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EXHIBIT 1.1
Advanta Business Services Cop.
$___________ Class A Asset Backed
Notes, Series 199_-
Advanta Business Services Cop.
(as Servicer)
Advanta Leasing Receivables Corp III
(as Obligor's Agent
UNDERWRITING AGREEMENT
as Representative of the
Underwriters set forth herein
Ladies and Gentlemen:
1. Introductory. Advanta Business Services ("ABS") proposes to cause the
$___________ aggregate principal amount of Class A Asset Backed Notes, [Series
199-] (the "Class A Notes") and the $__________ aggregate principal amount of
Class B Asset Backed Notes, Series [1996- ] (the "Class B Notes", and together
with the Class A Notes, the "Notes") to be issued under a Master Business
Receivables Asset-Backed Financing Facility Agreement, amoung ABS, as Servicer,
Advanta Leasing Receivables Corp. III ("ALRCIII") as the Obligor's Agent and The
Chase Manhattan Bank, as Trustee (the "Trustee"), dated as of May 1, 1997
ABS hereby agrees with [underwriter names] as follows:
2. Representations and Warranties of ABS. ABS represents and warrants
to, and agrees with, the Underwriters that:
(a) ABS 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 Agreement, the Class B
Underwriting Agreement, the Notes and each of the [list of additional deal
documents]([ ], together, the "Transaction Documents").
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(b) The execution and delivery of this Agreement, the Class B
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 ABS by all necessary action on the part of ABS.
(c) This Agreement and the Class B Underwriting Agreement have
been duly authorized and validly executed and delivered by ABS.
(d) Each of the Transaction Documents will be executed and
delivered by ABS on or before the Closing Date, and when executed and delivered
by the other parties thereto, will constitute a valid and binding agreement of
ABS, enforceable against ABS in accordance with its terms, except to the extent
that (i) the enforceability thereof may be subject to insolvency,
reorganization, moratorium, receivership or other similar laws now or hereafter
in effect relating to creditors' or other obligees' rights generally or the
rights of creditors or other obligees insured by the FDIC, (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 Master Facility Agreement may be unenforceable in whole or in part under the
UCC, but the inclusion of such provisions does not render the other provisions
of the Master Facility Agreement invalid and, notwithstanding that such
provisions may be unenforceable in whole or in part, the Trustee, on behalf of
the Holders of the Notes, 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 Agreement and, when executed by ABS and authenticated by the Trustee
in accordance with the Master Facility Agreement and delivered pursuant to this
Agreement and the Class B Underwriting Agreement, will be validly issued and
outstanding and entitled to the benefits of the Indenture Agreement. The Notes
will be in all material respects in the form contemplated by the Indenture
Agreement and will conform to the description thereof contained in the
Prospectus and Registration Statement, as amended or supplemented.
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(f) ABS 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 ABS or the Trust.
(g) Neither the issuance and sale of the Notes, nor the execution
and delivery by ABS of this Agreement, the Class B Underwriting Agreement, the
Notes or the Transaction Documents, nor the incurrence by ABS 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 Master
Facility Agreement.
(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 ABS of this Agreement, the Class B
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 ABS as a condition to the
offer and sale of the Notes as described herein or in the Class B Underwriting
Agreement 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.
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(j) The Master Facility Agreement is not required to be qualified
under the Trust Indenture Act of 1939.
(k) The representations and warranties made by ABS in the Master
Facility Agreement and made in any Officer's Certificate of ABS delivered
pursuant to the Master Facility Agreement will be true and correct at the time
made and on and as of the Closing Date as if set forth herein.
(l) ABS 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 Receivables,
except as provided in the Master Facility Agreement, and agrees to take all
action required by the Master Facility Agreement in order to maintain the
security interest in the Receivables granted pursuant to the Master Facility
Agreement.
(m) A registration statement on Form S-3 (No. ), including a form
of prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Notes and the offering thereof in accordance with Rule
415 under 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 this Agreement, the most recent such amendment has been declared effective by
the Commission. For purposes of this 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 "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." ABS propose 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 Notes and the method of distribution thereof. The Base Prospectus and the
Prospectus Supplement, together with
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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 this 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 ABS 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 ABS or its
subsidiaries, taken as a whole, from ____________.
