EXHIBIT 1.1
II-6
$________________
ADVANTA AUTO FINANCE CORPORATION 199_-__
____% Automobile Receivables Backed Notes, Series 199
UNDERWRITING AGREEMENT
_________ __, 199_
[NAME AND ADDRESS OF UNDERWRITER]
Dear Sirs:
1. Introduction. Advanta Auto Finance Corporation 199_-_ , a Nevada
corporation ("Advanta"), has authorized the issuance and sale of ______%
Automobile Receivables Backed Notes, Series 199_-_ (the "Notes"), evidencing
interests in a trust (the "Trust") consisting of a combination of retail
installment sales contracts (the "Receivables") secured by new and used
automobiles and light duty trucks (the "Vehicles") financed thereby, amounts due
or received thereunder on or after ________ __, 199_, (the "Cut-Off Date"), and
security interests in the Vehicles financed thereby. The Notes will be issued
under a Pooling and Servicing Agreement dated as of _______ __, 199_ (the
"Pooling Agreement") between ____________, as seller, _________________________,
as issuer, Advanta Auto Finance Corporation, in its individual capacity,
__________________ as Back-up Servicer and _______________, as trustee (the
"Trustee").
The Notes will evidence fractional undivided interests in the Trust.
[The Trustee, on behalf of the holders of the Notes (the "Noteholders"), will
have the benefit of a cash collateral account (the "Cash Collateral Account")].
The Notes will be issued in an aggregate principal amount of $__________, which
is equal to the original pool balance of the Receivables, exclusive of accrued
interest, as of the opening of business on the Cut-Off Date. The forms of the
Pooling Agreement and the Cash Collateral Trust Agreement (as such term is
hereinafter defined) have been timely filed as exhibits to the Registration
Statement (as such term is hereinafter defined). Capitalized terms used but not
defined herein shall have the meanings given to them in the Pooling Agreement.
The Trustee, _________________________________, as cash collateral
trustee (the "Cash Collateral Trustee"), ____________, and a financial
institution as cash collateral depositor (the "Cash Collateral Depositor"), will
enter into a cash collateral trust agreement to be dated as of _______, __ 199_
(the "Cash Collateral Trust Agreement") pursuant to which the Cash Collateral
Account will be established for the benefit of the Trustee and the Cash
Collateral Depositor, as secured parties. In addition, __________, the Cash
Collateral Trustee, the lenders named therein and the Cash Collateral Depositor
will enter into a loan agreement to be dated as of the Closing Date (the "Loan
Agreement"), pursuant to which the Cash Collateral Depositor and the Bank will
deposit the Initial Cash Collateral Amount (as defined in the Cash Collateral
Trust Agreement) into the Cash Collateral Account.
Advanta hereby agrees with the Underwriter named in Schedule 1
hereto (the "Underwriter") as follows:
2. Representations and Warranties of Advanta. Advanta represents and
warrants to, and agrees with, each of the Underwriters that:
(a) A Registration Statement on Form S-3 (No. 33-________) relating
to the Certificates, including a form of Prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has been
declared effective under the Act of 1933 (the "Act") and is not proposed to be
amended or (ii) is proposed to be amended by amendment or post-effective
amendment. If Advanta does not propose to amend such Registration Statement or
if any post-effective amendment to such Registration Statement has been filed
with the Commission prior to the execution and delivery of this Agreement, such
Registration Statement or such post-effective amendment, as the case may be, has
been declared effective by the Commission. For purposes of this Agreement,
"Effective Time" means (i) if Advanta has advised the Underwriter that it does
not propose to amend such Registration Statement, the date and time as of which
such Registration Statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission, or (ii) if Advanta has advised the
Underwriter that it proposes to file an amendment or post-effective amendment to
such Registration Statement, the date and time as of which such Registration
Statement, as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. "Effective Date" means the date
of the Effective Time. Such Registration Statement, as amended at the Effective
Time, including all material incorporated by reference therein and including all
information, if any, deemed to be a part of such Registration Statement as of
the Effective Time pursuant to Rule 430A(b)
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under the Act, is referred to herein as the "Registration Statement", and the
form of prospectus relating to the Certificates, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the Act or, if
no such filing is required, as included in the Registration Statement, including
all material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus".
(b) If the Effective Time is prior to the execution and delivery of
this Agreement: (i) on the Effective Date, the Registration Statement conformed,
and on the date of this Agreement the Registration Statement conforms, in all
material respects with the requirements of the Act and the rules and regulations
of the Commission ("Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(ii) on the date of this Agreement, the Prospectus conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) and at the Closing Date, the
Prospectus will conform, in all material respects to the requirements of the Act
and the Rules and Regulations, and the Prospectus does not include and does not
omit, and will not include, any untrue statement of a material fact, and does
not omit, to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If the Effective Time is subsequent to the execution and delivery of
this Agreement: on the Effective Date, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of the Act
and the Rules and Regulations, and (i) the Registration Statement will not
include any untrue statement of a material fact or will not omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and (ii) the Prospectus will not include an untrue
statement of a material fact or will not omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The two preceding sentences do not apply
to statements in or omissions from the Registration Statement or Prospectus
based upon written information furnished to Advanta by the Underwriter
specifically for use therein, it being understood the only such information is
that described as such in Section 8(b). The conditions to the use by Advanta of
a Registration Statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the Registration
Statement and the Prospectus. There are no contracts or documents which are
required to be filed as exhibits to the Registration Statement pursuant to the
Act or the Rules and Regulations which have not been so filed on or prior to the
Effective Date.
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(c) Since the respective dates as of which information is given in
the Prospectus, or the Prospectus as amended and supplemented, there has not
been any material adverse change in the general affairs, management, or results
of operations of Advanta or of its subsidiaries otherwise than as set forth or
contemplated in the Prospectus or the Prospectus as amended and supplemented,
nor has there been any adverse change in the general affairs, management, or
results of operations of any other affiliate of Advanta which could have a
material adverse effect on the general affairs, management or results of
operations of Advanta or its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus or the Prospectus as amended and supplemented.
(d) Advanta is a corporation duly organized and validly existing
under the laws of the State of Nevada, and has full corporate power, authority
and legal right to own its properties and conduct its business as such
properties are presently owned and such business is presently conducted, and to
execute, deliver and perform its obligations under this Agreement, the Pooling
Agreement, the Cash Collateral Trust Agreement, and the Loan Agreement, and to
cause the Certificates to be issued. Advanta has conducted and is conducting its
business so as to comply in all material respects with all applicable statutes
and regulations. Advanta is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification.
