1
Exhibit 1.1
$________________________
(Approximate)
Advanta Leasing Receivables Corp. VIII
Advanta Leasing Receivables Corp. IX
(ISSUERS)
EQUIPMENT RECEIVABLES ASSET-BACKED NOTES, SERIES 1999-1
UNDERWRITING AGREEMENT
August ___, 1999
First Union Capital Markets Corp.
301 South College Street, TW-9
Charlotte, North Carolina 28288-0610
Ladies and Gentlemen:
Advanta Leasing Receivables Corp. VIII ("ALRC VIII") and Advanta
Leasing Receivables Corp. IX ("ALRC IX" and, together with ALRC VIII, the
"Series Obligors") propose to issue the Equipment Receivables Asset-Backed
Notes, Series 1999-1, consisting of (i) Class A-1, Class A-2 and Class A-3 (the
"Class A Notes" or the "Offered Notes") and (ii) Class B (the "Class B Notes"
and, together with the Class A Notes, the "Notes"). The Notes are to be issued
pursuant to Advanta Business Receivables Master Facility Agreement, dated as of
August ___, 1999 (the "Master Agreement"), among the Series Obligors, as
issuers, Advanta Business Services Corp. ("ABS"), as servicer (in such capacity,
the "Servicer"), and Bankers Trust Company, as trustee (the "Trustee"), and the
Series 1999-1 Supplement thereto, dated as of August _____, 1999 (the "Series
1999-1 Supplement" and, together with the Master Agreement, the "Indenture"),
also among the Series Obligors, the Servicer, and the Trustee. Any capitalized
terms used herein but not defined shall have the meaning set forth in the
Indenture.
The Offered Notes are being purchased pursuant to this agreement (the
"Underwriting Agreement") by First Union Capital Markets Corp. ("the
Underwriter") in the amount set forth on Schedule A. The offered Notes are more
fully described in the Registration Statement (defined below) that the Series
Obligors have furnished to the Underwriter.
Simultaneously with the execution of the Indenture, the Series Obligors
will enter into a master contribution and sale agreement (the "Master
Contribution and Sale Agreement") with American Business Services Corp. (in such
capacity, the "Seller"), and the Series 1999-1 Contribution Agreement, dated as
of August ____, 1999, among the Seller and the Series Obligors, pursuant to
which the Seller will transfer to the Series Obligors all of its right, title
and interest in and to the Pledged Property as of the Cut-Off Date.
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SECTION 1. REPRESENTATIONS AND WARRANTIES OF THE SERIES OBLIGORS. The
Series Obligors and ABS, jointly and severally, represent and warrant to the
Underwriter that:
(a) The Series Obligors both have all requisite corporate power,
authority and legal right to own their property and conduct their business as
such properties are presently owned and such business is presently conducted,
and to execute, deliver and perform their obligations under this Underwriting
Agreement, the Notes, and each of the Master Agreement, the Series 1999-1
Supplement, the Master Contribution and Sale Agreement, and the Series 1999-1
Contribution Agreement Supplement (collectively, the "Transaction Agreements").
(b) The execution and delivery of the Underwriting Agreement, the Notes
and each of the Transaction Agreements, 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
both of the Series Obligors and all other necessary action has been taken.
(c) The Underwriting Agreement has been duly authorized and validly
executed and delivered by both of the Series Obligors.
(d) Each of the Transaction Agreements will be executed and delivered
by both of the Series Obligors on or before the Closing Date, and when executed
and delivered by the other parties thereto, will constitute a valid and binding
agreement of both of the Series Obligors, enforceable against both of the Series
Obligors in accordance with their 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 Indenture 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 Indenture 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 Indenture
and, when executed by the Series Obligors and authenticated by the Trustee in
accordance with the Indenture 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 Indenture. The Offered Notes
will be in all material respects in the form contemplated by the Indenture 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.
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(f) The Series Obligors are 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 the
Series Obligors.
(g) Neither the issuance and sale of the Offered Notes, nor the
execution and delivery by the Series Obligors of the Underwriting Agreement, the
Notes or the Transaction Agreements, nor the incurrence by the Series Obligors
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
(as defined herein) upon any of its property or assets, except for those
encumbrances created under the Indenture.
