1
EXHIBIT 1.1
OH&S DRAFT
5/7/99
FORM OF UNDERWRITING AGREEMENT
1999
-------- --,
[Underwriter]
Ladies and Gentlemen:
1. Introduction. Advanta Leasing Receivables Corp. VIII ("ALRC VIII") and
Advanta Leasing Receivables Corp. IX ("ARLC IX" and, together with ALRC VIII,
the "Series Obligors") propose to issue the $___________ aggregate principal
amount of Equipment Receivables Asset-Backed Notes, Series 1999-1, Class A (the
"Class A Notes"), $____________ aggregate principal amount of Equipment
Receivables Asset-Backed Notes, Series 1999-1, Class B (the "Class B Notes"),
the $___________ aggregate principal amount of Equipment Receivables
Asset-Backed Notes, Series 1999-1, Class C (the "Class C Notes" and, together
with the Class A Notes and Class B Notes, the "Offered Notes"). The Series
Obligors also propose to issue the $___________ aggregate principal amount of
Equipment Receivables Asset-Backed Notes, Series 1999-1, Class D (the "Class D
Notes" and, together with the Offered Notes, the "Notes"). The Notes are to be
issued pursuant to Advanta Business Receivables Master Facility Agreement, dated
as of______ ___, 1999 (the "Master Agreement"), among the Series Obligors, as
issuers, Advanta Business Services Corp. ("ABS"), as servicer (in such capacity,
the "Servicer"), and _____________, as trustee (the "Trustee"), and the Series
1999-1 Supplement thereto, dated as of ________ _____, 1999 (the "Series 1999-1
Supplement" and, together with the Master Agreement, the "Agreement"), also
among the Series Obligors, ABS, as servicer, and the Trustee. Any capitalized
terms used herein but not defined shall have the meaning set forth in the
Agreement.
ABS and the Series Obligors hereby agree with _____________ (the
"Representative"), as representative of the underwriters attached on Schedule A
hereto (the "Underwriters") as follows:
2. Representations and Warranties of ALRC VIII. ALRC VIII represents and
warrants to, and agrees with, the Underwriters that:
(a) ALRC VIII has all requisite corporate power, authority and legal
right to own its property and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this underwriting agreement (the
"Underwriting Agreement"), the Notes, and each of the Master Agreement, the
Series 1999-1 Supplement, the Master Contribution and Sale Agreement, dated as
of_________ _____, 1999 (the "Master Contribution Agreement"), among ABS, ALRC
VIII and ALRC IX, and the Series 1999-1 Contribution Agreement Supplement, dated
as of______ ____, 1999, among ABS, ALRC VIII and ALRC IX (the "Series 1999-1
Contribution Agreement
2
Supplement" and, together with the Master Agreement, the Series 1999-1
Supplement and the Master Contribution Agreement, the "Transaction Documents").
(b) The execution and delivery of the Underwriting Agreement, the
Notes and each of the Transaction Documents, the incurrence of the obligations
herein and therein set forth and the consummation of the transactions
contemplated hereunder and thereunder have been duly authorized by the Board of
Directors of ALRC VIII and all other necessary action has been taken.
(c) The Underwriting Agreement has been duly authorized and validly
executed and delivered by ALRC VIII.
(d) Each of the Transaction Documents will be executed and delivered
by ALRC VIII on or before the Closing Date, and when executed and delivered by
the other parties thereto, will constitute a valid and binding agreement of ALRC
VIII, enforceable against ALRC VIII in accordance with its terms, except to the
extent that (i) the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, receivership or other
similar laws now or hereafter in effect affecting the enforcement of creditors'
or other obligees' rights in general, (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (iii) certain remedial provisions of the Agreement may be
unenforceable in whole or in part under the Uniform Commercial Code (the "UCC"),
but the inclusion of such provisions does not render the other provisions of the
Agreement invalid and, notwithstanding that such provisions may be unenforceable
in whole or in part, the Trustee, on behalf of the Noteholders, will be able to
enforce the remedies of a secured party under the UCC.