(e) (i) There are no legal, governmental or regulatory proceedings
pending to which Advanta is a party or to which any of its property is the
subject, which, if determined adversely to Advanta, would individually or in the
aggregate have a material adverse effect on the performance by Advanta of this
Agreement, the Pooling Agreement, the Loan Agreement or the Cash Collateral
Trust Agreement or the consummation of the transactions contemplated hereunder
or thereunder and (ii) to the best of its knowledge, no such proceedings are
threatened or contemplated by governmental or regulatory authorities or
threatened by others.
(f) This Agreement has been duly authorized and validly executed and
delivered by Advanta and constitutes a valid and binding agreement of Advanta,
enforceable against Advanta in accordance with its terms, except to the extent
that (i) the enforceability hereof may be subject to insolvency, reorganization,
moratorium, receivership, conservatorship, or other similar laws, regulations or
procedures of general applicability now or hereafter in effect, (ii) the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to equitable defenses and to the discretion of the court before
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which any proceeding therefor may be brought and (iii) rights to indemnification
and contribution under this Agreement may be limited by state or federal
securities laws or the policies underlying such laws.
(g) The Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement have been duly authorized by Advanta and, when
executed and delivered by Advanta and assuming the due authorization, execution
and delivery of the Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement by the other parties thereto, will constitute valid
and binding obligations of Advanta enforceable against Advanta in accordance
with their respective terms, except to the extent that (i) the enforceability
thereof may be subject to insolvency, reorganization, moratorium, receivership,
conservatorship, or other similar laws, regulations or procedures of general
applicability now or hereafter in effect, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(h) The issuance and delivery of the Certificates, the consummation
of any other of the transactions contemplated herein, in the Pooling Agreement,
the Loan Agreement, or in the Cash Collateral Trust Agreement, or the
fulfillment of the terms of this Agreement, the Pooling Agreement, the Loan
Agreement or the Cash Collateral Trust Agreement, do not and will not conflict
with or violate any term or provision of the Certificate of Incorporation
By-Laws of Advanta, any statute, order or regulation applicable to Advanta of
any court, regulatory body, administrative agency or governmental body having
jurisdiction over Advanta and do not and will not conflict with, result in a
breach or violation or the acceleration of or constitute a default under or
result in the creation or imposition of any lien, charge or encumbrance upon any
of the property or assets of Advanta pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which Advanta is a party or by which Advanta may be bound or to which any of the
property or assets of Advanta may be subject except for conflicts, violations,
breaches, accelerations and defaults which would not, individually or in the
aggregate, be materially adverse to Advanta or materially adverse to the
transactions contemplated by this Agreement.
(i) ________________________________ is an independent public
accountant with respect to Advanta as required by the Act and the Rules and
Regulations.
(j) The direction by Advanta to the Trustee to execute, countersign,
issue and deliver the Notes has been duly authorized by Advanta, and, assuming
the Trustee has been
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duly authorized to do so, when executed, countersigned, issued and delivered by
the Trustee in accordance with the Pooling Agreement, the Notes will be validly
issued and outstanding and will be entitled to the benefits of the Pooling
Agreement.
(k) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body of the United
States is required for the issuance and sale of the Notes, or the consummation
by Advanta of the other transactions contemplated by this Agreement, the Pooling
Agreement, the Loan Agreement or the Cash Collateral Trust Agreement, except the
registration under the Act of the Notes and such consents, approvals,
authorizations, registrations or qualifications as may have been obtained or
effected or as may be required under securities or Blue Sky laws in connection
with the purchase and distribution of the Notes by the Underwriter.
(l) Advanta possesses all material licenses, certificates,
authorizations or permits issued by the appropriate state, Federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
it and as described in the Prospectus and Advanta has not received notice of
proceedings relating to the revocation or modification of any such license,
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially and
adversely affect the conduct of its business, operations, financial condition or
income.
(m) At the time of execution and delivery of the Pooling Agreement,
Advanta (i) will not have assigned to any person any of its right, title or
interest in the Receivables or in the Pooling Agreement or the Notes and (ii)
will have the power and authority to sell the Receivables to the Trustee and to
sell the Notes to the Underwriter, and upon execution and delivery of the
Pooling Agreement by the Trustee, the Trustee will have acquired beneficial
ownership of all of Advanta's right, title and interest in and to the
Receivables, and upon delivery to the Underwriter of the Notes the Underwriter
will have good and marketable title to the Notes.
(n) As of the Cut-Off Date, the Receivables will meet the
eligibility criteria described in the Prospectus.
(o) The Trust created by the Pooling Agreement is not, and
immediately following the issuance and sale of the Notes will not be, required
to be registered as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 Act"), as in effect on the date hereof.
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(p) Advanta has authorized the conveyance of the Receivables to the
Trust, and Advanta has authorized the Trust to issue the Notes.
(q) Each of the Notes, the Pooling Agreement and the Cash Collateral
Account conforms in all material respects to the descriptions thereof contained
in the Prospectus.
(r) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of this Agreement, the Pooling
Agreement, the Cash Collateral Trust Agreement, the Loan Agreement, the Cash
Collateral Account and the Notes that are required to be paid by Advanta at or
prior to the Closing Date have been paid or will be paid at or prior to the
Closing Date.
(s) Advanta will not apply the proceeds of the sale of the Notes
pursuant to this Agreement to purchase securities (which term does not include
the Receivables) within the meaning of Regulation T promulgated by the Federal
Reserve Board.
(t) As of the Closing Date, the representations and warranties of
Advanta in the Pooling Agreement will be true and correct.
Any certificate signed by an officer of Advanta and delivered to the
Underwriter or the Underwriter's counsel in connection with an offering of the
Notes shall be deemed, and shall state that it is, a representation and warranty
as to the matters covered thereby to each person to whom the representations and
warranties in this Section 2 are made.
3. Purchase, Sale, Delivery and Payments. The Underwriter's
commitment to purchase the Notes pursuant to this Agreement shall be deemed to
have been made on the basis of the representations and warranties herein
contained and shall be subject to the terms and conditions herein set forth.
