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EXHIBIT 1.1
EXECUTION COPY
ADVANTA EQUIPMENT RECEIVABLES SERIES 2000-1 LLC
EQUIPMENT RECEIVABLES ASSET-BACKED NOTES, SERIES 2000-1
$181,285,000 6.840% CLASS A-1 NOTES
$ 63,269,000 7.255% CLASS A-2 NOTES
$ 84,623,000 7.405% CLASS A-3 NOTES
$ 28,215,000 7.560% CLASS B NOTES
$ 18,810,000 7.685% CLASS C NOTES
$ 9,405,000 8.015% CLASS D NOTES
UNDERWRITING AGREEMENT
March 17, 2000
PRUDENTIAL SECURITIES INCORPORATED
as Representative of the several Underwriters
One New York Plaza
New York, New York 10292
Ladies and Gentlemen:
1. Introductory. Advanta Equipment Receivables Series 2000-1 LLC, a
Nevada limited liability company (the "Company"), and Advanta Bank Corp., a Utah
industrial loan corporation ("Advanta"), propose, subject to the terms and
conditions stated herein, to sell to the Underwriters named in Schedule A hereto
(the "Underwriters"), for whom Prudential Securities Incorporated is acting as
representative (the "Representative") an aggregate of $181,285,000 principal
amount of the 6.840% Class A-1 Notes, $63,269,000 principal amount of the 7.255%
Class A-2 Notes, $84,623,000 principal amount of the 7.405% Class A-3 Notes,
$28,215,000 principal amount of the 7.560% Class B Notes, $18,810,000 principal
amount of the 7.685% Class C Notes, and $9,405,000 principal amount of the
8.015% Class D Notes (collectively, the "Offered Securities"), of the Company.
The Offered Securities will be issued under an Indenture (the "Indenture") dated
as of March 1, 2000 between the Company and Bankers Trust Company, as trustee
(the "Trustee").
The Company has previously purchased or will purchase or has previously
received a contribution or shall receive a contribution of the Contracts on or
before the Time of Delivery (each as defined below) and certain interests in the
equipment related to the Contracts (the "Equipment") from Advanta pursuant to
the Transfer and Servicing Agreement, (the "Transfer Agreement") dated as of
March 1, 2000 by and between Advanta and the Company.
The Company will acquire a pool of equipment leases (each a "Lease
Contract") and installment sale contracts, promissory notes, loan and security
agreements and similar types of
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receivables (each a "Loan Contract," and collectively with the Lease
Contracts, the "Contracts"), the security interest of Advanta in Equipment
securing the Loan Contracts, the security interest, if any, in Advanta's
interest in the Equipment related to the Lease Contracts and certain other
rights pursuant to the Transfer Agreement, pursuant to which Advanta has agreed
to service the Contracts. As used herein, the term "Transaction Documents" means
the Indenture, the Offered Securities, the Transfer Agreement and the Letter of
Representations among the Company, the Trustee and The Depository Trust Company.
Capitalized terms used herein without definition shall have the
meanings set forth in the Indenture or the Transfer Agreement.
2. Representations and Warranties of the Company and Advanta. Each of
the Company and Advanta, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
(a) Advanta and the Offered Securities meet the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the "Act");
Advanta has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-93915),
including a representative form of prospectus supplement and the
related preliminary prospectus or prospectuses, relating to the Offered
Securities and the offering thereof from time to time in accordance
with Rule 415 under the Act. Such registration statement, as amended,
has been declared effective by the Commission, and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Company will prepare and file with the
Commission a prospectus supplement (together with any later dated
prospectus supplement relating to the Offered Securities, the
"Prospectus Supplement") specifically relating to the Offered
Securities pursuant to Rule 424 under the Act. The registration
statement as amended at the date hereof is hereinafter referred to as
the "Registration Statement." The term "Base Prospectus" means the
prospectus dated March 13, 2000 filed pursuant to Rule 424(b) under the
Act relating to all offerings of securities under the Registration
Statement. The term "Prospectus" means the Base Prospectus together
with the Prospectus Supplement. The term "Preliminary Prospectus" means
any preliminary prospectus supplement specifically relating to the
Offered Securities, together with the Base Prospectus. As used herein,
the terms "Registration Statement," "Prospectus," "Base Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if
any, incorporated by reference therein (but not including any
Computational Materials, ABS Term Sheets or Collateral Term Sheets
described in Section 5A of this Agreement). If the Company has filed an
abbreviated registration statement to register additional debt
securities pursuant to Rule 462(b) under the Act (the "Rule 462(b)
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. For purposes of this Agreement, all references
to the Registration Statement, any Preliminary Prospectus or the
Prospectus or any amendment or supplement to any of the foregoing shall
be deemed to include the electronically transmitted copy thereof filed
with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("XXXXX"). All references in this Agreement to
financial
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statements and schedules and other information that is "contained,"
"included" or "stated" in the Registration Statement, any Preliminary
Prospectus or the Prospectus (or other references of like import) shall
be deemed to mean and include all such financial statements and
schedules and other information that is incorporated by reference in
the Registration Statement, any Preliminary Prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to mean and
include the filing of any document with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), that
is incorporated by reference in the Registration Statement, such
Preliminary Prospectus or the Prospectus, as the case may be;
(b) No stop order preventing or suspending the effectiveness or use of
the Registration Statement or the Prospectus has been issued by the
Commission and no proceeding for that purpose has been initiated or, to
the knowledge of the Company or Advanta, threatened by the Commission.