(e) The Notes will be issued pursuant to the terms of the Agreement
and, when executed by ALRC VIII and ALRC IX and authenticated by the Trustee in
accordance with the Agreement and, with respect to the Offered Notes only,
delivered pursuant to the Underwriting Agreement, will be validly issued and
outstanding and entitled to the benefits of the Agreement. The Notes will be in
all material respects in the form contemplated by the Agreement and will conform
to the description thereof contained in the Prospectus (as defined herein) and
Registration Statement (as defined herein), each as amended or supplemented.
(f) ALRC VIII is not in violation of any requirement of law or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
lease or other instrument to which it is a party or by which it is bound or to
which any of its property is subject, which violations or defaults separately or
in the aggregate would have a material adverse effect on ALRC VIII.
(g) Neither the issuance and sale of the Offered Notes, nor the
execution and delivery by ALRC VIII of the Underwriting Agreement, the Notes or
the Transaction Documents, nor the incurrence by ALRC VIII of the obligations
herein and therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment of the terms hereof or
thereof does or will (i) violate any requirement of law presently in effect,
applicable to it or its properties or by which it or its properties are or may
be bound or affected, (ii)
2
3
conflict with, or result in a breach of, or constitute a default under, any
indenture, contract, agreement, deed, lease, mortgage or instrument to which it
is a party or by which it or its properties are bound, or (iii) result in the
creation or imposition of any Lien upon any of its property or assets, except
for those encumbrances created under the Agreement.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by ALRC VIII of the Underwriting Agreement, the
Notes or the Transaction Documents, or to the consummation of the transactions
contemplated hereunder and thereunder, or to the fulfillment of the terms hereof
and thereof have been or will have been obtained on or before the Closing Date.
(i) All actions required to be taken by ALRC VIII as a condition to
the offer and sale of the Offered Notes as described herein or the consummation
of any of the transactions described in the Prospectus and Registration
Statement have been or, prior to the Closing Date, will be taken.
(j) The Agreement has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
(k) The representations and warranties made by ALRC VIII in the
Agreement and made in any Officer's Certificate of ALRC VIII delivered pursuant
to the Agreement will be true and correct at the time made and on and as of the
Closing Date as if set forth herein.
(1) ALRC VIII agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Contracts,
except as provided in the Agreement, and agrees to take all action required by
the Agreement in order to maintain the security interest in the Contracts
granted pursuant to the Agreement.
(m) A registration statement on Form S-l (No. __________), including a
form of prospectus and such amendments thereto as may have been required to the
date hereof, relating to the Offered Notes and the offering thereof in
accordance with the Securities Act of 1933, as amended (the "Act"), has been
filed with, and has been declared effective by, the Securities and Exchange
Commission (the "Commission"). If any post-effective amendment to such
registration statement has been filed with the Commission prior to the execution
and delivery of the Underwriting Agreement, the most recent such amendment has
been declared effective by the Commission. For purposes of the Underwriting
Agreement, "Effective Time" means the date and time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission, and "Effective Date" means the
date of the Effective Time. Such registration statement, as amended at the
Effective Time, is hereinafter referred to as the "Registration Statement." The
Prospectus, together with any amendment thereof or supplement thereto, are
hereinafter referred to as the "Prospectus."
(n) On the Effective Date, the Registration Statement conformed in all
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder (the
3
4
"Rules and Regulations") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and on the date of the
Underwriting Agreement, the Registration Statement and the Prospectus conform,
and at the time of filing of the Prospectus pursuant to Rule 424(b) the
Registration Statement and the Prospectus will conform, in all respects with the
requirements of the Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from either of such
documents based upon written information furnished to ALRC VIII by the
Underwriters specifically for use therein.
(o) There has not been any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of ALRC VIII
from _______ ____,1999.
3. Representations and Warranties of ALRC IX. ALRC IX represents and
warrants to, and agrees with, the Underwriters that:
(a) ALRC IX has all requisite corporate power, authority and legal
right to own its property and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under the Underwriting Agreement, the Notes
and each of the Transaction Documents.
(b) The execution and delivery of the Underwriting Agreement, the
Notes and each of the Transaction Documents, the incurrence of the obligations
herein and therein set forth and the consummation of the transactions
contemplated hereunder and thereunder have been duly authorized by the Board of
Directors of ALRC LX and all other necessary action has been taken.