▇▇▇▇▇▇▇ agrees to instruct the Trustee to issue and agrees to sell to the
Underwriter, and the Underwriter, severally and not jointly, agree, to purchase
from Advanta at the purchase price for the Notes set forth opposite the names of
the Underwriter on Schedule 1 hereto, the respective principal amount of Notes
set forth on Schedule 1 hereto. Payment of the purchase price for, and delivery
of, any Notes to be purchased by the Underwriter shall be made at the office of
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, or at such
other place as shall be agreed upon by the Underwriter and Advanta, at 10:00
a.m. New York City time on __________ __, 199_ (the "Closing Date"), or at such
other time or date or time as shall be agreed upon in writing by the Underwriter
and Advanta. On the Closing Date, payment shall be made to Advanta by wire
transfer of same day funds payable
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to the account of Advanta against delivery to the Trustee as custodian for The
Depository Trust Company ("DTC") of the Notes in the form of one or more global
securities in definitive form (the "Global Certificates") and registered in the
name of Cede & Co., as nominee for DTC. The Global Certificates will be made
available for checking at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ at least 24 hours prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the Underwriter
propose to offer the Notes for sale to the public (which may include selected
dealers) as set forth in the Prospectus.
5. Covenants of Advanta. Advanta covenants with the Underwriter as
follows:
(a) To prepare a Prospectus setting forth any price related
information previously omitted from the effective Registration Statement
pursuant to Rule 430A under the Act within the time period prescribed by Rule
430A, and to transmit such Prospectus to the Commission for filing pursuant to
Rule 424(b) under the Act within the prescribed time period, and prior to the
Closing Date to provide evidence satisfactory to the Underwriter of such timely
filing, or to prepare and timely file a post-effective amendment to the
Registration Statement providing such information, which post-effective
amendment shall have been declared effective in accordance with the requirements
of Rule 430A under the Act and to provide evidence satisfactory to the
Underwriter of the effectiveness thereof.
(b) If at any time when the Prospectus as amended or supplemented is
required by the Act to be delivered in connection with sales of the Notes by the
Underwriter, any event shall occur or condition exist as a result of which it is
necessary, in the opinion of the Underwriter's counsel or counsel for Advanta,
further to amend or supplement the Prospectus as then amended or supplemented in
order that the Prospectus as amended or supplemented will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of circumstances existing at the time
it is delivered to a purchaser, not misleading or if it shall be necessary, in
the opinion of any such counsel, at any such time to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented in
order to comply with the requirements of the Act or the Rules and Regulations,
or if required by such Rules and Regulations, including Rule 430A thereunder, to
file a post-effective amendment to such Registration Statement (including an
amended Prospectus), Advanta will promptly notify the Underwriter of such event
and will prepare and file with the Commission (subject to the Underwriter's
prior review), at its own expense, such
8
amendment or supplement as may be necessary to correct such untrue statement or
omission or to make the Registration Statement comply with such requirements,
and within two Business Days will furnish to the Underwriter as many copies of
the Prospectus, as amended or supplemented, as the Underwriter shall reasonably
request. Neither the Underwriter's consent to, nor the Underwriter's delivery
of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 of this Agreement.
(c) Advanta will give the Underwriter reasonable notice of its
intention to file any amendment to the Registration Statement, the Prospectus or
the Prospectus as amended or supplemented, pursuant to the Act, and will furnish
the Underwriter with copies of any such amendment or supplement proposed to be
filed a reasonable time in advance of filing, and will not file any such
amendment or supplement to which the Underwriter or the Underwriter's counsel
shall object.
(d) Advanta will notify the Underwriter immediately, and confirm the
notice in writing, (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or the Prospectus as amended or supplemented,
(iii) of the receipt and contents of any comments from the Commission with
respect to the Registration Statement or the Prospectus or the Prospectus as
amended or supplemented, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information and (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. Advanta will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(e) Advanta will deliver to the Underwriter as many signed and as
many conformed copies of the Registration Statement (as originally filed) and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated by reference in the Prospectus),
each related preliminary prospectus, and so long as delivery of a Prospectus
relating to the Notes is required to be delivered under the Act in connection
with sales by the Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Underwriter may reasonably request. Advanta will also furnish
to the
9
Underwriter copies of any report on Form SR required by Rule 463 under the Act.
(f) Advanta will make generally available to holders of the Notes as
soon as practicable, but in any event not later than the Availability Date (as
defined below), earning statements of the Trust (which need not be audited)
complying with Section 11(a) of the Act and the Rules and Regulations (including
Rule 158) and covering a period of at least twelve consecutive months beginning
after the Effective Date which will satisfy the provisions of Section 11(a) of
the Act. For the purposes of the preceding sentence, the "Availability Date"
means the 45th day after the end of the Trust's fourth fiscal quarter following
the fiscal quarter that includes the Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Trust's fiscal year, "Availability
Date" means the 90th day after the end of such fourth fiscal quarter.
(g) Advanta will endeavor, in cooperation with the Underwriter, to
qualify the Notes for sale and the determination of their eligibility for
investment under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriter may designate, and will
maintain or cause to be maintained such qualifications in effect for as long as
may be required for the distribution of the Notes. Advanta will file or cause
the filing of such statements and reports as may be required by the laws of each
jurisdiction in which the Certificates have been qualified as above provided.
(h) Advanta will not, directly or indirectly, without the
Underwriter's prior consent, publicly offer or sell or contract to sell or
attempt to offer, sell or dispose of any certificates or other similar
securities representing interests in or secured by the Receivables for a period
of 30 days following the commencement of the offering of the Notes to the
public.
(i) For a period from the date of this agreement until the
retirement of the Notes, Advanta Financial Services, Inc., as Servicer, will
deliver to the Underwriter, as soon as practicable, copies of each certificate,
report or notice and the annual statements of compliance delivered by Advanta
Financial Services, Inc., as Servicer, to the Trustee pursuant to Section ____
of the Pooling Agreement, the annual statement of a firm of independent public
accountants furnished to the Trustee pursuant to Section ____ of the Pooling
Agreement; and such other information concerning the Receivables, Advanta
Financial Services, Inc. or the Notes, as the Underwriter may from time to time
reasonably request.
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(j) On or before the Closing Date, Advanta shall furnish or make
available to the Underwriter or its counsel such additional documents and
information regarding Advanta Financial Services, Inc. and its affairs as the
Underwriter may from time to time reasonably request, including any and all
documentation reasonably requested in connection with their due diligence
efforts regarding information in the Prospectus and in order to evidence the
accuracy or completeness of any of the conditions contained in this Agreement.
(k) So long as any Note is outstanding, Advanta shall furnish to the
Underwriter by first-class mail as soon as practicable, all documents (A)
distributed, or caused to be distributed, by Advanta to Noteholders, (B) filed,
or caused to be filed, by Advanta with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), (C) any order of the
Commission under the Exchange Act or pursuant to a "no-action" letter from the
staff of the Commission and (D) from time to time, such other information in the
possession of Advanta concerning the Trust as the Underwriter may reasonably
request.