The Registration Statement conforms, and the Prospectus and any further
amendments to supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act, and the rules and regulations of the Commission thereunder,
and did not and will not contain an untrue statement of a material fact
or omit to state 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
following information in the Prospectus Supplement furnished on behalf
of such Underwriter: on the cover page the price to public per note and
the total price to the public, the information in each of the tables
under the caption "Underwriting", the concession and reallowance
figures appearing in the second paragraph under the caption
"Underwriting", the information contained in the fourth paragraph under
the caption "Underwriting" and the discount and commission table on
page S-37 under "Underwriting" (collectively, the "Provided
Information") and the information in the last paragraph under the
caption "Underwriting". In addition, the statements in "Description of
the Notes" in the Prospectus Supplement and in the Base Prospectus and
"The Transaction Documents" in the Base Prospectus, to the extent they
constitute a summary of the Notes, the Indenture and the Transfer
Agreement, constitute a fair and accurate summary thereof;
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (but not including any Computational
Materials, ABS Term Sheets or Collateral Term Sheets described in
Section 5A of this Agreement), when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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
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not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in the Provided Information;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
change, or any development involving a prospective change, in or
affecting the Company, Advanta or any of their respective subsidiaries
(other than as contemplated in the Registration Statement or the
Prospectus) which would be expected to have a material adverse effect
on either (1) the ability of such person to consummate the transactions
contemplated by, or to perform its respective obligations under, this
Agreement or any of the Transaction Documents to which it is a party or
(2) the Contracts considered in the aggregate;
(e) The Company has been duly formed and is validly existing as a
limited liability company in good standing under the laws of Nevada;
Advanta has been duly incorporated and is validly existing as an
industrial loan corporation in good standing under the laws of Utah;
each of the Company and Advanta has the power and authority (corporate
and/or other) to own its properties and conduct its business to the
extent described in the Prospectus and to perform its obligations
under this Agreement and the Transaction Documents to which it is a
party; and each of the Company and Advanta has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(f) As of the Time of Delivery, each consent, approval, authorization
or order of, or filing with, any court or governmental agency or body
that is required to be obtained or made by the Company and Advanta or
their subsidiaries for the consummation of the transactions
contemplated by this Agreement and the Transaction Documents shall
have been obtained or made, except for such consents, approvals,
authorizations, registrations or qualifications as may be required
under Blue Sky laws;
(g) Any taxes, fees and other governmental charges that are assessed
and due from the Company or Advanta in connection with the execution,
delivery and issuance of this Agreement and each Transaction Document
shall have been paid or will be paid at or prior to the Time of
Delivery to the extent then due;
(h) This Agreement has been duly authorized, executed and delivered by
the Company and Advanta and constitutes a legal, valid and binding
agreement of the
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the Company and Advanta enforceable in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a
proceeding in equity or at law;
(i) The Offered Securities have been duly and validly authorized by the
Company, the direction by the Company to the Trustee to authenticate
the Offered Securities has been duly authorized by the Company and,
when issued pursuant to the Indenture and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms, and entitled
to the benefits provided by the Indenture under which they are to be
issued, which Indenture will be substantially in the form filed as an
exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, the Indenture will constitute a valid and
legally binding instrument of the Company, enforceable in accordance
with its terms, except as enforceability may be limited by (i)
bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the
rights of creditors and (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law; assuming the
due authorization, execution and delivery thereof by the other parties
thereto, each of the other Transaction Documents will constitute a
valid and legally binding obligation of the Company and Advanta, as
applicable, enforceable in accordance with its terms, except as
enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar
laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a
proceeding in equity or at law; the execution, delivery and performance
by the Company and Advanta of the Transaction Documents to which they
are a party and the consummation of the transactions contemplated
thereby have been duly and validly authorized by all necessary action
and proceedings required of them; and the Offered Securities, the
Indenture, the Transfer Agreement and the other Transaction Documents
will conform in all material respects to the descriptions thereof in
the Prospectus;
(j) The issue and sale of the Offered Securities by the Company
hereunder and the compliance by the Company and Advanta with all of the
provisions of this Agreement, and the compliance by the Company and
Advanta with all of the provisions of all of the Transaction Documents
to which they are parties and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Company or Advanta is a
party or by which the Company or Advanta or any of their subsidiaries
is bound or to which any of the property or assets of the Company or
Advanta is subject, nor will such action result in any violation of the
provisions of the Articles of Organization, Certificate of
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Incorporation, By-laws or Limited Liability Company Operating Agreement
of the Company or Advanta, as applicable, or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or Advanta or any of their properties;
and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required to be obtained by any of them for the issue and sale of the
Offered Securities by the Company or the consummation by the Company or
Advanta of the transactions contemplated by this Agreement or the
Transaction Documents, except the registration under the Act of the
Offered Securities and the qualification of the Indenture under the
Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters;
(k) There are no legal or governmental proceedings to which the
Company or Advanta is a party or of which any property of the Company
or Advanta is the subject (i) asserting the invalidity of this
Agreement, the Offered Securities or any other Transaction Documents,
(ii) seeking to prevent the issuance of the Offered Securities or the
consummation of any of the transactions contemplated by this Agreement
or any Transaction Document, (iii) which is reasonably expected to
materially and adversely affect the performance by the Company or
Advanta, of their respective obligations under, or the validity or
enforceability of, this Agreement, the Offered Securities or the other
Transaction Documents, as applicable, (iv) seeking to affect
adversely the federal income tax attributes of the Offered Securities
described in the Prospectus or (v) which is reasonably expected to,
individually or in the aggregate, have a material adverse effect on
the Company or Advanta; and, to the best of the Company's and
Xxxxxxx's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(l) The Company and Advanta are not in violation of their respective
Articles of Organization, Certificate of Incorporation, Limited
Liability Company Operating Agreement or By-laws, and neither the
Company nor Advanta is in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(m) Neither the Company nor Advanta is and, after giving effect to the
offering and sale of the Offered Securities and other transactions
contemplated hereby, will be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act");
(n) As of the Cut-off Date, the computer tape of the Contracts made
available to the Representative by Xxxxxxx and the Company was accurate
in all material respects;
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(o) No selection procedures adverse to the holders of the Offered
Securities were utilized in selecting those Contracts transferred by
Advanta to the Company from those lease and loan contracts available
therefor;
(p) Upon execution and delivery of the Transfer Agreement, the Company
will acquire the Contracts, free and clear of any lien, charge or
encumbrance (other than as contemplated by the Transaction Documents),
but subject to the rights of the related obligors;
(q) As of the date hereof and as of the Time of Delivery, Advanta is
not obligated to repurchase Contracts constituting a material portion
of the Aggregate Contract Principal Balance (as defined in the Transfer
Agreement);
(r) As of the date hereof, the Company is wholly owned by Advanta;
(s) In accordance with General Accepted Accounting Principles, as
currently in effect, each party to the Transfer Agreement will treat
the transactions contemplated by the Transfer Agreement as an absolute
assignment of the Contracts and security interests in the related
Equipment to the Company;
(t) Advanta represents and warrants that it has made available to the
Underwriters copies of the consolidated financial statements of Advanta
Corp. for the year ended December 31, 1999, as filed with the SEC.