(c) The Underwriting Agreement has been duly authorized and validly
executed and delivered by ALRC IX.
(d) Each of the Transaction Documents will be executed and delivered
by ALRC IX on or before the Closing Date, and when executed and delivered by the
other parties thereto, will constitute a valid and binding agreement of ALRC IX
enforceable against ALRC IX in accordance with its terms, except to the extent
that (i) the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, receivership or other similar laws now
or hereafter in effect affecting the enforcement of creditors' or other
obligees' rights in general, (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and (iii) certain remedial provisions of the Agreement may be
unenforceable in whole or in part under the UCC, but the inclusion of such
provisions does not render the other provisions of the Agreement invalid and,
notwithstanding that such provisions may be unenforceable in whole or in part,
the Trustee, on behalf of the Noteholders, will be able to enforce the remedies
of a secured party under the UCC.
4
5
(e) The Notes will be issued pursuant to the terms of the Agreement
and, when executed by ALRC VIII and ALRC IX and authenticated by the Trustee in
accordance with the Agreement and, with respect to the Offered Notes only,
delivered pursuant to the Underwriting Agreement, will be validly issued and
outstanding and entitled to the benefits of the Agreement. The Notes will be in
all material respects in the form contemplated by the Agreement and will conform
to the description thereof contained in the related Prospectus (as defined
herein) and Registration Statement (as defined herein), each as amended or
supplemented.
(f) ALRC IX is not in violation of any requirement of law or in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust,
lease or other instrument to which it is a party or by which it is bound or to
which any of its property is subject, which violations or defaults separately or
in the aggregate would have a material adverse effect on ALRC IX.
(g) Neither the issuance and sale of the Offered Notes, nor the
execution and delivery by ALRC IX of the Underwriting Agreement, the Notes or
the Transaction Documents, nor the incurrence by ALRC IX of the obligations
herein and therein set forth, nor the consummation of the transactions
contemplated hereunder or thereunder, nor the fulfillment of the terms hereof or
thereof does or will (i) violate any requirement of law presently in effect,
applicable to it or its properties or by which it or its properties are or may
be bound or affected, (ii) conflict with, or result in a breach of, or
constitute a default under, any indenture, contract, agreement, deed, lease,
mortgage or instrument to which it is a party or by which it or its properties
are bound, or (iii) result in the creation or imposition of any Lien upon any of
its property or assets, except for those encumbrances created under the
Agreement.
(h) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any other governmental
agency, board, commission, authority, official or body required in connection
with the execution and delivery by ALRC IX of the Underwriting Agreement, the
Notes or the Transaction Documents, or to the consummation of the transactions
contemplated hereunder and thereunder, or to the fulfillment of the terms hereof
and thereof have been or will have been obtained on or before the Closing Date.
(i) All actions required to be taken by ALRC IX as a condition to the
offer and sale of the Offered Notes as described herein or the consummation of
any of the transactions described in the Prospectus and Registration Statement
have been or, prior to the Closing Date, will be taken.
(j) The Agreement has been qualified under the Trust Indenture Act.
(k) The representations and warranties made by ALRC IX in the
Agreement and made in any Officer's Certificate of ALRC IX delivered pursuant to
the Agreement will be true and correct at the time made and on and as of the
Closing Date as if set forth herein.
(1) ALRC IX agrees it has not granted, assigned, pledged or
transferred and shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest in, the Contracts,
except as provided in the Agreement, and agrees to take all action
5
6
required by the Agreement in order to maintain the security interest in the
Contracts granted pursuant to the Agreement.
(m) The Registration Statement (No. ), including a form of
prospectus and such amendments thereto as may have been required to the date
hereof, relating to the Notes and the offering thereof in accordance with the
Act, has been filed with, and has been declared effective by, the Commission. If
any post-effective amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of the Underwriting
Agreement, the most recent such amendment has been declared effective by the
Commission.