(l) Advanta shall apply the net proceeds from the sale of the Notes
in the manner set forth in the Prospectus.
(m) If, between the date hereof or, if earlier, the dates as of
which information is given in the Prospectus and the Closing Date, to the
knowledge of Advanta there shall have been any material change, or any
development involving a prospective material change in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of Advanta, Advanta will give prompt written notice thereof to the
Underwriter.
(n) To the extent, if any, that any rating provided with respect to
the Notes set forth in Section 6(j) hereof is conditional upon the furnishing of
documents reasonably available to Advanta or the taking of any other reasonable
actions by ▇▇▇▇▇▇▇, Advanta shall furnish such documents or take any such other
actions.
6. Conditions of the Obligations of the Underwriter. The obligations
of the Underwriter to purchase the Notes pursuant to this Agreement are subject
to the accuracy on and as of the Closing Date of the representations and
warranties on the part of Advanta herein contained, to the accuracy of the
statements of officers of Advanta made pursuant hereto, to the performance by
Advanta of all of its obligations hereunder and to the following conditions at
the Closing Date:
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(a) The Underwriter shall have received a letter, dated the date of
delivery thereof (which, if the Effective Time is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or post-effective
amendment to the Registration Statement to be filed shortly prior to the
Effective Time), from _____________________________ LLP, in form and substance
satisfactory to the Underwriter and counsel for the Underwriter, confirming that
they are independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in effect that
(i) they have performed certain specified procedures as a result of which they
have determined that certain information of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Trust and Advanta
set forth in the Registration Statement and the Prospectus), agrees with the
accounting records of the Trust and Advanta, excluding any questions of legal
interpretation, and (ii) they have performed certain specified procedures with
respect to the computer programs used to select the Receivables and to generate
information with respect to the Receivables set forth in the Registration
Statement and the Prospectus.
For purposes of this subsection (a), if the Effective Time is
subsequent to the execution and delivery of this Agreement, "Registration
Statement" shall mean the registration statement as proposed to be amended by
the amendment or post-effective amendment to be filed shortly prior to the
Effective Time, and "Prospectus" shall mean the prospectus included in such
Registration Statement. All financial statements included in material
incorporated by reference into the Prospectus shall be deemed included in the
Registration Statement for purposes of this subsection (a).
(b) If the Effective Time is not prior to the execution and delivery
of this Agreement, the Effective Time shall have occurred not later than 10:00
p.m., New York time, on the date of this Agreement or such later date as shall
have been consented to by the Underwriter. If the Effective Time is prior to the
execution and delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement.
(c) The Registration Statement shall have been declared effective by
the Commission and no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
therefor initiated or threatened by the Commission, any price-related
information previously omitted from the effective Registration
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Statement pursuant to Rule 430A under the Act shall have been included in the
Prospectus and transmitted to the Commission for filing pursuant to Rule 424
under the Act within the prescribed time period, and Advanta shall have provided
evidence satisfactory to the Underwriter of such timely filing, or a
post-effective amendment to the Registration Statement providing such
information shall have been promptly filed with the Commission and declared
effective in accordance with the requirements of Rule 430A under the Act, and
prior to the Closing Date, Advanta shall have provided evidence satisfactory to
the Underwriter of such effectiveness and there shall not have come to the
attention of the Underwriter facts that would cause the Underwriter to believe
that the Prospectus, at the time it was required to be delivered to a purchaser
of the Notes, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at such time, not misleading.
(d) The Underwriter shall have received the favorable opinion, dated
the Closing Date, of _________, counsel to Advanta, or other counsel to Advanta,
acceptable to the Underwriter and its counsel, addressed to the Underwriter and
in form and scope satisfactory to the Underwriter's counsel, to the effect that:
i) Advanta has been duly incorporated and is validly
existing as a corporation under the laws of the State of Nevada and has
full corporate power and authority to own its properties and conduct its
business as described in the Prospectus; Advanta has full corporate power
and authority to execute, deliver, and perform its obligations under this
Agreement, the Pooling Agreement, the Loan Agreement, and the Cash
Collateral Trust Agreement and to cause the Notes to be issued and to
consummate the transactions contemplated hereby and thereby.
ii) Advanta has duly authorized and executed this
Agreement, the Pooling Agreement, the Loan Agreement and the Cash
Collateral Trust Agreement and each such agreement constitutes the valid,
legal and binding obligation of Advanta enforceable against Advanta in
accordance with its terms.
iii) The execution and delivery, and performance of the
Pooling Agreement, the Cash Collateral Trust Agreement, this Agreement,
the transfer of the Receivables to the Trust, the issuance and sale of the
Notes and consummation of any other of the transactions contemplated
herein or in the Pooling Agreement do not conflict with or result in a
violation of (a) any law or regulation of the United States of America or
the State
13
of New York or Delaware, (b) the Certificate of Incorporation or By-laws
of Advanta, (c) any order, writ, judgment or decree known to such counsel
to which Advanta is a party or is subject, or (d) result in any lien,
charge or encumbrance upon any of the properties or assets of Advanta.
iv) The Notes have been duly authorized and, when executed
and authenticated in accordance with the terms of the Pooling Agreement
and delivered to and paid for by the Underwriter pursuant to this
Agreement, will be duly and validly issued and outstanding and will be
entitled to the benefits of the Pooling Agreement.
v) No consent, approval or authorization of, or
registration, declaration or filing with, any court or governmental agency
or body of the United States of America is required for the issuance of
the Notes and the sale of the Notes to the Underwriter or the consummation
of the other transactions contemplated by this Agreement, the Pooling
Agreement, the Loan Agreement, or the Cash Collateral Trust Agreement
except for (x) the filing of a Uniform Commercial Code financing statement
in the State of _______________ with respect to the transfer of the
Receivables to the Trust, (y) such as have been obtained and made under
the Act and (z) such as may be required under state securities laws.
vi) The Registration Statement was declared effective under
the Act as of the date and time specified in such opinion, the Prospectus
either was filed with the Commission pursuant to the subparagraph of Rule
424(b) specified in such opinion on the date specified therein or was
included in the Registration Statement (as the case may be), and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has been
instituted or is pending or contemplated under the Act, and the
Registration Statement and the Prospectus, and each amendment or
supplement thereof, as of their respective effective or issue dates,
complies as to form in all material respects with the requirements of the
Act and the Rules and Regulations; such counsel have no reason to believe
that the Registration Statement or any amendment thereto, as of its
Effective Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Registration Statement as of the Closing Date, or the Prospectus, as of
its issue date or as of such Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the
14
light of the circumstances under which they were made, not misleading; it
being understood that such counsel need express no opinion as to the
financial statements or other financial data contained in the Registration
Statement or the Prospectus.