Except as set forth in or contemplated in the Registration Statement
and the Prospectus or as described by Advanta Corp. in SEC filings or
press releases of general distribution, copies of which have been
delivered to you, there has been no material adverse change in the
condition (financial or otherwise) of Advanta Corp. since December 31,
1999;
(u) Each of the Company and Advanta hereby makes and repeats each of
the respective representations and warranties expressly made by it in
the Transaction Documents. Such representations and warranties are
incorporated by reference in this Section 2 and the Underwriters may
rely thereon as if such representations and warranties were fully set
forth herein;
(v) Any taxes, fees and other governmental charges arising from the
execution and delivery by Advanta or the Company of this Agreement, the
Transfer Agreement and the Indenture and in connection with the
execution, delivery and issuance of the Offered Securities and with the
transfer of the Contracts and interests in the Equipment, have been
paid or will be paid by the Company prior to the Closing Date; and
(w) Xxxxxx Xxxxxxxx LLP is an independent public accountant with
respect to Advanta and the Company within the meaning of the Act and
the rules and regulations promulgated thereunder.
All representations, warranties and agreements made herein shall be
deemed made as of the date hereof and as of the Time of Delivery; provided,
however, that to the extent any
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representation or warranty relates to a specific date, such representation and
warranty shall be deemed to continue to relate to such date.
3. Sale and Delivery to the Underwriters; Closing. Subject to the terms
and conditions herein set forth, the Company agrees to issue and sell the
Offered Securities to each of the Underwriters, severally and not jointly, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, the principal amount of Offered Securities set forth opposite the name
of such Underwriter, and at the purchase price set forth, in Schedule A hereto.
Each class of the Offered Securities will be represented initially by
one or more definitive global certificates in registered form which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or, on DTC's behalf, with DTC's designated nominee or custodian and duly
endorsed to DTC or in blank by an effective endorsement. The Company will
transfer the Offered Securities in book-entry form to the Representative, for
the account of each Underwriter, against payment by the Representative (by or on
behalf of each such Underwriter or otherwise) of the purchase price therefor by
wire transfer payable to the order of the Company in federal (same day) funds
(to such account or accounts as the Company shall designate), by causing DTC to
credit the Offered Securities to the account of the Representative at DTC. The
Company will cause the global certificates referred to above to be made
available to the Representative for checking at least 24 hours prior to the Time
of Delivery at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be 9:00 a.m., New
York City time, on March 29, 2000 or such other time and date as the
Representative and the Company may agree upon in writing. Such time and date are
herein called the "Time of Delivery."
The documents to be delivered at Time of Delivery by or on behalf of
the parties hereto pursuant to Section 6 hereof, including the cross receipt for
the Offered Securities and any additional documents requested by the
Underwriters pursuant to Section 6(q) hereof, will be delivered at the offices
of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Offered Securities will be delivered at
the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 10:00 a.m., New York time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
4. Offering by Underwriters. (a) It is understood that upon the
authorization by the Representative of the release of the Offered Securities,
the Underwriters propose and agree to offer the Offered Securities for sale upon
the terms and conditions set forth in the Prospectus.
(b) Each of the Underwriters agrees that if it is a foreign broker or
dealer not eligible for membership in the National Association of
Securities Dealers, Inc. (the "NASD"), it will not effect any
transaction in the Offered Securities within the United States or
induce or attempt to induce the purchase of or sale of the Offered
Securities within the United States, except that you shall be permitted
to make sales to the other
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Underwriters or to their United States affiliates; provided that such
sales are made in compliance with an exemption of certain foreign
brokers or dealers under Rule 15a-6 under the Exchange Act, and in
conformity with the Rules of Fair Practice of the NASD as such rules
apply to non-NASD brokers or dealers.
(c) Each Underwriter further represents that:
(i) it has not offered or sold and, prior to the expiry of six
months from the Closing Date, will not offer or sell, any Offered
Securities 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 purposes of their
business, 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 Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything
done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom;
(iii) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the issue of the Offered Securities to a person of a kind
described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or persons to whom
such document may otherwise lawfully be issued, distributed or passed
on; and
(iv) it is a person of a kind described in Article II(3) of
the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996.
5. Certain Agreements of the Company and Advanta. The Company and
Advanta, jointly and severally, agree with each of the Underwriters that:
(a) The Company will prepare the Prospectus in a form approved by the
Representative (which approval will not be unreasonably withheld) and
will file such Prospectus pursuant to Rule 424(b) under the Act not
later than the date required by Rule 424; make no further amendment or
any supplement to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) under the
Act) or Prospectus prior to the Time of Delivery which shall be
reasonably disapproved by the Representative promptly after reasonable
notice thereof; will advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
and to furnish you with copies thereof, will file promptly all reports
and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Securities; to
advise the Representative, promptly after it receives notice thereof,
of the issuance by the
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Commission of any stop order or of any order preventing or suspending
the use of the Prospectus, of the suspension of the qualification of
the Offered Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any
such qualification, will promptly use its best efforts to obtain the
withdrawal of such order.