3. Purchase, Sale, Payment and Delivery of the Notes.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, ABS agree to sell to the Underwriters, and the Underwriters agree to
purchase from ABS, at a purchase price of ________% of the principal amount
thereof, $___________ aggregate principal amount of the Class A Notes, each
Underwriter to purchase the amounts shown on Schedule A hereto.
(b) ABS will deliver the Class A Notes to you against payment of
the purchase price in immediately available funds, drawn to the order of ABS, at
the office of [law firm address], in Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New
York City time, on 1997, or at such other time not later than seven full
business
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days thereafter as you and ABS determine, such time being herein referred to as
the "Closing Date". Each of the Class A Notes so to be delivered shall be
represented by one or more definitive Notes registered in the name of Cede &
Co., as nominee for The Depository Trust Company. ABS shall make such definitive
Notes representing the Class A Notes available for inspection by the
Underwriters at the office at which the Class A 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.
4. Offering by Underwriters. It is understood that after the Effective
Date, the Underwriters propose to offer the Class A Notes for sale to the public
(which may include selected dealers) as set forth in the Prospectus.
5. Certain Agreements of ABS. ABS agrees with the Underwriters that:
(a) Immediately following the execution of this Agreement, ABS
will prepare a Prospectus Supplement setting forth the amount of Notes covered
thereby and the terms thereof not otherwise specified in the Base Prospectus,
the price at which such Notes are to be purchased by the Underwriters and the
Class B Underwriter, the initial public offering price, the selling concessions
and allowances, and such other information as ABS deem appropriate. ABS will
transmit the Prospectus, including such Prospectus Supplement, to the Commission
pursuant to Rule 424(b) by a means reasonably calculated to result in filing
with the Commission pursuant to Rule 424(b). ABS will not file any amendment of
the Registration Statement with respect to the Class A 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. ABS 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 ABS of any notification with
respect to the suspension of qualification of the 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
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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 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, ABS 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, ABS will cause the Trust to make
generally available to the Noteholders an earnings statement or statements of
the Trust 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) ABS 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) ABS will endeavor to qualify the Class A 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 Class A
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 Class A Notes; provided, however, that neither ABS nor ALRCIII shall be
obligated to qualify to do business in any jurisdiction where such qualification
would subject ABS, as the case may be, to general or unlimited service of
process in any jurisdiction where it is not now so subject.
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(f) For a period from the date of this Agreement until the
retirement of the Class A Notes, ABS, as Servicer, will furnish to you copies of
each certificate and the annual statements of compliance delivered to the
Trustee pursuant to Article III of the Master Facility Agreement and the annual
independent certified public accountant's servicing reports furnished to the
Trustee pursuant to Article III of the Master Facility Agreement, by first class
mail as soon as practicable after such Notes, statements and reports are
furnished to the Trustee.
(g) So long as any Class A Certificate is outstanding, ABS will
furnish to you, by first-class mail as soon as practicable (i) all documents
concerning the Notes distributed by ABS 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 applicable to the Trust or to ABS as originators of the Trust, or pursuant
to a "no-action" letter obtained from the staff of the Commission by ABS and
affecting the Trust or ABS as originators of the Trust and (iii) from time to
time, such other information concerning the Trust as you may reasonably request.
(h) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated for any reason, except
a default by you hereunder, ABS will pay all expenses incident to the
performance of their obligations under this Agreement and will reimburse the
Underwriters for any expenses provided that if ABS shall pay such fees and
disbursements of counsel or such printing costs and expenses, incurred by them
in connection with qualification of the Class A Notes for sale and determination
of the eligibility of the Class A Notes for investment under the laws of such
jurisdictions as you designate (other than any expenses relating to the
jurisdictions of Connecticut, Illinois, Indiana, Louisiana, Massachusetts,
Michigan, Missouri, New Jersey, Ohio and Pennsylvania) and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Class A Notes, for any filing fee of the National
Association of Securities Dealers, Inc. relating to the Class A Notes, and for
expenses incurred in distributing the Prospectus (including any amendments and
supplements thereto).