vii) The conditions to the use by Advanta of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions to Form S-3, have been satisfied with respect to the
Registration Statement and the Prospectus. There are no contracts or
documents of Advanta which are required to be filed as exhibits to the
Registration Statement pursuant to the Act or the Rules and Regulations
thereunder which have not been so filed.
viii) There are no actions, proceedings or investigations
pending or threatened before any court, administrative agency or other
tribunal to which Advanta is a named party or to which its assets are
subject (A) asserting the invalidity of the Pooling Agreement, the Loan
Agreement, the Cash Collateral Trust Agreement, this Agreement or the
Notes, (B) seeking to prevent the issuance of the Notes or the
consummation by Advanta of any of the transactions contemplated by the
Pooling Agreement, the Loan Agreement, the Cash Collateral Trust Agreement
or this Agreement, (C) that might adversely affect the validity or
enforceability of the Pooling Agreement, the Loan Agreement, the Cash
Collateral Trust Agreement, this Agreement or the Notes, or (D) seeking to
adversely affect the federal income tax attributes of the Notes as
described in the Prospectus under the heading "Certain Federal Income Tax
Consequences."
ix) The Registration Statement at the time it became
effective, and any amendment thereto at the time such amendment became
effective, complied as to form in all material respects with the
applicable requirements of the Act and the Rules and Regulations.
x) The Pooling Agreement is not required to be qualified
under the Trust Indenture Act of 1939, as amended.
xi) The Trust is not required to be registered under the
1940 Act, and immediately following the issuance and sale of the Notes in
the manner contemplated by the Pooling Agreement and this Agreement, the
Trust will not be required to be so registered.
xii) The Notes, this Agreement, the Pooling Agreement and
the Cash Collateral Account conform in all
15
material respects to the respective descriptions thereof in the
Registration Statement and the Prospectus.
xiii) The statements in the Prospectus under the heading
"Certain Legal Aspects of the Receivables," "SUMMARY OF TERMS -- Certain
Legal Aspects of the Receivables," "SUMMARY OF TERMS -- Certain Federal
Tax Considerations," "Certain Federal Income Tax Consequences," "ERISA
Considerations," and "SPECIAL CONSIDERATIONS -- Certain Legal Aspects," to
the extent that they constitute matters of law or legal conclusions with
respect thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
xiv) No filing or other action, except the filing of a Uniform
Commercial Code financing statement on Form UCC-1 with the ________ [State
Department of Assessments and Taxation] naming Advanta as "debtor" and the
Trustee as "secured party," is necessary to perfect the transfer of the
Receivables and proceeds (as defined in Section 9-306 of the __________
Uniform Commercial Code) thereof against the claims of creditors of, and
transferees from, Advanta.
xv) The Receivables constitute "chattel paper" as defined
in Section 9-105 of the Uniform Commercial Code as in effect in the State
of _____________.
In addition, such counsel shall state that nothing has come to their
attention that would lead them to believe that the Registration Statement, at
the time it became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or that the Prospectus, as of its
date and as of the Closing Date, contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(e) The Underwriter shall have received the favorable opinion of
counsel to the Trustee, dated the Closing Date, addressed to the Underwriter and
in form and scope satisfactory to the Underwriter's counsel, to the effect that:
i) The Trustee has duly authorized, executed and delivered the
Pooling Agreement and the Cash Collateral Trust Agreement.
ii) The Trustee has been duly organized and is validly existing
as a ______________________ in good standing under the laws of ___________
of __________ and has full power and authority to execute and deliver
16
the Pooling Agreement and the Cash Collateral Trust Agreement and to
perform its obligations thereunder and each such Agreement constitutes the
valid, legal and binding obligation of the Trustee, enforceable against
the Trustee in accordance with its terms.
iii) The Notes have been duly executed and countersigned by the
Trustee.
iv) The execution and delivery by the Trustee of the Pooling
Agreement and the Cash Collateral Trust Agreement and the performance by
the Trustee of its duties thereunder do not conflict with or result in a
violation of (a) any law or regulation of the United States of America or
the State of ___________, (b) the charter or by-laws of the Trustee, (c)
any order, writ, judgment or decree or (d) any agreement, instrument,
order, writ, judgment or decree known to such counsel to which the Trustee
is a party or is subject.
v) No consent, approval or authorization of, or registration,
declaration or filing with, any court or governmental agency or body of
the United States of America or any state thereof is required for the
execution, delivery or performance by the Trustee of the Pooling Agreement
and the Cash Collateral Trust Agreement.
(f) The Underwriters shall have received the favorable opinion or
opinions, dated the Closing Date, of the Underwriter's counsel, _______________,
with respect to the issuance and sale of the Notes, the Registration Statement,
this Agreement, the Prospectus and such other related matters as the Underwriter
may require.
(g) The Underwriter shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, special counsel to Advanta, addressed to, and
satisfactory to, Standard & Poor's Corporation ("S&P"), ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") and the Underwriter's counsel, relating to the sale of
the Receivables to the Trustee, and such counsel to Advanta shall have consented
to reliance by the Underwriter on such opinion as though such opinion had been
addressed to the Underwriter.
(h) Advanta shall have furnished to the Underwriter a certificate
signed on behalf of Advanta by any two of the chairman of the board, the
president, any vice-chairman of the board, any executive vice president, any
senior vice president, any vice president, the treasurer, or the controller of
the Seller or the Servicer, as appropriate, dated the Closing Date, as to (i)
the accuracy of the representations and warranties of Advanta herein and in the
17
Pooling Agreement at and as of the Closing Date, (ii) the performance by Advanta
of all of its obligations hereunder to be performed at or prior to the Closing
Date and (iii) such other matters as the Underwriter may reasonably request.
(i) The Trustee shall have furnished to the Underwriter a
certificate of the Trustee, signed by one or more duly authorized officers of
the Trustee, dated the Closing Date, as to the due acceptance of the Pooling
Agreement by the Trustee and the due execution and delivery of the Notes by the
Trustee thereunder and such other matters as the Underwriter shall reasonably
request.
(j) The Notes shall have been rated "___" by S&P and "___" by
▇▇▇▇▇'▇, and such ratings shall not have been rescinded.