(b) The Company will promptly from time to time take such action as the
Representative may reasonably request to qualify the Offered Securities
for offering and sale under the securities laws of such states as the
Representative may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such states for as
long as may be necessary to complete the distribution of the Offered
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or entity or to file a
general consent to service of process in any state.
(c) The Company will furnish the Underwriters with copies of the
Prospectus in such quantities as the Underwriters may from time to
time reasonabl request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or
sale of the Offered Securities and if at such time any event shall
have occurred 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 in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to
amend or supplement the Prospectus or to file under the Exchange Act
any document incorporated by reference in the Prospectus in order to
comply with the Act or the Exchange Act or the Trust Indenture Act,
will notify the Representative and promptly will file such document
which will correct such statement or omission and will prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such
compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Offered Securities
at any time nine months or more after the time of issue of the
Prospectus, upon the Representative' request will, at the Company's
expense, prepare and deliver to such Underwriter as many copies as
such Underwriter may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act.
(d) As soon as practicable, the Company will make generally available
to Noteholders and to the Underwriters an earnings statement or
statements of the Company which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act. The Company will
comply with the periodic reporting requirements under the Exchange Act.
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(e) During the period beginning from the date hereof and continuing to
and including the later of the Time of Delivery or the termination of
the syndicate, which shall in no event exceed 30 days from the Time of
Delivery, neither the Company, nor Advanta will offer, sell, contract
to sell or otherwise dispose of, except as provided hereunder, any
securities secured by or evidencing interests in receivables similar to
the Contracts.
(f) So long as any Offered Securities shall be outstanding, the Company
will deliver or cause to be delivered to the Representative the annual
statement as to compliance to be delivered by the Company to the
Trustee pursuant to the Transfer Agreement, as soon as such statement
is furnished to the Company.
(g) The Company and Advanta will cooperate with the Underwriters and
use their best efforts to permit the Offered Securities to be
eligible for clearance and settlement through DTC.
(h) The Company will furnish such information, execute such
instruments and take such actions, if any, as the Representative may
reasonably request in connection with the filing with the NASD
relating to the Offered Securities should the Representative
determine that such filing is required or appropriate.
(i) So long as any of the Offered Securities are outstanding, the
Company will furnish to the Representative as soon as practicable (i)
all documents required to be distributed to the holders of the Offered
Securities or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder, (ii) all monthly reports
required to be delivered to or filed with the Trustee, (iii) all
notices or requests to or from the Rating Agencies with respect to the
Offered Securities that have been delivered to or received by the
Company and (iv) from time to time, any other publicly available
information concerning the Company filed with any government or
regulatory authority, as the Representative may reasonably request.
(j) At the Time of Delivery, the electronic ledger used by Advanta as a
master record of the Contracts conveyed by Advanta to the Company shall
be marked in such a manner as shall clearly indicate the Company's
absolute ownership of the Contracts, and from and after the Time of
Delivery, neither the Company nor Advanta nor any of their affiliates
shall take any action inconsistent with the Company's ownership of such
Contracts, other than as permitted by the Transfer Agreement.
(k) To the extent, if any, that the rating provided with respect to the
Offered Securities by any of the Rating Agencies that initially rate
the Offered Securities is conditional upon the furnishing of documents
or the taking of any other reasonable actions by the Company or
Advanta, the Company and Advanta will use their best efforts to
furnish, as soon as practicable, such documents and take (or cause the
taking of) any such other actions.
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(l) The Company will use the net proceeds received by it from the
issuance of the Offered Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(m) The Company will file with the Commission within fifteen days of
the issuance of the Offered Securities a current report on Form 8-K
setting forth specific information concerning the Offered Securities
and the Contracts to the extent that such information is not set forth
in the Prospectus. The Company will also file with the Commission a
current report on Form 8-K setting forth all Computational Materials,
ABS Term Sheets and Collateral Term Sheets (as such terms are defined
herein) provided to the Company by any Underwriter within the
applicable time periods allotted for such filing pursuant to the
No-Action Letters (as such term is defined herein).
5A. Investor Information. Each Underwriter may prepare and provide to
prospective investors certain Computational Materials, ABS Term Sheets or
Collateral Term Sheets in connection with its offering of the Offered
Securities, subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation, as made applicable to other
issuers and underwriters by the Commission in response to the request
of the Public Securities Association dated May 24, 1994 (collectively,
the "XXXXXX/PSA LETTER"), and the requirements of the No-Action Letter
of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA LETTER" and, together with the Xxxxxx/PSA Letter,
the "NO-ACTION LETTERS").
(b) For purposes hereof, "COMPUTATIONAL MATERIALS" shall have the
meaning given such term in the No-Action Letters, but shall include
only those Computational Materials that have been prepared or delivered
to prospective investors by any Underwriter. For purposes hereof, "ABS
TERM SHEETS" and "COLLATERAL TERM SHEETS" shall have the meanings given
such terms in the PSA Letter but shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared or delivered
to prospective investors by any Underwriter.
(c) Each Underwriter shall provide to the Company any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided
to investors by it no later than the date preceding the date such
Computational Materials, ABS Term Sheets or Collateral Term Sheets are
required to be filed pursuant to the applicable No-Action Letters. Each
Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed.