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(i) To the extent, if any, that any of the ratings provided with
respect to the Notes by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Services are conditional upon the furnishing of documents or the taking
of any other actions by ABS, ABS 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 Class A Notes will be subject to
the accuracy of the representations and warranties on the part of ABS herein, to
the accuracy of the statements of officers of ABS made pursuant to the
provisions hereof, to the performance by ABS of its obligations hereunder and to
the following additional conditions precedent:
(a) On or prior to the date of this Agreement, you shall have
received a letter, dated the date of this Agreement, of Xxxxxx Xxxxxxxx, LLP,
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.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this Agreement;
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 ABS or you, shall be
contemplated by the Commission.
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(c) Subsequent to the execution and delivery of this 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
ABS or Advanta Corp. which, in your judgment, materially impairs the investment
quality of the Notes; (ii) any downgrading in the rating of any debt securities
of ABS 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 ABS 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 Class A Notes.
(d) You shall have received an opinion, dated the Closing Date,
of Xxxx Silver, General Counsel for ABS, to the effect that:
(i) ABS (x) has been duly chartered and is validly
existing as a national banking association under the laws of the United
States, with power and authority to own its properties and conduct its
business as described in the Prospectus; (y) is neither required to
qualify, nor to register as a foreign corporation, in any state in order
to conduct its credit card business, except where the failure to so
qualify or register would not have a material adverse effect upon the
Certificateholders; and (z) has the power, authority and legal right to
acquire, own and service the Accounts and the Receivables;
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(ii) ABS has the power and authority to execute and
deliver this Agreement, the Class B Underwriting Agreement, the Master
Facility Agreement and the Notes and to consummate the transactions
contemplated herein and therein;
(iii) Each of the Class B Underwriting Agreement, the
Master Facility Agreement and the Notes has been duly authorized,
executed and delivered by ABS;
(iv) This Agreement has been duly authorized, executed and
delivered by ABS;
(v) The Registration Statement has become effective under
the Act and to the best of such counsel's knowledge no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened under the Act; the Registration Statement, the Prospectus and
each amendment thereof or supplement thereto (other than the financial
and statistical information contained therein) on their respective
effective dates or dates of issuance appear on their face to be
appropriately responsive in all material respects to the applicable
requirements of the Act and the Rules and Regulations; such counsel has
no reason to believe that either the Registration Statement or the
Prospectus, or any such amendment or supplement, as of such respective
dates, 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 Prospectus, as
amended or supplemented as of the date of such opinion, contains any
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (except that such counsel may express no opinion as to (y)
any financial statements, schedules or other financial data included in
the Registration Statement, the Prospectus, or any such amendment or
supplement, or (z) the exhibits to the Registration Statement); and the
summaries in the Registration Statement and Prospectus of statutes,
legal proceedings, contracts and other documents are accurate and fairly
present the information required to be shown;
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(vi) No consent, approval, authorization or order of, or
filing of UCC financing statements with any court or governmental agency
or body having jurisdiction over ABS is required for the consummation of
the transactions contemplated by this Agreement, the Class B
Underwriting Agreement, the Master Facility Agreement except for (x)
filing of UCC financing statements with respect to the transactions
contemplated in the Master Facility Agreement; (y) such consents,
approvals, authorizations, orders or filings as have been obtained under
the Act; and (z) such consents, approvals, authorizations, orders or
filings as may be required under blue sky laws of any jurisdiction;
(vii) The execution, delivery and performance by ABS of
this Agreement, the Class B Underwriting Agreement, the Master Facility
Agreement, the transfer of the Receivables to the Trust, the issuance
and sale of the Notes and the consummation of any other of the
transactions contemplated herein or in the Master Facility Agreement
will not conflict with, result in a breach of or a violation of any of
the terms of, or constitute a default under, (x) the Articles of
Association or By-Laws of ABS or (y) any rule, order, statute or
regulation known to such counsel to be currently applicable to ABS, or
(z) any agreement or other instrument, known to such counsel, to which
ABS is a party or by which it is bound; and
(viii) To such counsel's knowledge, there are no actions,
proceedings or investigations pending before any court, administrative
agency or other tribunal (w) asserting the invalidity of this Agreement,
the Class B Underwriting Agreement, the Master Facility Agreement or the
Notes, (x) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this Agreement,
the Class B Underwriting Agreement, the Master Facility Agreement (y)
which might materially and adversely affect the performance by ABS of
its obligations under, or the validity or enforceability of, this
Agreement, the Class B Underwriting Agreement, the Master Facility
Agreement or the Notes or (z) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Prospectus under
the headings "Summary of Terms -- Tax Status" and "Certain Federal
Income Tax Consequences."