(k) The Underwriter shall have received from _____________________,
or other independent certified public accountants acceptable to the Underwriter,
a letter, dated as of the date of the Closing Date, delivered at such time in
form satisfactory to the Underwriter.
(l) Prior to the Closing Date the Underwriter's counsel, _________,
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Notes as herein contemplated and related proceedings or in order
to evidence the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein contained; and
all proceedings taken by Advanta in connection with the issuance and sale of the
Notes as herein contemplated shall be satisfactory in form and substance to the
Underwriter and ________________.
(m) Since the respective dates as of which information is given in
the Prospectus, there shall not have been any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of Advanta
otherwise than as set forth in the Prospectus, the effect of which is in the
Underwriter's judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Notes on
the terms and in the manner contemplated in the Prospectus or which, in the
judgment of the Underwriter, materially impairs the investment quality of the
Notes or the ability of the Servicer to service the Receivables.
(n) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, development or event involving a
prospective change, in the
18
condition (financial or other), business, properties or results of operations of
Advanta or its automobile loan business or the Cash Collateral Depositor which,
in the judgment of the Underwriter, is material and adverse and makes it
impracticable or inadvisable to proceed with the completion of the public
offering or the sale of and payment for the Notes or (ii) any downgrading in the
rating of any securities of Advanta or the Cash Collateral Depositor by any
nationally recognized statistical rating organization (as defined for purposes
of Rule 436(g) under the Act) or any public announcement that any such
organization has under surveillance or review its rating of any securities of
Advanta or the Cash Collateral Depositor (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); or (iv) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity, emergency
or change in financial markets if, in the Representative's judgment, the effect
of any such outbreak, escalation, declaration, calamity, emergency or change
makes it impractical or inadvisable to proceed with completion of the sale of
and payment for the Notes.
(o) The Cash Collateral Trust Agreement and the Loan Agreement shall
have been duly authorized, executed and delivered by each party thereto; on or
prior to the Closing Date, the Cash Collateral Trustee shall have established
the Cash Collateral Account pursuant to the Cash Collateral Trust Agreement and
the Cash Collateral Depositor and Advanta shall have deposited the Initial Cash
Collateral Amount in the Cash Collateral Account pursuant to the Loan Agreement;
and all fees due and payable to the Cash Collateral Depositor as of the Closing
Date shall have been paid in full by Advanta on or prior to the Closing Date.
(p) The Underwriter shall have received evidence satisfactory to the
Underwriter and its counsel that (i) on or before the Closing Date, UCC-1
financing statements have been filed in the offices of the __________________
[State Department of Assessments and Taxation], reflecting the interest of the
Trust in the Receivables and the proceeds thereof and (ii) the Trust will have a
first priority perfected security interest in the amounts on deposit from time
to time in the Cash Collateral Account.
(q) The Underwriter shall have received an opinion from
______________ counsel for the Cash Collateral Depositor, addressed to the
Underwriter, dated the Closing Date and
19
reasonably satisfactory in form and substance to the Underwriter and its
counsel, to the effect that:
i) the Cash Collateral Depositor is a corporation duly
organized and validly existing under the laws of ______________ and has
the corporate power and authority under the laws of ______________ to
execute, deliver and perform its obligations under the Cash Collateral
Trust Agreement and the Loan Agreement through its New York branch (the
"Branch"), including the obligation of the Cash Collateral Depositor to
deposit the Initial Cash Collateral Amount in the Cash Collateral Account
in accordance with the terms of the Loan Agreement;
ii) each of the Cash Collateral Trust Agreement and the Loan
Agreement have been duly authorized and, when executed and delivered by
the Cash Collateral Depositor through the Branch, each as the Cash
Collateral Trust Agreement and the Loan Agreement, including the
obligation of the Cash Collateral Depositor, acting through the Branch, to
deposit the Initial Cash Collateral Amount in the Cash Collateral Account
in accordance with the terms of the Loan Agreement, will constitute the
valid and legally binding obligation of the Cash Collateral Depositor
enforceable against the Branch in accordance with its terms subject, as to
enforcement, to (A) bankruptcy, insolvency, reorganization, liquidation,
readjustment of debt and other laws and equitable principles relating to
or affecting the enforcement of creditors' rights generally as they may be
applied in the event of the bankruptcy, insolvency, reorganization,
liquidation or readjustment of debt of, or the appointment of a receiver
with respect to the property of, or a similar event applicable to, the
Branch, and (B) the effect of any moratorium or similar occurrence
affecting the Branch;
iii) each of the Cash Collateral Trust Agreement and the Loan
Agreement, including the obligation of the Cash Collateral Depositor,
acting through the Branch, to deposit the Initial Cash Collateral Amount
in the Cash Collateral Account in accordance with the terms of the Loan
Agreement, is enforceable in accordance with its terms against the Cash
Collateral Depositor's head office in ___________ if the Branch defaults
in its obligations thereunder, subject, as to enforcement, to (A)
bankruptcy, insolvency, reorganization, liquidation, readjustment of
debt and other laws and equitable principles relating to or affecting
the enforcement of creditors' rights generally as they may be applied in
the event of the bankruptcy, insolvency, reorganization, liquidation or
readjustment of debt of, or the
20
appointment of a receiver with respect to the property of, or a similar
event applicable to, the Cash Collateral Depositor, and (B) the effect of
any moratorium or similar occurrence affecting the Cash Collateral
Depositor; and
iv) any judgment for a fixed and definite sum of money
rendered by the courts of the State of New York or the United States of
America located in the State of New York, in respect of any suit, action
or other proceeding against the Cash Collateral Depositor for the
enforcement of the Cash Collateral Trust Agreement or the Loan Agreement
will, upon request, be declared valid and enforceable against the Cash
Collateral Depositor by the competent courts of _________, usually without
reexamination of the matters adjudicated upon, if such judgment is not
subject to appeal and is enforceable according to the laws of the State of
New York or United States Federal law. However, such judgment will not be
enforced if its contents are in violation of fundamental principles of the
____________ legal system (order public) or if it has been rendered in
violation of such principles. In addition, enforcement may be refused if
the foreign state does not observe reciprocity. According to the approach
of ____________ courts, reciprocity is affirmed with regard to judgments
of United States Federal courts and courts of the State of New York. As a
general rule it can be stated that judgments of United States Federal
courts and courts of the State of New York are enforceable in
_________________, and such counsel knows of no reason why such judgments
would be a violation of the fundamental principles of the ____________
legal system.