(d) In the event that the Company or any Underwriter discovers an error
in the Computational Materials, ABS Term Sheets or Collateral Term
Sheets, the Underwriter that prepared such material shall prepare
corrected Computational Materials, ABS Term Sheets or Collateral Term
Sheets, as applicable, and deliver them to the Company for filing
pursuant to Section 5(o).
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6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters hereunder shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and Advanta herein are, at and as of the Time of Delivery, true and
correct (except to the extent that any representation or warranty relates to a
specific date, in which case such representation or warranty shall be deemed to
continue to relate to such date), the condition that the Company and Advanta
shall have performed all of their respective obligations hereunder theretofore
to be performed, and the following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with
to the Representative's reasonable satisfaction;
(b) Xxxxxxx & Xxxxxx, counsel for the Underwriters, shall have
furnished to the Underwriters such opinion or opinions, dated the Time
of Delivery, with respect to certain securities law issues and other
related matters as the Representative may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) The Underwriters shall have received (i) from Xxxxxx, Xxxxxxxxxx &
Sutcliffe LLP, an opinion, in form and substance satisfactory to the
Representative and dated the Time of Delivery, that (x) the Trustee,
for the benefit of the Noteholders, has a security interest under a
letter agreement between Advanta and the Trustee in the Conveyed Assets
owned by Advanta and such security interest in the Conveyed Assets is
enforceable against Advanta with respect to such collateral and (y) the
Indenture creates in favor of the Trustee a security interest in the
rights of the Company in the Collateral and (ii) letters authorizing
the Underwriters to rely upon any other opinion or opinions delivered
by counsel or certificates delivered by any party to any of the Rating
Agencies in connection with the transactions contemplated by this
Agreement and the Transaction Documents;
(d) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel for the Company and
Advanta, shall have furnished to the Underwriters their opinion, dated
the Time of Delivery, with respect to the validity of this Agreement
and the Transaction Documents and corporate, perfection, tax and other
matters in form and substance satisfactory to the Representative.
(e) Xxx Xxxx, Xxxxxx, Xxxxxxxx & XxXxxxxx and Xxxxxxxx and Wedge,
counsel for Advanta and the Company, respectively, shall have
furnished to the Underwriters their opinion, dated the Time of
Delivery, with respect to the validity of this Agreement and the
Transaction Documents and corporate, perfection and other matters in
form and substance satisfactory to the Representative.
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(f) Xxxxxx & Xxxxxx, counsel for the Trustee, shall have furnished to
the Underwriters their opinion, dated the Time of Delivery, in form and
substance satisfactory to the Representative, substantially to the
effect that:
(i) The Trustee is a banking corporation validly existing under the
laws of the State of New York;
(ii) The Trustee has the requisite power and authority to execute,
deliver and perform its obligations under each of the Transaction
Documents, and has taken all necessary action to authorize the
execution, delivery and performance by it of each of the Transaction
Documents;
(iii) Each of the Transaction Documents has been duly 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 that such enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium, liquidation, or
other similar laws affecting the enforcement of creditors' rights
generally, and by general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(iv) The Notes delivered on the date hereof have been duly
authenticated by the Trustee in accordance with the terms of the
Indenture;
(v) To the best of our knowledge, without independent investigation, no
approval, authorization or other action by or filing with any
governmental authority of the United States of America, or of the State
of New York, having jurisdiction over the banking or trust powers of
the Trustee is required in connection with the execution and delivery
by the Trustee of each of the Transaction Documents; and
(vi) The execution and delivery of each of the Transaction Documents,
and the performance by the Trustee of the respective terms of each of
the Transaction Documents, do not conflict with or result in a
violation of the Articles of Incorporation or By-laws of the Trustee
or any federal or State of New York law or regulation governing the
banking or trust powers of the Trustee.
(g) (i) On the date of the Prospectus, (ii) at 9:30 a.m., New York City
time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement
and (iii) at the Time of Delivery, Xxxxxx Xxxxxxxx LLP shall have
furnished to the Representative a letter or letters, dated the
respective dates of delivery thereof, in form and substance
satisfactory to the Representative, containing statements and
information of the type customarily included in accountants'
"agreed-upon procedures letters" to underwriters in transactions of
this nature, including a statement by each to the effect that Xxxxxx
Xxxxxxxx LLP is an independent public accountant with respect to the
Company and
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Advanta, as defined in the Act and the rules and regulations of the
Commission thereunder;
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall
not have been any change, or any development involving a prospective
change, in or affecting the Company or Advanta (other than as
contemplated in the Registration Statement) which, in the reasonable
judgment of the Representative, would be expected to have an adverse
effect on either (a) the ability of such person to consummate the
transactions contemplated by, or to perform its respective obligations
under, this Agreement or any of the Transaction Documents to which it
is a party or (b) the Contracts that, in either case, would make it
impractical or inadvisable to proceed with the offering or the
delivery of the Offered Securities as contemplated by the
Registration Statement and the Prospectus (and any supplements
thereto);
(i) At the Time of Delivery, (i) the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class B Notes, the Class C Notes and
the Class D Notes shall be rated by Xxxxx'x Investors Services, Inc.
