
Collateral Account in the Cash Collateral Account in accordance with
the terms of the Loan Agreement, constitutes the legal, valid and
binding obligation of the Cash Collateral Depositor and the Branch,
enforceable against the Cash Collateral Depositor and the Branch in
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, liquidation,
moratorium, readjustment of debt or other similar laws affecting the
enforcement of creditors' rights generally, as such laws may be applied
in the event of a bankruptcy, insolvency, reorganization, liquidation,
moratorium, readjustment of debt or other similar proceedings of or
affecting the Cash Collateral Depositor or the Branch, and subject to
the application
22
of general principles of equity regardless of whether such
enforceability is considered in a proceeding at law or in equity.
(s) The Underwriter shall have received the favorable opinion
of counsel to the Cash Collateral Trustee, addressed to the Underwriter, dated
the Closing Date and reasonably satisfactory in form and substance to the
Underwriter and its counsel, to the effect that:
i) the Cash Collateral Trustee is an association duly
organized, validly existing and in good standing as a licensed national
banking association under the laws of the United States, and has the
power and authority (corporate and other) to enter into, and to take
all action required of it under the Cash Collateral Trust Agreement and
the Loan Agreement; and
ii) the Cash Collateral Trust Agreement and the Loan
Agreement have each been duly authorized, executed and delivered by the
Cash Collateral Trustee and each constitutes a legal, valid and binding
agreement of the Cash Collateral Trustee, enforceable in accordance
with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, liquidation, reorganization, moratorium or
other similar laws affecting the enforcement of rights of creditors
against the Cash Collateral Trustee generally, and the application of
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(t) The Underwriter shall have received from the Cash
Collateral Trustee a certificate dated the Closing Date of an authorized officer
of the Cash Collateral Trustee reasonably acceptable to the Underwriter in which
such officer shall state that, to the best of such officer's knowledge:
i) the execution and delivery of the Cash Collateral
Trust Agreement and the Loan Agreement by the Cash Collateral Trust and
the performance by the Cash Collateral Trustee of the terms thereof do
not conflict with or result in a violation of (A) the charter or by-
laws of the Cash Collateral Trustee or (B) any law of the United States
of America or the State of New York or any regulation governing the
banking or trust powers of the Cash Collateral Trustee; and
ii) no approval, authorization or other action by, or
filing with, any governmental authority of the
23
United States of America or the State of New York having jurisdiction
over the banking or trust powers of the Cash Collateral Trustee is
required in connection with its execution and delivery of the Cash
Collateral Trust Agreement and the Loan Agreement or the performance by
the Cash Collateral Trustee of the terms of the Cash Collateral Trust
Agreement and the Loan Agreement.
(u) Advanta will provide or cause to be provided to the
Representative such conformed copies of such opinions, certificates, letters and
documents being provided pursuant hereto and such further information,
certificates and documents as the Underwriter may reasonably request. The
Underwriter may in its sole discretion waive compliance with any conditions to
the obligations of the Underwriter hereunder.
If any condition specified in this Section 6 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriter by notice to Advanta at any time at or prior to
the Closing Date, and such termination shall be without liability of any party
to any other party except as provided in Section 7.
7. Payment of Expenses. Advanta agrees to pay all expenses
incident to the performance of its obligations under this Agreement, and will
reimburse the Underwriter (if and to the extent incurred by them) for any filing
fees and other expenses (including fees and disbursements of counsel), including
without limitation those related to (i) the filing of the Registration Statement
and all amendments thereto, (ii) the duplication and delivery to the
Underwriter, in such quantities as the Underwriter may reasonably request, of
copies of this Agreement, (iii) the preparation, issuance and delivery of the
Certificates and the determination of their eligibility for investment under the
laws of such jurisdictions as the Underwriter designates, (iv) the fees and
disbursements of
, counsel for Advanta, 50% of the fees of
, special counsel for Advanta, and the fees and disbursements
of , accountants of Advanta, (v) the qualification of the
Certificates under securities and Blue Sky laws and the determination of the
eligibility of the Certificates for investment in accordance with the provisions
of Section 5(g), including filing fees and disbursements and the fees of
, the Underwriter's counsel, in connection therewith and in
connection with the preparation of any Blue Sky Survey, (vi) the printing and
delivery to the Underwriter, in such quantities as the Underwriter may
reasonably request, hereinabove stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey, (vii) for
24
the filing fee of the National Association of Securities Dealers, Inc., (viii)
the duplication and delivery to the Underwriter in such quantities as the
Underwriter may reasonably request, of copies of the Pooling Agreement and the
Collateral Trust Agreement, (ix) the fees charged by nationally recognized
statistical rating agencies for rating the Certificates, (x) the fees and
expenses of the Trustee and its counsel, (xi) the fees and expenses of the Cash
Collateral Trustee and its counsel, (xii) the fees and expenses of the Cash
Collateral Depositor and its counsel.