(n) On the Effective Date, the Registration Statement conformed in all
respects to the requirements of the Act and the Rules and Regulations of the
Commission and did not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and on the date of the Underwriting
Agreement, the Registration Statement and the Prospectus conform, and at the
time of filing of the Prospectus pursuant to Rule 424(b) the Registration
Statement and the Prospectus will conform, in all respects with the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from either of such documents based upon
written information furnished to ALRC IX by the Underwriters specifically for
use therein.
(o) There has not been any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of ALRC IX from
________ ____,1999.
4. Purchase, Sale, Payment and Delivery of the Offered Notes. (a) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Series Obligors
agree to sell to the Underwriters, and the Underwriters agree to purchase from
the Series Obligors, the Offered Notes, each Underwriter to purchase the amounts
shown on Schedule A hereto at the prices set forth on such Schedule A. The
Offered Notes will settle without accrued interest.
(b) The Series Obligors will deliver the Offered Notes to you against
payment of the purchase price in immediately available funds, drawn to the order
of the Series Obligors, at the office of Orrick, Herrington & Sutcliffe LLP,
[666 Fifth Avenue, New York, New York 10103] at 10:00 a.m., New York City time,
on ______ ____ 1999, or at such other time not later than seven full business
days thereafter as you and ABS determine, such time being herein referred to as
the "Closing Date." Each of the Offered Notes so to be delivered shall be
represented by one or more definitive Offered Notes registered in the name of
Cede & Co., as nominee for The Depository Trust Company. The Series Obligors
shall make such definitive Offered Notes representing the Offered Notes
available for inspection by the Underwriters at the office at which the Offered
Notes are to be delivered no later than five hours before the close of business
in New York City on the business day prior to the Closing Date.
6
7
5. Offering by Underwriters. It is understood that after the
Effective Date, the Underwriters propose to offer the Offered Notes for sale to
the public (which may include selected dealers) as set forth in the Prospectus.
6. Certain Agreements of the Series Obligors. The Series Obligors
agree with the Underwriters that:
(a) The Series Obligors will not file any amendment of the
Registration Statement with respect to the Offered Notes or supplement to the
Prospectus unless a copy has been furnished to you for your review a reasonable
time prior to the proposed filing thereof or to which you shall reasonably
object to in writing. The Series Obligors will advise you promptly of (i) the
effectiveness of any amendment or supplementation of the Registration Statement
or Prospectus, (ii) any request by the Commission for any amendment or
supplementation of the Registration Statement or the Prospectus or for any
additional information, (iii) the receipt by the Series Obligors of any
notification with respect to the suspension of qualification of the Offered
Notes for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purposes and (iv) the institution by the Commission of any
stop order proceeding in respect of the Registration Statement, and will use
their best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Series Obligors promptly will prepare and
file with the Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such compliance. Neither
your consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(c) As soon as practicable, the Series Obligors will make generally
available to the Noteholders an earnings statement or statements of the Series
Obligors covering a period of at least 12 months beginning after the Effective
Date which will satisfy the provisions of Section 11(a) of the Act and Rule 158
of the Commission promulgated thereunder.
(d) The Series Obligors will furnish to you copies of the Registration
Statement (one of which will be signed and will include all exhibits), the
Prospectus and all amendments and supplements to such documents, in each case as
soon as available and in such quantities as you reasonably request.
(e) The Series Obligors will endeavor to qualify the Offered Notes for
sale under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request and the determination of the eligibility for investment of
the Offered Notes under the laws of such jurisdictions as you may designate and
will continue such qualifications in effect so long as required for the
distribution of the Offered Notes; provided, however, that none of ABS, ALRC
7
8
VIII or ALRC IX shall be obligated to qualify to do business in any jurisdiction
where such qualification would subject ABS, ALRC VIII or ALRC IX, as the case
may be, to general or unlimited service of process in any jurisdiction where it
is not now so subject.
(f) For a period from the date of the Underwriting Agreement until the
retirement of the Offered Notes, ABS, as Servicer, will furnish to you copies of
each certificate and the annual statements of compliance delivered to the
Trustee pursuant to Section [6.07] of the Master Agreement and the annual
independent certified public accountant's servicing reports furnished to the
Trustee pursuant to Section [6.08] of the Master Agreement, by first class mail
as soon as practicable after such Offered Notes, statements and reports are
furnished to the Trustee.