("Moody's") at least "Aaa", "Aaa", "Aaa", "Aa3", "A2", and "Baa2",
respectively and (ii) the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class B Notes, the Class C Notes and the Class D
Notes shall be rated by Fitch IBCA, Inc. ("Fitch") at least "AAA",
"AAA", "AAA", "AA-", "A" and "BBB+", respectively;
(j) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Offered Securities on the
terms and in the manner contemplated in the Prospectus;
(k) Each of the Company and Advanta shall have delivered to the
Representative a certificate, dated the Time of Delivery, signed by its
Chairman of the Board, President, Executive Vice President, Senior Vice
President, Vice President, principal financial officer, principal
accounting officer, treasurer or any manager to the effect that the
signer of such certificate has examined this Agreement, the Transfer
Agreement, the Indenture, the Prospectus (and any supplements thereto),
the Registration Statement, and the other Transaction Documents and
that:
(i) the representations and warranties of the Company or
Advanta, as applicable, in this Agreement are true and correct at and
as of the Time of Delivery as if made on and as of the Time of Delivery
(except to the extent they expressly relate to an earlier date, in
which case the representations and warranties of such party are true
and correct as of such earlier date as if made at the Time of
Delivery);
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(ii) the Company or Advanta, as applicable, has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied under this Agreement at or prior to the Time of
Delivery;
(iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the knowledge of the signer,
threatened;
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change, or any development involving a prospective change, in
or affecting the Company or Advanta (other than as contemplated in the
Registration Statement) which would be expected to have a material
adverse effect on either (1) the ability of such person to consummate
the transactions contemplated by, or to perform its respective
obligations under, this Agreement or any of the Transaction Documents
to which it is a party or (2) the Contracts (taken as a group);
(v) there has not occurred any material adverse change, or, to
such officer's knowledge, any development involving a prospective
material adverse change, in the condition, financial or otherwise,
results of operations, business or operations of the Company and
Advanta, taken as a whole, since December 31, 1999;
(vi) on or prior to the Closing Date, there has been no
downgrading nor has any notice been given of (A) any intended or
potential downgrading or (B) any review or possible change in rating,
the direction of which has not been indicated in, the rating, if any,
accorded the Offered Securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of the Act;
(vii) as of the Time of Delivery, no Contracts constituting a
material portion of the aggregate contract principal balance constitute
Ineligible Contracts; and
(viii) as to such other matters as the Representative may
reasonably request.
(l) The Company shall have delivered to the Representative a copy,
certified by an officer of the Company, of the Registration Statement as
initially filed with the Commission and of all amendments thereto (including all
exhibits) and full and complete sets of all written comments of the Commission
or its staff and all written responses thereto with respect to the Registration
Statement;
(m) The Underwriters shall have received a certificate, signed by a
secretary or an assistant secretary of Advanta and a manager of the Company,
dated the Closing Date, to the effect that each person who, as an officer or
representative of Advanta or a manager of the Company, signed or signs any
Transaction Document or any other document delivered pursuant hereto, on the
date hereof or on the Closing Date, was, at the respective times of such signing
and delivery, and is now, duly elected or
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appointed, qualified and acting as such officer or manager, and the
signatures of such persons appearing on such documents are their
genuine signatures;
(n) The Company, Advanta and the Trustee shall have executed and
delivered each Transaction Document and this Agreement to which it is a
party;
(o) The Underwriters shall have received copies of all UCC searches as
Winston & Xxxxxx shall reasonably request. The Underwriters shall have
received evidence satisfactory to it that, on or before the Closing
Date, UCC-1 financing statements have been or are being filed in Utah
to perfect the transfer from Advanta to the Company and in Nevada to
perfect the security interest granted by the Company to the Trustee;
(p) The Company shall have transferred to the Trustee, for deposit in
the Collection Account to be maintained by the Trustee in accordance
with the Indenture, all payments on the Contracts actually received by
the Company which were due subsequent to the Cut-Off Date and received
on or prior to the Closing Date.
(q) The Underwriters and Winston & Xxxxxx shall have received such
information, certificates and documents as the Underwriters or Winston
& Xxxxxx may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all respects when and as provided in this Agreement, if the
Company or Advanta is in breach of any covenants or agreements contained herein
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel to the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled on,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company and Advanta in writing, or by
telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) The Company and Advanta, jointly and severally, will indemnify and
hold harmless each Underwriter, its partners, directors and officers
and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, from and against (i) any and all
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or any such controlling person 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 (x) an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus,
or (y) 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 will promptly reimburse each Underwriter, their
respective directors and officers and each person who controls the
Underwriter within the meaning of Section 15 of the Act, for any
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legal or other expenses reasonably incurred by any Underwriter and such
other indemnified persons in connection with investigating, preparing
or defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and Advanta
shall 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 or omission or alleged omission
made in the Registration Statement or the Prospectus in reliance upon
and in conformity with the Provided Information and provided further
that such Provided Information was not based upon Company-Provided
Information (as defined below) and (ii) against any losses, claims,
damages, liabilities, joint or several, and expenses whatsoever, as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Computational Materials,
ABS Term Sheets or Collateral Term Sheets distributed by any
Underwriter; unless such untrue statement or alleged untrue statement
of a material fact was made in reliance upon and in conformity with
Derived Information provided by such Underwriter expressly for use in
the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statement or alleged untrue statement did not
derive from an inaccuracy in the Company-Provided Information used in
the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets. The foregoing indemnity agreement is in
addition to any liability which each of the Company and Advanta may
otherwise have to the Underwriters or any person who controls such
Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and Advanta, their respective directors and
officers and each person, if any who controls the Company or Advanta,
as the case may be, within the meaning of Section 15 of the Act,
against (i) any losses, claims, damages or liabilities to which the
Company or 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 (x) an untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or (y) 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,
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 the Registration Statement or the Prospectus in reliance
upon and in conformity with the Provided Information and provided that
such Provided Information was not based upon Company-Provided
Information (as defined herein); and will reimburse the Company and
Advanta, their respective directors and officers and each person who
controls the Company or Advanta within the meaning of Section 15 of the
Act, for any legal or other expenses reasonably incurred by the
Company, Advanta and such other indemnified persons in connection with
investigating, preparing or defending any such loss, claim, damage,
liability or action as such expenses are incurred and (ii) any losses,
claims, damages and expenses described in the indemnity contained in
subsection (a) of this Section 7, as incurred, but only with respect to
untrue statements or alleged untrue statements made in the
Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished by
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such Underwriter to the extent that such untrue statement or alleged
untrue statement of a material fact was made in reliance upon and in
conformity with Derived Information provided by it expressly for use in
the Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statements or alleged untrue statements were not
derived from any inaccuracy in the Company-Provided Information used in
the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets. The foregoing indemnity agreement is in
addition to any liability which the Underwriters may otherwise have to
each of the Company and Advanta as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the claim or commencement thereof; but
the omission so to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party otherwise
than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who may be counsel to the indemnifying party);
provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party, and the
indemnified party shall have been advised in writing (with a copy to
the indemnifying party) by counsel that representation of such
indemnified party and the indemnifying party is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. It is understood that
the indemnifying party shall, in connection with any such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only
one separate firm of attorneys together with appropriate local counsel
at any time from all indemnified parties not having actual or potential
differing interests with any other indemnified party. The indemnifying
party will not be liable for any settlement entered into without its
consent and will not be liable to such indemnified party under this
Section 7 for any legal or other expenses incurred by such indemnified
party in connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
provided that, if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such clause (i)
or (iii).