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(f) You shall have received a letter of [ ], special counsel for
ABS, to the effect that you may rely on those provisions of their opinions to
Xxxxx'x Investors Service, Inc. and Standard & Poor's Ratings Services with
respect to certain matters relating to the transfer of the Receivables to the
Trust, with respect to the perfection of the Trust's interest in the Receivables
and with respect to other related matters.
(g) You shall have received an opinion dated the closing date, of
[ ]special counsel to ABS, to the effect that
(i) Each of this Agreement and the Class B Underwriting
Agreement constitutes the legal, valid and binding obligation of ABS
under the laws of the State of New York, enforceable against ABS in
accordance with its terms.
(ii) The Notes, when executed and authenticated in
accordance with the terms of the Master Facility Agreement and delivered
to and paid for by the Underwriters in accordance with this Agreement,
will be duly and validly issued and outstanding and will be entitled to
the benefits of the Master Facility Agreement.
(iii) The statements in the Base Prospectus under the
headings "Certain Legal Aspects of the Receivables," "ERISA
Considerations" and "Certain Federal Income Tax Consequences" and the
summaries thereof under the headings "Summary of Terms -- Tax Status" in
the Base Prospectus and "Summary of Terms -- Tax Status" and "Certain
Federal Income Tax Consequences" in the Prospectus Supplement, to the
extent they constitute matters of law or legal conclusions with respect
thereto, have been reviewed by us and are correct in all material
respects.
(iv) This Agreement, the Master Facility Agreement and the
Notes conform in all material respects to the descriptions thereof
contained in the Prospectus.
(vii) For federal income tax purposes the Notes will
properly be characterized as indebtedness and for purposes of Section
6.03(b)(vi) of the Master Facility
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Agreement (a) the issuance of the Notes will not adversely affect the
tax characterization as debt of Investor Notes of any outstanding Series
or Class that were characterized as debt at the time of their issuance,
(b) following the issuance of the Notes, the Trust will not be an
association (or publicly traded partnership) taxable as a corporation
and (c) the issuance of the Notes will not cause or constitute an event
in which gain or loss would be recognized by any Noteholder or the
Trust. Although the foregoing represents our views regarding the
characteristics of the Trust and the Notes for federal income tax
purposes, we call your attention to the discussion of alternative
characterizations and risks discussed in the Base Prospectus under the
heading "Certain Federal Income Tax Consequences."
(h) You shall have received from [ ] special counsel for the
Underwriter, such opinion or opinions, dated the Closing Date, with respect to
such matters relating to this transaction as you may require, and ABS shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(i) You shall have received a certificate from ABS, dated the
Closing Date, of two Vice Presidents or more senior officers in which such
officers, to the best of their knowledge after reasonable investigation, shall
state that (u) the representations and warranties of ABS in this Agreement are
true and correct in all material respects on and as of the Closing Date, (v) ABS
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, (w) the
representations and warranties of ABS, as Servicer, and ALRCIII, as Obligor's
Agent, in the Master Facility Agreement are true and correct as of the dates
specified in the Master Facility Agreement, (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 officers' attention that would lead such officers 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
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the Prospectus, there has been no material adverse change in the financial
position or results of operation of ABS or ALRCIII business except as set forth
in or contemplated by the Prospectus or as described in such certificate.
(j) 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 has been duly incorporated and is validly
existing as a banking corporation under the laws of the State of New
York and has the power and authority to enter into and to perform all
actions required of it under the Master Facility Agreement;
(ii) Each of the Master Facility has been duly authorized,
executed and delivered by the Trustee and constitutes a legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, except as such enforceability may be limited
by (y) bankruptcy, insolvency, liquidation, reorganization, moratorium
or other similar laws affecting the enforcement of creditors' rights in
general, as such laws would apply in the event of a bankruptcy,
insolvency, liquidation, reorganization, moratorium or similar
occurrence affecting the Trustee, and (z) general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law);
(iii) The Notes have been duly authenticated and delivered
by the Trustee;
(iv) The execution and delivery of the Master Facility
Agreement by the Trustee and the performance by the Trustee of their
terms does not conflict with or result in a violation of (y) any law or
regulation of the United States of America or the State of New York
governing trust powers of the Trustee, or (z) the Certificate of
Incorporation or By-Laws of the Trustee; and
(v) No approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having
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jurisdiction over ABSing or trust powers of the Trustee is required in
connection with the execution and delivery by the Trustee of the Master
Facility Agreement or the performance by the Trustee thereunder.