(g) So long as any Offered Note is outstanding, the Series Obligors
will furnish to you, by first-class mail as soon as practicable (i) all
documents concerning the Offered Notes distributed by ABS to Noteholders, or
filed with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), (ii) any order of the Commission under the Act or
the Exchange Act in regard to the Series Obligors or to ABS, or pursuant to a
"no action" letter obtained from the staff of the Commission by the Series
Obligors or ABS and affecting the Series Obligors or ABS and (iii) from time to
time, such other information concerning the Series Obligors as you may
reasonably request.
(h) Whether or not the transactions contemplated by the Underwriting
Agreement are consummated or the Underwriting Agreement is terminated for any
reason, except a default by you hereunder, ABS will pay all expenses incident to
the performance of ABS's and the Series Obligors' obligations under the
Underwriting Agreement and will reimburse the Underwriters for [any other fees
or expenses agreed upon by ABS and the Underwriters.]
(i) To the extent, if any, that any of the ratings provided with
respect to the Offered Notes by the Rating Agencies are conditional upon the
furnishing of documents or the taking of any other actions by the Series
Obligors, the Series Obligors shall furnish such documents and take any such
other actions.
7. Conditions of the Obligations of the Underwriters. The obligation
of the Underwriters to purchase and pay for the Offered Notes will be subject to
the accuracy of the representations and warranties on the part of the Series
Obligors herein, to the accuracy of the statements of officers of the Series
Obligors made pursuant to the provisions hereof, to the performance by the
Series Obligors of their obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of the Underwriting Agreement, you shall
have received a letter, dated the date of the Underwriting Agreement, of
[independent accountants], confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder, substantially in the form heretofore agreed to and
otherwise in form and in substance satisfactory to you and your counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 6(a) of the Underwriting
Agreement; and, prior to the
8
9
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Series Obligors or you, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of the Underwriting
Agreement, there shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Series Obligors, ABS or Advanta Corp. which, in your judgment,
materially impairs the investment quality of the Offered Notes; (ii) any
downgrading in the rating of any debt securities of the Series Obligors, ABS or
Advanta Corp. by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
such debt securities (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating), (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the Series
Obligors, ABS or Advanta Corp. on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by federal, Delaware or New York
authorities; or (v) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in your
judgment, the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of the
sale of and payment for the Offered Notes.
(d) You shall have received an opinion, dated the Closing Date, of
Cole Silver, General Counsel for ABS and/or Woodburn and Wedge, special Nevada
counsel, to the effect that:
(i) ABS is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Such opinion shall
be based solely upon the review of a certificate issued by the Secretary
of State of the State of Delaware.
(ii) ABS is an active corporation authorized to do business and
in good standing in the State of New Jersey. Such opinion shall be based
solely upon the review of a "Short Form Standing" certificate issued by
the Secretary of State of the State of New Jersey.
(iii) Each of ALRC VIII and ALRC IX is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Nevada. Such opinion shall be based solely upon the review of a
"Certificate of Existence with Status in Good Standing" issued by the
Secretary of State of the State of Nevada.
(iv) Each of ABS, ALRC VIII and ALRC IX has taken all necessary
corporate action to authorize the execution and delivery of each of the
Transaction Documents to which it is a party and the performance of its
obligations thereunder.
(v) The execution and delivery of each of the Transaction
Documents to which ABS, ALRC VIII or ALRC IX is a party, and its
respective performance of its
9
10
obligations thereunder, will not (i) contravene, or constitute a default
under, any provision of applicable law or regulation or of its
certificate (or articles) of incorporation or bylaws or of any agreement,
judgment, injunction, order, decree or other instrument binding upon such
company. Such opinion shall be based upon actual knowledge.
(vi) Based on actual knowledge, there is no action, suit or
other proceeding against ABS, ALRC VIII or ALRC IX that would materially
adversely affect the business or financial condition of such party or
that would materially adversely affect the ability of such company to
perform its obligations under the Transaction Documents to which it is a
party.