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(d) Each Underwriter severally agrees, except to the extent any loss,
claim, damage or liability described in this subsection (d) occurs
because Company-Provided Information (defined below) is not accurate
and complete in all material respects, to indemnify and hold harmless
the Company and Advanta, and their respective directors, officers,
managers and controlling persons 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 Derived Information
provided by such 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, provided that, in no event shall any Underwriter be
responsible under this clause (d) for any amount in excess of the
underwriting discount applicable to the Offered Securities purchased by
such Underwriter hereunder. Each Underwriter's obligations under this
Section 7(d) shall be in addition to any liability which each
Underwriter may otherwise have to the Company or Advanta.
(e) Each of the Company and Advanta agrees to indemnify and hold
harmless the Underwriters, each of the Underwriters' officers and
directors and each person who controls the Underwriters 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
Company-Provided Information provided by the Company and Advanta, 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 Company and
Advanta's obligation under this Section 7(e) shall be in addition to
any liability which they may otherwise have to the Underwriters.
The procedures set forth in Section 7(c) shall be equally applicable to
Sections 7(d) and 7(e).
(f) For purposes of this Section 7, the term "DERIVED INFORMATION"
means such portion, if any, of the information delivered to the Company
or Advanta by the Underwriters for filing with the Commission as:
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(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, ABS Term Sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"COMPANY-PROVIDED INFORMATION" means any computer tape furnished to the
Underwriters by the Company concerning the Contracts or any other information
furnished by the Company to the Underwriters that is relied on or is reasonably
anticipated by the parties hereto to be relied on by the Underwriters in the
course of the Underwriters' preparation of its Derived Information or the
Provided Information.
(g) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative
benefits received by the Company and Advanta on the one hand and the
Underwriters on the other from the offering of the Offered Securities.
If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then
each indemnifying party shall contribute to such amount paid or payable
by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Company and Advanta 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 (or actions or proceedings
in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and
Advanta 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 of the Offered Securities purchased under this Agreement
(before deducting expenses) received by the Company and Advanta bear to
the total underwriting discounts and commissions received by the
Underwriters with respect to the Offered Securities purchased under
this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. 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 the Company or
Advanta on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company, Advanta and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this subsection (g) were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which
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does not take into account the equitable considerations referred to
above in this subsection (g). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to
above in this subsection (g) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating, preparing or defending any such action
or claim. Notwithstanding the provisions of this subsection (g), no
Underwriter shall be obligated to contribute any amount in excess of
the underwriting discount applicable to the Offered Securities
purchased by such Underwriter under this Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (g) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(h) The obligations of the Company and Advanta under this Section 7
shall be in addition to any liability which the Company and Advanta may
otherwise have and shall extend, upon the same term and conditions, to
each person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the respective Underwriters
may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or Advanta who
has signed the Registration Statement and to each person, if any, who
controls the Company or Advanta within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder at the Time of
Delivery, the remaining Underwriters (the "Non-Defaulting Underwriters") shall
have the right, but not the obligation, to make arrangements satisfactory to the
Representative and the Company for the purchase of such Offered Securities by
other persons within 36 hours after such default; if, however, the
Non-Defaulting Underwriters shall not have completed such arrangements with such
36 hour period, then this Agreement shall terminate without liability on the
part of any Non-Defaulting Underwriter, Advanta or the Company, except as
provided in Section 10 hereof. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
In the event of any such default which does not result in a termination
of this Agreement, any of the Non-Defaulting Underwriters or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required change in the Registration Statement or
Prospectus or in any other documents or arrangements.
9. Reimbursement of Expenses. If (x) no closing of the sale of the
Offered Securities occurs by the Closing Date through no fault of the Company or
Advanta or because the conditions set forth in Section 6 have not been met, or
(y) the Underwriters terminate the engagement pursuant to Section 12 or because
any conditions precedent in Section 6 have not been fulfilled, then the
Company's or Advanta's liability to the Underwriters shall be limited to the
reimbursement of the Underwriters' expenses incurred through the date of
termination for their reasonable out-of-pocket and incidental expenses including
the reasonable fees and
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expenses of Underwriters' counsel. In addition, whether or not the Offered
Securities are issued or sold:
(a) The Company or Advanta shall pay the reasonable fees and
expenses associated with the transactions contemplated hereby not paid
by the Underwriters in accordance with the provisions of Section 9(b)
including, without limitation, the following fees and expenses:
(i) rating agency fees payable with respect to their
ratings of the Offered Securities;
(ii) any fees charged by the firm of independent
public accountants referred to in Section 6(g);
(iii) filing fees in connection with the transactions
contemplated hereby including, but not limited to, the
Commission;
(iv) the Trustee's fees and expenses and reasonable
fees and expenses of counsel to the Trustee;
(v) the costs and expenses of printing the Prospectus
(except the amount to be paid by the Underwriters in Section
9(b) below);
(vi) the costs of printing or reproducing this
Agreement, the Blue Sky Survey, if applicable, and any other
documents in connection with the offer, sale and delivery of
the Offered Securities;
(vii) all expenses in connection with the
qualification of the Offered Securities under state securities
laws, including the fees and disbursements of counsel in
connection with the Blue Sky Survey, if applicable;
(viii) the cost of preparing the Offered Securities;
(ix) the cost or expenses of any transfer agent or
registrar; and
(x) all other costs and expenses incident to the
performance of their obligations hereunder which are not
otherwise specifically provided for in this Section 9;
provided, that neither the Company nor Advanta waives any
rights to reimbursement from the Underwriters in the event of
any Underwriter's failure to perform in accordance with this
Agreement.