(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 the Series Obligors of the Underwriting
Agreement, the Notes or the Transaction Agreements, 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 the Series Obligors 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, the
Registration Statement and the Transaction Agreements have been or, prior to the
Closing Date, will be taken.
(j) The representations and warranties made by the Series Obligors in
the Transaction Agreements and made in any Officer's Certificate of the Series
Obligors delivered pursuant to the Transaction Agreements will be true and
correct at the time made and on and as of the Closing Date as if set forth
herein.
(k) The Series Obligors agree that they have 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
Pledged Property except as provided in the Indenture, and agrees to take all
action required by the Indenture in order to maintain the security interest in
the Pledged Property granted pursuant to the Indenture.
(l) The Series Obligors possess all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
them and as described in the Prospectus, and the Series Obligors have not
received notice of any proceedings relating to the revocation or modification of
any such license, certificate, authority or permit that if decided adversely to
the
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Series Obligors would, singly or in the aggregate, materially and adversely
affect the conduct of their business, operations or financial condition.
(m) There are no actions, proceedings or investigations pending before
or, to the knowledge of the Series Obligors, threatened by any court,
administrative agency or other tribunal to which the Series Obligors are a party
or of which any of their properties are the subject (i) that if determined
adversely to the Series Obligors would have a material adverse effect on the
business or financial condition of the Series Obligors, (ii) asserting the
invalidity of this Underwriting Agreement, the Notes or any Transaction
Agreement, (iii) seeking to prevent the issuance of the Notes or the
consummation by the Series Obligors of any of the transactions contemplated by,
any Transaction Agreement or this Underwriting Agreement, as the case may be, or
(iv) that might materially and adversely affect the performance by the Series
Obligors under, or the validity or enforceability of, any Transaction Agreement,
this Underwriting Agreement or the Notes.
(n) The Series Obligors have prepared and filed with the United States
Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities Act"), a
registration statement on Form S-1 (registration number 333-________), including
a form of prospectus, relating to the Offered Notes. The registration statement,
and any post-effective amendment thereto, each in the form heretofore delivered
to you and, excluding exhibits thereto, have been declared effective by the
Commission. As used in this Underwriting Agreement, "Effective Time" means the
date and the 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. The Series
Obligors have furnished to the Underwriter copies of one or more preliminary
prospectuses (each, a "Preliminary Prospectus") relating to the Offered Notes.
Except where the context otherwise requires, the registration statement, as
amended at the Effective Time, including all documents filed as a part thereof,
and including any information contained in a prospectus subsequently filed with
the Commission pursuant to Rule 424(b) under the Act and deemed to be part of
the registration statement as of the Effective Time pursuant to Rule 430A under
the Securities Act, is herein called the "Registration Statement", and the
prospectus, in the form filed by the Series Obligors with the Commission
pursuant to Rule 424(b) under the Securities Act or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is hereinafter called the "Prospectus". There are
no contracts or documents of the Series Obligors that are required to be filed
as exhibits to the Registration Statement pursuant to the Securities Act or the
Rules and Regulations that have not been so filed or incorporated by reference
therein on or prior to the Closing Date (defined below). The conditions for use
of Form S-1, as set forth in the General Instructions thereto, have been
satisfied.
[TO THE EXTENT THAT THE UNDERWRITER (A) HAS PROVIDED TO THE SERIES
OBLIGORS COLLATERAL TERM SHEETS (DEFINED BELOW) THAT THE UNDERWRITER HAS
PROVIDED TO A PROSPECTIVE INVESTOR, THE SERIES OBLIGORS HAS FILED SUCH
COLLATERAL TERM SHEETS AS AN EXHIBIT TO A REPORT ON FORM 8-K WITHIN TWO BUSINESS
DAYS OF ITS RECEIPT THEREOF, OR (B) HAVE PROVIDED TO THE
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SERIES OBLIGORS STRUCTURAL TERM SHEETS OR COMPUTATIONAL MATERIALS (EACH AS
DEFINED BELOW) THAT THE UNDERWRITER HAS PROVIDED TO A PROSPECTIVE INVESTOR, THE
SERIES OBLIGORS WILL FILE OR CAUSE TO BE FILED WITH THE COMMISSION A REPORT ON
FORM 8-K CONTAINING SUCH STRUCTURAL TERM SHEETS AND COMPUTATIONAL MATERIAL AS
SOON AS REASONABLY PRACTICABLE AFTER THE DATE OF THIS AGREEMENT, BUT IN ANY
EVENT NOT LATER THAN THE DATE ON WHICH THE PROSPECTUS IS FILED WITH THE
COMMISSION PURSUANT TO RULE 424 OF THE RULES AND REGULATIONS.]