(r) The Underwriter shall have received an opinion from __________,
special United States counsel for the Cash Collateral Depositor, addressed to
the Underwriter, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriter and its counsel, to the effect that:
i) the Cash Collateral Depositor is licensed by the
Superintendent of Banks of the State of New York to maintain a branch for
the conduct of a banking business at ___________________________________,
ii) no authorization, consent or approval of or by any
governmental authority of the United States or the State of New York is
necessary for the execution, delivery and performance by the Branch as the
Cash Collateral Depositor of the Cash Collateral Trust Agreement and the
Loan Agreement, including the obligation of the Cash Collateral Depositor,
acting through the Branch, to deposit the Initial Cash
21
Collateral Amount in the Cash Collateral Account in accordance with the
terms of the Loan Agreement, except such authorizations, consents and
approvals as are in full force and effect;
iii) each of the Cash Collateral Trust Agreement and the Loan
Agreement has been duly authorized, executed and delivered by the Branch;
and
iv) each of the Cash Collateral Trust Agreement and the Loan
Agreement, including the obligation of the Cash Collateral Depositor,
acting through the Branch, to deposit the Initial Cash Collateral Account
in the Cash Collateral Account in accordance with the terms of the Loan
Agreement, constitutes the legal, valid and binding obligation of the Cash
Collateral Depositor and the Branch, enforceable against the Cash
Collateral Depositor and the Branch in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, liquidation, moratorium, readjustment of debt
or other similar laws affecting the enforcement of creditors' rights
generally, as such laws may be applied in the event of a bankruptcy,
insolvency, reorganization, liquidation, moratorium, readjustment of debt
or other similar proceedings of or affecting the Cash Collateral Depositor
or the Branch, and subject to the application of general principles of
equity regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(s) The Underwriter shall have received the favorable opinion of
counsel to the Cash Collateral Trustee, addressed to the Underwriter, dated the
Closing Date and reasonably satisfactory in form and substance to the
Underwriter and its counsel, to the effect that:
i) the Cash Collateral Trustee is an association duly
organized, validly existing and in good standing as a licensed national
banking association under the laws of the United States, and has the power
and authority (corporate and other) to enter into, and to take all action
required of it under the Cash Collateral Trust Agreement and the Loan
Agreement; and
ii) the Cash Collateral Trust Agreement and the Loan Agreement
have each been duly authorized, executed and delivered by the Cash
Collateral Trustee and each constitutes a legal, valid and binding
agreement of the Cash Collateral Trustee, enforceable in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency, liquidation, reorganization, moratorium or other similar laws
affecting the enforcement of rights of creditors against the Cash
22
Collateral Trustee generally, and the application of general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(t) The Underwriter shall have received from the Cash Collateral
Trustee a certificate dated the Closing Date of an authorized officer of the
Cash Collateral Trustee reasonably acceptable to the Underwriter in which such
officer shall state that, to the best of such officer's knowledge:
i) the execution and delivery of the Cash Collateral Trust
Agreement and the Loan Agreement by the Cash Collateral Trust and the
performance by the Cash Collateral Trustee of the terms thereof do not
conflict with or result in a violation of (A) the charter or by-laws of
the Cash Collateral Trustee or (B) any law of the United States of America
or the State of New York or any regulation governing the banking or trust
powers of the Cash Collateral Trustee; and
ii) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of New York having jurisdiction over the banking or trust powers of
the Cash Collateral Trustee is required in connection with its execution
and delivery of the Cash Collateral Trust Agreement and the Loan Agreement
or the performance by the Cash Collateral Trustee of the terms of the Cash
Collateral Trust Agreement and the Loan Agreement.
(u) Advanta will provide or cause to be provided to the
Representative such conformed copies of such opinions, certificates, letters and
documents being provided pursuant hereto and such further information,
certificates and documents as the Underwriter may reasonably request. The
Underwriter may in its sole discretion waive compliance with any conditions to
the obligations of the Underwriter hereunder.
If any condition specified in this Section 6 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the Underwriter by notice to Advanta at any time at or prior to the Closing
Date, and such termination shall be without liability of any party to any other
party except as provided in Section 7.
7. Payment of Expenses. Advanta agrees to pay all expenses incident
to the performance of its obligations under this Agreement, and will reimburse
the Underwriter (if and to the extent incurred by them) for any filing fees and
other expenses (including fees and disbursements of counsel), including without
limitation those related to (i) the filing
23
of the Registration Statement and all amendments thereto, (ii) the duplication
and delivery to the Underwriter, in such quantities as the Underwriter may
reasonably request, of copies of this Agreement, (iii) the preparation, issuance
and delivery of the Notes and the determination of their eligibility for
investment under the laws of such jurisdictions as the Underwriter designates,
(iv) the fees and disbursements of __________________, counsel for Advanta, 50%
of the fees of ________________, special counsel for Advanta, and the fees and
disbursements of __________, accountants of Advanta, (v) the qualification of
the Notes under securities and Blue Sky laws and the determination of the
eligibility of the Notes for investment in accordance with the provisions of
Section 5(g), including filing fees and disbursements and the fees of
_______________, the Underwriter's counsel, in connection therewith and in
connection with the preparation of any Blue Sky Survey, (vi) the printing and
delivery to the Underwriter, in such quantities as the Underwriter may
reasonably request, hereinabove stated, of copies of the Registration Statement
and Prospectus and all amendments and supplements thereto, and of any Blue Sky
Survey, (vii) for the filing fee of the National Association of Securities
Dealers, Inc., (viii) the duplication and delivery to the Underwriter in such
quantities as the Underwriter may reasonably request, of copies of the Pooling
Agreement and the Collateral Trust Agreement, (ix) the fees charged by
nationally recognized statistical rating agencies for rating the Notes, (x) the
fees and expenses of the Trustee and its counsel, (xi) the fees and expenses of
the Cash Collateral Trustee and its counsel, (xii) the fees and expenses of the
Cash Collateral Depositor and its counsel.
8. Indemnification. Advanta agrees to indemnify and hold harmless
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Act or the Exchange Act, as follows:
(a) Advanta will indemnify and hold harmless the Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (in the case of the Prospectus or any amendment or
supplement thereto, in the light of the circumstances under which they were
made) and will reimburse the Underwriter for any legal or other expenses
reasonably incurred by such
24
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that Advanta will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to Advanta by the Underwriter specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(b) below.