(b) It is understood and agreed that, except as provided in
Sections 7 and 10, the Underwriters will pay (i) securities transfer
taxes on resale of any of the Offered Securities by them, (ii) 50% of
the costs and expenses of printing the Prospectus, (iii) any
advertising expenses connected with any offers they may make and (iv)
fees and expenses of counsel to the Underwriters.
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10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, Advanta and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company or Advanta, or any
officer or director or controlling person of the Company or Advanta, and shall
survive delivery of and payment for the Offered Securities.
If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 9, and the respective obligations of the
Company and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8, the Company will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including fees, expenses and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Offered Securities, but neither Advanta nor the Company
shall then be under no further liability to any Underwriter except as provided
in Sections 7 and 9 hereof.
11. Notices. All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex or facsimile transmission to you as the Representative in care of
Prudential Securities Incorporated, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
00000 Attention: Xxxxxx Xxxxxxxx; if to Advanta shall be delivered or sent by
mail, telex or facsimile transmission to the address of Advanta set forth in the
Registration Statement, Attention: Secretary; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to Advanta Equipment
Receivables Series 2000-1 LLC, 000 Xxxxxx Xxxx, Xxxxx 000-0, Xxxx, Xxxxxx 00000,
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by the Representative upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
12. Termination.
(a) This Agreement may be terminated by you in your absolute discretion
at any time upon the giving of notice at any time prior to the Closing
Date: (i) if there has been any material adverse change in the
condition, financial or otherwise, of the Company or Advanta, or in the
earnings, business affairs or business prospects of the Company or
Advanta, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets
of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Offered Securities
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or enforce contracts for the sale of the Offered Securities, or (iii)
if trading generally on either the American Stock Exchange or the New
York Stock Exchange has been suspended, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order
of the Commission or any other governmental authority, or (iv) if a
banking moratorium has been declared by either federal or New York
authorities. In the event of any such termination, no party will have
any liability to any other party hereto, except as otherwise provided
in Section 7 hereof.
(b) This Agreement may not be terminated by the Company or Advanta
without the written consent of the Underwriters, except in accordance
with law.
(c) Notwithstanding anything herein to the contrary, in the event the
Company or Advanta does not perform any obligation under this Agreement
or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the
Underwriters' obligations hereunder may be immediately cancelled by the
Underwriters by notice thereof to the Company or Advanta. Any such
cancellation shall be without liability of any party to any other party
except that the provisions of Sections 7 and 10 hereof shall survive
any such cancellation.
13. Successors. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and Advanta and, to the extent
provided in Sections 7 and 8 hereof, the officers, directors and managers of the
Company and Advanta and each person who controls the Company and Advanta or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Representation of Underwriters. In all dealings hereunder, you
shall act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you.
15. Time of the Essence. Time shall be of the essence of this
Agreement.
16. Counterparts. This Agreement may be executed by any one or more of
the parties hereto 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 instrument.
17. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and Advanta hereby submit to the non-exclusive 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.
18. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party
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against whom enforcement of the change, waiver, discharge or termination is
sought. The headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.
[signature page follows]
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If the foregoing is in accordance with your understanding, please sign
and return to us one for each of the Company and Advanta and for each of the
Underwriters plus one for each counsel counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement between each of the
Underwriters, Advanta, and the Company.
Very truly yours,
ADVANTA EQUIPMENT RECEIVABLES
SERIES 2000-1 LLC
By: /S/ Xxxx Xxxxxxx
---------------------------------
Printed Name: Xxxx Xxxxxxx
Title: President
ADVANTA BANK CORP.
By: /S/ Xxxx Xxxxx
-----------------------------------
Printed Name: Xxxx Xxxxx
Title: President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
as Representative of the Underwriters
By: PRUDENTIAL SECURITIES INCORPORATED
By: /S/ Xxxxxx Xxxxxxxx
---------------------------------
Authorized Representative
Signature Page to Underwriting Agreement
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SCHEDULE A
Total Aggregate Principal Amount
Underwriter of Offered Securities to be Purchased
Class A-1 Class A-2 Class A-3 Class B Class C Class D
Prudential Securities
Incorporated............. $90,642,500 $31,634,500 $42,311,500 $28,215,000 $18,810,000 $9,405,000
Barclays Capital Inc........... 45,321,250 15,817,250 21,155,750 -- -- --
Xxxxxx Xxxxxxx & Co.
Incorporated....................... 45,321,250 15,817,250 21,155,750 -- -- --
---------- ---------- ---------- ----------- ----------- ----------
Total $181,285,000 $63,269,000 $84,623,000 $28,215,000 $18,810,000 $9,405,000
============ =========== =========== =========== =========== ==========
Purchase Price to Public
(as a percentage of
the principal amount of
each class of Offered Securities)*
Class A-1: 0.30%
Class A-2: 0.30%
Class A-3: 0.30%
Class B: 0.35%
Class C: 0.35%
Class D: 0.50%