(o) The Registration Statement relating to the Offered Notes has been
filed with the Commission and such Registration Statement has become effective.
No stop order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or, to the
knowledge of the Series Obligors or ABS, threatened by the Commission.
(p) The Registration Statement conforms, and any amendments or
supplements thereto and the Prospectus will conform, in all material respects to
the requirements of the Securities Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and does not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, and as of the Closing Date, contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein no misleading; provided,
however, that this representation and warranty shall not apply to (i) that part
of the Registration Statement that shall constitute the Statement of Eligibility
and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or
(ii) any Underwriter Information (as defined in Section 8(d) hereof) contained
therein. The Indenture conforms in all respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder.
(q) [The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act or
the Securities Exchange Act of 1934 (the "Exchange Act"), as applicable, and the
rules and regulations of the Commission thereunder, and none of such documents
contained any 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; and any further documents so filed and incorporated by reference
in the Prospectus, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.]
(r) Since the respective dates as of which information is given in the
Prospectus, there has not been any material adverse change in the general
affairs, management, financial
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condition, or results of operations of the Series Obligor, otherwise than as set
forth or contemplated in the Prospectus as supplemented or amended as of the
Closing Date.
(s) ABS has been duly incorporated and is validly existing as
corporation in good standing under the law of its jurisdictions of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such qualification, and has
all power and authority necessary to own or hold properties and to conduct the
businesses in which engaged, except where the failure to so qualify or have such
power or authority could not have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), results of operations,
business or prospects of ABS taken as a whole, and to execute, deliver and
perform its obligations under the Underwriting Agreement, the Notes, and the
Transaction Agreements.
(t) All the outstanding shares of capital stock of the Series Obligors
have been duly authorized and validly issued, are fully paid and nonassessable
and, except to the extent set forth in the Registration Statement, are owned by
ABS directly or indirectly through one or more wholly-owned subsidiaries, free
and clear of any claim, lien, encumbrance, security interest, restriction upon
voting or transfer or any other claim of any third party.
(u) (i) the Indenture, when duly executed by the Series Obligors, ABS
and the Trustee and delivered by such parties, will constitute a valid and
binding agreement of the Series Obligors, ABS and the Trustee, enforceable
against them in accordance with its terms; (ii) the Notes, when duly executed,
authenticated, issued and delivered as provided in the Indenture, will be duly
and validly issued and outstanding and will constitute valid and binding
obligations of the Series Obligors; and (iii) Transaction Agreements and the
Offered Notes conform to the descriptions thereof contained in the Prospectus.
(v) The execution, delivery and performance of this Underwriting
Agreement, the Transaction Agreements to which ABS is a party and the issuance
and sale of the Notes, the consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which ABS is bound or to which any of the property or assets of ABS is subject,
nor will such actions result in any violation of the provisions of the charter
or by-laws of ABS or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over ABS or any of its
properties or assets; and except for the registration of the Notes under the
Securities Act, the qualification of the Indenture under the Trust Indenture
Act, such consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state securities laws
in connection with the purchase and distribution of the Offered Notes by the
Underwriter and the filing of any financing statements required to perfect the
Series Trust Estate's interest in the Pledged Property, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Underwriting Agreement or the Transaction
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Agreements, the issuance and sale of the Notes and the consummation of the
transactions contemplated hereby and thereby.
(w) There are no contracts or other documents that are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act and that have not been so described or filed.
(x) There are no legal or governmental proceedings pending to which ABS
is a party or of which any property or assets of ABS is the subject that,
individually or in the aggregate, if determined adversely to ABS, are reasonably
likely to have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of ABS' knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(y) ABS (i) is not in violation of its charter or by-laws, (ii) is not
in default in any material respect, and no event has occurred that, with notice
or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which it is a party or by which it is bound or to which any of
its property or assets is subject or (iii) is not in violation in any respect of
any law, ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject, except any violation or default that
could not have a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of ABS.