(e) You shall have received an opinion dated the closing date,
of Orrick, Herrington & Sutcliffe LLP, special counsel to ALRC VIII, ALRC IX and
ABS, to the effect that:
(i) The Registration Statement has become effective under the
Act and the Prospectus has been filed with the Securities and Exchange
Commission pursuant to Rule 424(b) promulgated under the Act; to the best
of such counsel's knowledge, no stop order, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act; and the Registration Statement and the
Prospectus (other than the financial and statistical information therein
as to which such counsel expresses no opinion), as of its effective date,
with respect to the Registration Statement, or its date, with respect to
the Prospectus, complied as to form in all material respects with
requirements of the Act and the rules and regulations promulgated
thereunder.
(ii) Each of the Underwriting Agreement, the Transaction
Documents and the Offered Notes conform in all material respects to the
descriptions thereof contained in the Registration Statement, in the form
in which it became effective, and the Prospectus.
(iii) Each of the Underwriting Agreement, the Transaction
Documents and the Offered Notes constitutes the legal, valid and binding
obligation of ABS, ALRC VIII and ALRC IX, enforceable against each of
ABS, ALRC VIII and ALRC IX in accordance with its terms, subject to (a)
limitations imposed by bankruptcy, insolvency, reorganization,
arrangement, moratorium, receivership, conservatorship, readjustment of
debts or other laws, including those relating to fraudulent transfers or
relating to or affecting the rights of creditors generally; (b) rights to
indemnification and contribution which may be limited by applicable law
or equitable principles or otherwise unenforceable as against public
policy; (c) the unenforceability under certain circumstances of
provisions imposing penalties, forfeiture, late payment charges, or an
increase in interest rate upon delinquency in payment or to the
occurrence of any event of default; or (d) general principles of equity,
including without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, and the possible unavailability of specific
performance or injunctive relief, regardless of whether such
enforceability is considered in a proceeding at equity or at law.
10
11
(iv) The Agreement has been duly qualified under the Trust
Indenture Act of 1939, as amended.
(v) None of ABS, ALRC VIII or ALRC IX is an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(f) You shall have received from Woodburn and Wedge, special Nevada
counsel, an opinion with respect to the perfection of the security interests
granted by ALRC VIII and ALRC IX, and from ______________ an opinion with
respect to the perfection of transfers from ABS to ALRC VIII and ALRC IX.
(g) You shall have received an opinion, dated the Closing Date, from
Orrick, Herrington & Sutcliffe LLP, special counsel to ABS, ALRC VIII and ALRC
IX, with respect to federal bankruptcy matters satisfactory to the Rating
Agencies.
(h) You shall have received a certificate from ALRC VIII, dated the
Closing Date, of a Vice President or senior officer in which such officer, to
the best of his or her knowledge after reasonable investigation, shall state
that (v) the representations and warranties of ALRC VIII in the Underwriting
Agreement are true and correct in all material respects on and as of the Closing
Date, (w) ALRC VIII has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, (x) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, (y) nothing has come to such
officer's attention that would lead such officer to believe that the
Registration Statement or the Prospectus, and any amendment or supplement
thereto, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) subsequent to the date of the
Prospectus, there has been no material adverse change in the financial position
or results of operation of ALRC VIII's business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) You shall have received a certificate from ALRC IX, dated the
Closing Date, of a Vice President or senior officer in which such officer, to
the best of his or her knowledge after reasonable investigation, shall state
that (v) the representations and warranties of ALRC IX in the Underwriting
Agreement are true and correct in all material respects on and as of the Closing
Date, (w) ALRC IX has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to the Closing
Date, (x) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are threatened by the Commission, (y) nothing has come to such
officer's attention that would lead such officer to believe that the
Registration Statement or the Prospectus, and any amendment or supplement
thereto, as of its date and as of the Closing Date, contained an untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (z) subsequent to the date of the
Prospectus, there has been
11
12
no material adverse change in the financial position or results of operation of
ALRC IX's business except as set forth in or contemplated by the Prospectus or
as described in such certificate.