(b) The Underwriter will indemnify and hold harmless Advanta against
any losses, claims, damages or liabilities to which Advanta may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (in the case of the Prospectus, in the light of the circumstances
under which they were made), in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to Advanta by the Underwriter specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by Advanta in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by the Underwriter consists of
(i) the following information in the Prospectus furnished on behalf of the
Underwriter: [the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Underwriter, the legend concerning overallotments
and stabilizing on the inside front cover page and the concession and
reallowance figures appearing in the third paragraph under the caption
"Underwriting."]
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than
25
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
9. Contribution. (a) If the indemnification provided for in Section
8 is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) of Section 8 above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in such subsection (a)
or (b) (i) in such proportion as is appropriate to reflect the relative benefits
received by Advanta on the one hand and the Underwriter on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of Advanta on the one hand and the Underwriter on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by Advanta on the one hand and
the Underwriter on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
Advanta bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by Advanta or the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or
26
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this Section 9 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 9. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(b) The obligations of Advanta under this Section 9 shall be in
addition to any liability which Advanta may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Underwriter within the meaning of the Act; and the obligations of the
Underwriter under this Section 9 shall be in addition to any liability which the
Underwriter may otherwise have and shall extend, upon the same terms and
conditions, to each director of Advanta, to each officer of Advanta who has
signed the Registration Statement and to each person, if any, who controls
Advanta within the meaning of the Act.
The Underwriter, with respect to the Notes, agrees that it will not
prepare or distribute to any proposed purchaser of any Notes any Derived
Information (as such term is hereinafter defined), unless it shall have provided
to the Servicer a copy of such Derived Information a sufficient time prior to
its proposed distribution to permit the Servicer to review and comment upon such
Derived Information, and the Underwriter shall have obtained the prior written
consent of the Servicer thereto following its review. In addition, the
Underwriter agrees to provide the Servicer, no later than the date on which the
Prospectus is required to be filed pursuant to Rule 424, with a definitive copy
of its Derived Information with respect to such Notes provided by the
Underwriter for filing with the Commission on Form 8-K.
The Underwriter agrees, assuming all CompaniesProvided Information
(as such term is hereinafter defined) provided by Advanta is accurate and
complete in all material respects, to indemnify and hold harmless Advanta, each
of Advanta's officers and directors and each person who controls Advanta within
the meaning of the Act against any and all losses, claims, damages or
liabilities, joint or several, to which they may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement of a
material fact contained in the Derived Information provided by the Underwriter,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
27
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by him,
her or it in connection with investigating or defending or preparing to defend
any such loss, claim, damage, liability or action as such expenses are incurred.
The obligations of the Underwriter under this Section 8 shall be in addition to
any liability which the Underwriter may otherwise have.
For purposes of this Section 9, the term "Derived Information" means
such portion, if any, of the information delivered to Advanta for filing with
the Commission on Form 8-K as:
i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
ii) does not constitute Companies-Provided Information; and
iii) is not information provided by the Cash Collateral
Depositor or the Cash Collateral Trustee.
"Companies-Provided Information" means any computer tape furnished to the
Underwriter by Advanta concerning the Receivables assigned to the Trust.
Notwithstanding the provisions of Sections 8 and 9, the Underwriter
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Notes underwritten by the Underwriter and
distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay in respect of
such losses, liabilities, claims, damages and expenses. For purposes of this
Section 9, each person, if any, who controls the Underwriter within the meaning
of the Act or the Exchange Act shall have the same rights to contribution as the
Underwriter and each director of Advanta, each officer of Advanta who signed the
Registration Statement, and each person, if any, who controls Advanta within the
meaning of the Act or the Exchange Act shall have the same rights to
contribution as Advanta.
10. Default of Underwriter. If the Underwriter defaults in its
obligations to purchase Notes hereunder on the Closing Date and the aggregate
principal amount of Notes that such defaulting Underwriter has agreed but failed
to purchase does not exceed 10% of the total principal amount of Notes that the
Underwriter is obligated to purchase on such Closing Date, the Underwriter may
make arrangements satisfactory to Advanta for the purchase of such Notes by
other persons. If
28
the Underwriter so defaults and the aggregate principal amount of Notes with
respect to which such default occurs exceeds % of the total principal amount of
Notes that the Underwriter is obligated to purchase on such Closing Date and
arrangements satisfactory to Advanta for the purchase of such Notes by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of Advanta, except as provided in
Section 11. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of Advanta or its officers and of the Underwriter set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results thereof, made by or on
behalf of the Underwriter, Advanta or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Notes. If this Agreement is terminated or if for any reason
the purchase of the Notes by the Underwriter is not consummated, Advanta shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 7 and the respective obligations of Advanta and the Underwriter pursuant
to Section 8 and 9 shall remain in effect, and if any Notes have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 and 6 shall also remain in effect. If the purchase of the Notes
by the Underwriter is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 10 or the occurrence of
any event specified in clause (ii), (iv) or (v) of Section 6(n), Advanta will
reimburse the Underwriter for all out-of-pocket expenses (including fees and
disbursements of _______________, Underwriter's counsel) reasonably incurred by
them in connection with the offering of the Notes.
12. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the Underwriter shall be
directed to the address set forth on the first page hereof, or sent by facsimile
machine which produces an electronic confirmation of receipt to ____________,
attention: ________________________________________. Notices to Advanta shall be
directed to Advanta Auto Finance Corporation 199_-_ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or sent by facsimile machine which
29
produces an electronic confirmation of receipt to _____________, attention:
______________________________.
13. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriter and ▇▇▇▇▇▇▇, and their respective successors.
Nothing expressed or mentioned in this Agreement is intended nor shall it be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties and their respective successors and such
controlling persons and officers and directors and their heirs and legal
representatives (to the extent of their rights as specified herein and therein)
and except as provided above for the benefit of no other person, firm or
corporation. No purchaser of Notes from the Underwriter shall be deemed to be a
successor by reason merely of such purchase.
14. GOVERNING LAW AND TIME; CONSENT TO JURISDICTION. THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND SHALL BE CONSTRUED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Advanta HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE
COURTS IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
15. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but together they shall
constitute but one instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
you and Advanta in accordance with its terms.
Very truly yours,
ADVANTA AUTO FINANCE CORPORATION
30
By: _______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
___________________________,
as the Underwriter.
By: __________________________________
Name:
Title:
31
Schedule 1
Underwriting
Class -
-----------------------
Proceeds to
Advanta
Purchase (includes
Price Principal accrued Accrued
Underwriters Percentage Amount interest) Interest
------------ ---------- --------- ------------ --------
$ $