8. Indemnification. Advanta agrees to indemnify and hold
harmless the Underwriter and each person, if any, who controls the Underwriter
within the meaning of the Act or the Exchange Act, as follows:
(a) Advanta will indemnify and hold harmless the Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter 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 any related preliminary prospectus, 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 (in the case of the Prospectus or any amendment or
supplement thereto, in the light of the circumstances under which they were
made) and will reimburse the Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that Advanta 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 by the Underwriter specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below.
(b) The Underwriter will indemnify and hold harmless Advanta
against any losses, claims, damages or liabilities to which Advanta 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
25
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, 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 the case
of the Prospectus, in the light of the circumstances under which they were
made), 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
by the Underwriter specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by Advanta in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses
are incurred, it being understood and agreed that the only such information
furnished by the Underwriter consists of (i) the following information in the
Prospectus furnished on behalf of the Underwriter: [the last paragraph at the
bottom of the cover page concerning the terms of the offering by the
Underwriter, the legend concerning overallotments and stabilizing on the inside
front cover page and the concession and reallowance figures appearing in the
third paragraph under the caption "Underwriting."]
(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
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. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such
26
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
9. Contribution. (a) If the indemnification provided for in
Section 8 is unavailable or insufficient to hold harmless an indemnified party
under subsection (a) or (b) of Section 8 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 such
subsection (a) or (b) (i) in such proportion as is appropriate to reflect the
relative benefits received by Advanta on the one hand and the Underwriter on the
other from the offering of the Certificates 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 on the one hand and the Underwriter
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 on the one
hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by Advanta bear to the total underwriting discounts and
commissions received by the Underwriter. 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 or the Underwriter and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this Section 9 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this Section 9. 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.
(b) The obligations of Advanta under this Section 9 shall be
in addition to any liability which Advanta may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 9 shall be in addition to any liability which the
Underwriter may
27
otherwise have and shall extend, upon the same terms and conditions, to each
director of Advanta, to each officer of Advanta who has signed the Registration
Statement and to each person, if any, who controls Advanta within the meaning of
the Act.
The Underwriter, with respect to the Certificates, agrees that
it will not prepare or distribute to any proposed purchaser of any Certificates
any Derived Information (as such term is hereinafter defined), unless it shall
have provided to the Servicer a copy of such Derived Information a sufficient
time prior to its proposed distribution to permit the Servicer to review and
comment upon such Derived Information, and the Underwriter shall have obtained
the prior written consent of the Servicer thereto following its review. In
addition, the Underwriter agrees to provide the Servicer, no later than the date
on which the Prospectus is required to be filed pursuant to Rule 424, with a
definitive copy of its Derived Information with respect to such Certificates
provided by the Underwriter for filing with the Commission on Form 8-K.
The Underwriter agrees, assuming all Companies-Provided
Information (as such term is hereinafter defined) provided by Advanta is
accurate and complete in all material respects, to indemnify and hold harmless
Advanta, each of Advanta's officers and directors and each person who controls
Advanta within the meaning 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 Derived Information 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 him, her or it in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of the Underwriter under this Section 8 shall be in addition to any
liability which the Underwriter may otherwise have.