(k) You shall have received evidence satisfactory to you that the
Class A Notes shall be rated Aaa by Xxxxx'x Investors Service, Inc. and AAA by
Standard & Poor's Ratings Services and that the Class B Notes shall be rated no
lower that A3 by Xxxxx'x Investors Service, Inc. and no lower than A- by
Standard & Poor's Ratings Services.
ABS will furnish you with such conformed copies of such opinions,
Notes, letters and documents as you reasonably request.
7. Indemnification and Contribution. (a) ABS 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 Class A 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 ABS
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 Class A Notes to such person; provided further, however, that ABS
will not be liable in any such case to the extent that any such loss, claim,
damage or
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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 ABS by the
Underwriters specifically for use therein.
(b) The Underwriters agree ,severally and not jointly, to
indemnify and hold harmless ABS against any losses, claims, damages or
liabilities to which ABS may become subject, under the Act or otherwise and will
reimburse any legal or other expenses reasonably incurred by ABS in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are 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 ABS by the Underwriters specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
ABS 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
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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.
(d) 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
ABS on the one hand and the Underwriters on the other from the offering of the
Class A 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 ABS 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 ABS 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 Class A Notes received by
ABS bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Class A 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 ABS 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
Class A Notes. 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
subsection (d) 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 (d). Notwithstanding the
provisions of this subdivision (d), the Underwriters shall not be
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required to contribute any amount in excess of the amount by which the total
price at which the Class A 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 Class A 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.
(e) The obligations of ABS under this Section shall be in
addition to any liability which ABS 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 ABS, to each officer of ABS who has signed the
Registration Statement and to each person, if any, who controls either Bank
within the meaning of the Act.
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8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of ABS
or their officers and of the Underwriters 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
Underwriters, ABS or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Class A Notes. If this Agreement is terminated or if for any reason
other than default by the Underwriters the purchase of the Class A Notes by the
Underwriters is not consummated, ABS shall remain responsible for the expenses
to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of ABS and the Underwriters pursuant to Section 7 shall remain in
effect. If for any reason the purchase of the Class A 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), ABS will reimburse the
Underwriters for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel and reasonable costs and expenses of printing to the
extent set forth in Section 5(h)) reasonably incurred by them in connection with
the offering of the Class A Notes.
9. Computational Materials and ABS Term Sheets. (a) Each Underwriter
agrees to provide to ABS, not less than two Business Days prior to the date on
which ABS are required to file the Prospectus Supplement pursuant to Rule
424(b), any information used by it (in such written or electronic format as
required by ABS) with respect to the offering of the Class A 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, 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 ABS, not less than two
Business Days prior to the date on which ABS is
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required to file the Prospectus Supplement pursuant to Rule 424(b), any
information used by it (in such written or electronic format as required by ABS)
with respect to the offering of the Class A 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 ABS is accurate and complete in all material respects, to indemnify
and hold harmless ABS, each of the officers and directors of ABS and each person
who controls ABS 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(c) and 7(d) 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:[undrewriter]
11. Counterparts. This 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.
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12. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13. Financial Services Act. Each Underwriter represents and warrants to,
and agrees with, ABS that (w) it has complied and shall 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 Class A Notes in, from or otherwise involving the
United Kingdom; (x) it has only issued or passed on and shall only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Class A Notes to a person who is of a kind described in Article
9(3) of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1995 or who is a person to whom the document may otherwise lawfully be
issued or passed on; (y) it has not offered or sold and, during the period of
six months from the date hereof, will not offer or sell any Class A Certificate
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing, or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Regulations.
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If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to ABS whereupon this letter and your acceptance shall
become a binding agreement among ABS and the Underwriters.
Very truly yours,
ADVANTA BUSINESS SERVICES CORP.
By____________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
as Representative of the
Underwriters set forth herein
By__________________________
Name:
Title:
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SCHEDULE A
Class A Notes
Underwriters Principal Amount of
------------
Class A Notes
-------------
$-----------
$-----------
$-----------
$-----------
$-----------
24