(j) You shall have received an opinion of _________, counsel to the
Trustee, addressed to you, dated the Closing Date, satisfactory in form and
substance to you and your counsel and substantially to the effect that:
(i) The Trustee is __________________ and is authorized
thereunder to transact the business of banking and to exercise fiduciary
powers.
(ii) Each of the Transaction Documents to which the Trustee is a
party has been duly and validly authorized, executed and delivered by the
Trustee, and constitutes the legal, valid, binding and enforceable
obligations of the Trustee, except as enforceability may be limited by
(a) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization, arrangement, or other similar laws relating to bank
insolvency (including the Federal Deposit Insurance Act, as amended by
the Financial Institutions, Reform, Recovery and Enforcement Act of 1989)
and affecting the enforcement of the rights of creditors generally,
whether now or hereinafter in effect, and (b) general principles of
equity, whether such enforcement is considered in a proceeding in equity
or at law.
(k) You shall have received evidence satisfactory to you that the
Class A Notes shall be rated "___" by _________ and _________, the Class B Notes
shall be rated no lower than "___" by _________ and ________, and the Class C
Notes shall be rated no lower than "___" by _________ and ________.
(l) The Series Obligors will furnish you with such conformed copies of
such opinions, Offered Notes, letters and documents as you reasonably request.
8. Indemnification and Contribution.
(a) ABS will indemnify and hold harmless the Underwriters against any
losses, claims, damages or liabilities, joint or several, to which the
Underwriters may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Underwriters for any legal or other expenses reasonably incurred
by the Underwriters in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the foregoing indemnity shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Notes if such untrue statement or omission or alleged untrue
statement or omission made in the Preliminary Prospectus is eliminated or
remedied in the Prospectus (as amended or supplemented if the Series Obligors
and ABS shall have furnished any amendments or supplements thereto) and, if
required by law, a copy of the Prospectus (as so
12
13
amended or supplemented) shall not have been furnished to such person at or
prior to the written confirmation of the sale of such Offered Notes to such
person; provided further, however, that ABS 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 the Series Obligors and ABS by the
Underwriters specifically for use therein.
(b) The Underwriters agree, severally and not jointly, to indemnify
and hold harmless the Series Obligors and ABS against any losses, claims,
damages or liabilities to which the Series Obligors or ABS may become subject,
under the Act or otherwise and will reimburse any legal or other expenses
reasonably incurred by the Series Obligors or ABS in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or the alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Series Obligors or ABS by the Underwriters
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Series Obligors or ABS in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. If the indemnification
provided for in this section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the Series Obligors or ABS on the one hand and
the Underwriters on the other from the offering of the Offered Notes, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above
13
14
but also the relative fault of Series Obligors and ABS on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by Series
Obligors and ABS on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) of the Offered Notes received by the Series Obligors
and ABS bear to the total underwriting discounts and commissions received by the
Underwriters with respect to the Offered Notes. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Series Obligors and ABS
or the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission with respect to the Offered Notes. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (c) shall be deemed to include any other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (c). Notwithstanding the provisions of this subsection (c), the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Notes underwritten by the
Underwriters and distributed to the public were offered to the public exceeds
the amount of any damages which the Underwriters have otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission with respect to the Offered Notes. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Series Obligors and ABS under this
Section shall be in addition to any liability which the Series Obligors and ABS
may otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls the Underwriters within the meaning of the Act; and
the obligations of the Underwriters under this section shall be in addition to
any liability which the Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Series Obligors and ABS,
to each officer of the Series Obligors and ABS who has signed the Registration
Statement and to each person, if any, who controls a Series Obligor or ABS
within the meaning of the Act.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Series Obligors and ABS or their officers and of the
Underwriters set forth in or made pursuant to the Underwriting Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of the Underwriters, the Series
Obligors and ABS or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Notes. If the Underwriting Agreement is terminated, or if for
any reason other than default by the Underwriters the purchase of the Offered
Notes by the Underwriters is not consummated, the Series Obligors and ABS shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 6 and the respective obligations of the Series Obligors and ABS and the
Underwriters pursuant to Section 8 shall remain in effect. If for any reason the
purchase of the Offered Notes by the Underwriters is not consummated other than
solely because of the occurrence of any event specified in clause (iii), (iv) or
(v) of Section 7(c) or because of the failure of the Underwriters to comply with
the terms of this
14
15
Underwriting Agreement, the Series Obligors and ABS will reimburse the
Underwriters for all out-of-pocket expenses (including ________ and ________ to
the extent set forth in Section 6(h)) reasonably incurred by them in connection
with the offering of the Offered Notes.