For purposes of this Section 9, the term "Derived Information"
means such portion, if any, of the information delivered to Advanta for filing
with the Commission on Form 8-K as:
i) is not contained in the Prospectus without taking
into account information incorporated therein by
28
reference;
ii) does not constitute Companies-Provided
Information; and
iii) is not information provided by the Cash
Collateral Depositor or the Cash Collateral Trustee.
"Companies-Provided Information" means any computer tape furnished to the
Underwriter by Advanta concerning the Receivables assigned to the Trust.
Notwithstanding the provisions of Sections 8 and 9, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Certificates underwritten by the
Underwriter and distributed to the public were offered to the public exceeds the
amount of any damages which the Underwriter has otherwise been required to pay
in respect of such losses, liabilities, claims, damages and expenses. For
purposes of this Section 9, each person, if any, who controls the Underwriter
within the meaning of the Act or the Exchange Act shall have the same rights to
contribution as the Underwriter and each director of Advanta, each officer of
Advanta who signed the Registration Statement, and each person, if any, who
controls Advanta within the meaning of the Act or the Exchange Act shall have
the same rights to contribution as Advanta.
10. Default of Underwriter. If the Underwriter defaults in its
obligations to purchase Certificates hereunder on the Closing Date and the
aggregate principal amount of Certificates that such defaulting Underwriter has
agreed but failed to purchase does not exceed 10% of the total principal amount
of Certificates that the Underwriter is obligated to purchase on such Closing
Date, the Underwriter may make arrangements satisfactory to Advanta for the
purchase of such Certificates by other persons. If the Underwriter so defaults
and the aggregate principal amount of Certificates with respect to which such
default occurs exceeds % of the total principal amount of Certificates
that the Underwriter is obligated to purchase on such Closing Date and
arrangements satisfactory to Advanta for the purchase of such Certificates by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of Advanta, except as provided in
Section 11. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements,
29
representations, warranties and other statements of Advanta or its officers and
of the Underwriter set forth in or made pursuant to this 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 Underwriter, Advanta or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Certificates. If this
Agreement is terminated or if for any reason the purchase of the Certificates by
the Underwriter is not consummated, Advanta shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 7 and the respective
obligations of Advanta and the Underwriter pursuant to Section 8 and 9 shall
remain in effect, and if any Certificates have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 5
and 6 shall also remain in effect. If the purchase of the Certificates by the
Underwriter is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 10 or the occurrence of any
event specified in clause (ii), (iv) or (v) of Section 6(n), Advanta will
reimburse the Underwriter for all out-of-pocket expenses (including fees and
disbursements of , Underwriter's counsel) reasonably
incurred by them in connection with the offering of the Certificates.
12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriter shall be directed to the address set forth on the first page hereof,
or sent by facsimile machine which produces an electronic confirmation of
receipt to 212/318-0532, attention: Investment Banking Department, Transactions
Advisory Group. Notices to Advanta shall be directed to Advanta Receivables
Finance Corporation 199 - 000 Xxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, or sent by facsimile machine which produces an electronic
confirmation of receipt to , attention: .
13. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriter and Advanta, and their respective successors.
Nothing expressed or mentioned in this Agreement is intended nor shall it be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the
30
sole and exclusive benefit of the parties and their respective successors and
such controlling persons and officers and directors and their heirs and legal
representatives (to the extent of their rights as specified herein and therein)
and except as provided above for the benefit of no other person, firm or
corporation. No purchaser of Certificates from the Underwriter shall be deemed
to be a successor by reason merely of such purchase.
14. GOVERNING LAW AND TIME; CONSENT TO JURISDICTION. THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE
CONSTRUED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS. ADVANTA HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL
AND STATE COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but together they
shall constitute but one instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and Advanta in accordance with its terms.
Very truly yours,
ADVANTA AUTO FINANCE CORPORATION
By:
-------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
---------------------------,
as the Underwriter.
31
By:
--------------------------------
Name:
Title:
32
Schedule 1
Underwriting
Class -
Proceeds to
Purchase Advanta
Price Principal (includes accrued Accrued
Underwriters Percentage Amount interest) Interest
------------ ---------- --------- --------------------- --------------
% $ $