10. Computational Materials and ABS Term Sheets.
(a) Each Underwriter agrees to provide to the Series Obligors and ABS,
not less than two Business Days prior to the date on which the Series Obligors
and ABS are required to file the Prospectus pursuant to Rule 424(b), any
information used by it (in such written or electronic format as required by the
Series Obligors and ABS) with respect to the offering of the Offered Notes that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to Kidder, Peabody Acceptance Corporation
I, Kidder, Peabody & Co. Incorporated and Kidder Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994 (the "Kidder/PSA Letter")), that is not contained in the Prospectus
or the Preliminary Prospectus (without taking into account information
incorporated therein by reference).
(b) Each Underwriter agrees to provide to the Series Obligors and ABS,
not less than two Business Days prior to the date on which the Series Obligors
and ABS are required to file the Prospectus pursuant to Rule 424(b), any
information used by it (in such written or electronic format as required by the
Series Obligors and ABS) with respect to the offering of the Offered Notes that
constitutes "ABS Term Sheets," as defined in the Commission's No-Action Letter,
dated February 17, 1995, addressed to the Public Securities Association, that is
not contained in the Prospectus or the Preliminary Prospectus (without taking
into account information incorporated therein by reference).
(c) Each Underwriter severally agrees, assuming all information
provided by the Series Obligors and ABS is accurate and complete in all material
respects, to indemnify and hold harmless the Series Obligors and ABS, each of
the officers and directors of the Series Obligors and ABS and each person who
controls the Series Obligors and ABS within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Computational Materials or ABS Term Sheets, if any, provided by the Underwriter,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of the Underwriter under this Section 10(c) shall be in addition to
any liability that the Underwriter may otherwise have.
The procedures set forth in Sections 8(b) and 8(c) shall be equally
applicable to this Section 10(c).
15
16
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative.
12. Counterparts. The Underwriting Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same agreement.
13. Applicable Law. THE UNDERWRITING AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
14. Financial Services Act. Each Underwriter represents and warrants
to, and agrees with, the Series Obligors and ABS that (w) it has complied and
will comply with all applicable provisions of the Financial Services Act 1986
and the Public Offers of Securities Regulations 1995 (the "Regulations") with
respect to anything done by it in relation to the Offered Notes in, from or
otherwise involving the United Kingdom; (x) it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or are persons to whom the document may
otherwise lawfully be issued or passed on; (y) if it is an authorized person
under Chapter III of part I of the Financial Services Act 1986, it has only
promoted and will only promote (as that term is defined in Regulation 1.02(2) of
the Financial Services (Promotion of Unregulated Schemes Regulations 1991) to
any person in the United Kingdom the scheme described in the Prospectus if that
person is of a kind described in either section 76(2)of the Financial Services
Act 1986 or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulation 1991; and (z) it is a person of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996.
16
17
If you are in agreement with the foregoing, please sign two counterparts
hereof and return one to the Series Obligors and ABS whereupon this letter and
your acceptance shall become a binding agreement among the Series Obligors and
ABS and the Underwriters.
Very truly yours,
ADVANTA BUSINESS SERVICES CORP.
By:
----------------------
Name:
Title:
ADVANTA LEASING RECEIVABLES CORP. VIII
By:
----------------------
Name:
Title:
ADVANTA LEASING RECEIVABLES CORP. IX
By:
----------------------
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof
[Underwriter]
as Representative of the
Underwriters set forth herein
By:
------------------
Name:
Title:
18
SCHEDULE A
Principal
Amount of
Underwriters Class A Notes Price
- ------------ ------------- -----
Principal
Amount of
Underwriters Class B Notes Price
- ------------ ------------- -----
Principal
Amount of
Underwriters Class C Notes Price
- ------------ ------------- -----