(z) Arthur Anderson LLP are independent public accountants with respect
to the Series Obligor as required by the Securities Act.
(aa) The Series Obligors possess all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the business now conducted by
them and as described in the Prospectus, and the Series Obligors have not
received notice of any proceedings relating to the revocation or modification of
any such license, certificate, authority or permit that if decided adversely to
the Series Obligors would, singly or in the aggregate, materially and adversely
affect the conduct of their business, operations or financial condition.
(bb) At the time of execution and delivery of the Indenture, the Series
Obligors will: (i) have good title to the interest in the Pledged Property
conveyed by ABS, free and clear of any lien, mortgage, pledge, charge,
encumbrance, adverse claim or other security interest (collectively, "Liens");
(ii) not have assigned to any person (other than the Trustee) any of its right,
title or interest in the Pledged Property, or the Transaction Agreements; and
(iii) have the power and authority to pledge its interest in the Pledged
Property to the Trustee and to sell the Offered Notes to the Underwriter. Upon
execution and delivery of the Indenture by the Trustee and any related
instruments of transfer or assignment by the Series Obligors (except as
permitted in the Indenture), the Trustee will have acquired beneficial ownership
of all of the Series Obligors right, title and interest in and to the Pledged
Property. Upon delivery to the
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Underwriter of the Offered Notes, the Underwriter will have good title to
the Offered Notes free of any Liens.
(cc) As of the Cut-Off Date, the Pledged Property will meet the
eligibility criteria described in the Prospectus and will conform to the
descriptions thereof contained in the Prospectus.
(dd) Any taxes, fees and other governmental charges in connection with
the execution, delivery and issuance of this Underwriting Agreement, the
Transaction Agreements and the Notes have been paid or will be paid at or prior
to the Closing Date.
(ee) This Underwriting Agreement has been duly authorized, executed and
delivered by each of the Series Obligors and ABS.
(ff) At the Closing Date, each of the representations and warranties of
the Series Obligors and ABS set forth in the Transaction Agreements will be true
and correct in all material respects.
(gg) All ABS-Provided Information was true and correct in all material
respects as of the date it was provided to the Underwriter. The term
"ABS-Provided Information" means the information contained on any computer tape
furnished to the Underwriter or provided by other written means by the Series
Obligors or ABS concerning the assets comprising the Series Trust Estate; and
(hh) Neither the Series Trust Estate nor the Series Obligors are
required to be registered under the Investment Company Act of 1940, as amended
(the "1940 Act"), and the rules and regulations of the Commission thereunder.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF ABS. ABS represents and
warrants to the Underwriter that:
(a) The execution and delivery of the Underwriting Agreement, the Notes
and each of the Transaction Agreements, 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
ABS and all other necessary action has been taken.
(b) The Underwriting Agreement has been duly authorized and validly
executed and delivered by ABS.
(c) Each of the Transaction Agreements will be executed and delivered
by ABS on or before the Closing Date, and when executed and delivered by the
other parties thereto, will constitute a valid and binding agreement of ABS,
enforceable against ABS in accordance with their 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)
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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 Indenture 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 Indenture 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.
(d) The representations and warranties made by ABS in the Transaction
Agreements and made in any Officer's Certificate of ABS delivered pursuant to
the Transaction Agreements will be true and correct at the time made and on and
as of the Closing Date as if set forth herein.
(e) ABS possesses all material licenses, certificates, authorities 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 has not received notice of any proceedings relating to
the revocation or modification of any such license, certificate, authority or
permit that if decided adversely to ABS would, singly or in the aggregate,
materially and adversely affect the conduct of their business, operations or
financial condition.
SECTION 3. PURCHASE AND SALE. Subject to the terms and conditions and
in reliance upon the covenants, representations and warranties herein set forth,
the Series Obligors agree to sell to the Underwriter, and the Underwriter agrees
to purchase from the Series Obligor, the principal amount of Notes set forth
Schedule A hereto. The purchase price for the Notes shall be as set forth in
Schedule A hereto. [THE NOTES WILL SETTLE WITHOUT ACCRUED INTEREST.]
SECTION 4. DELIVERY AND PAYMENT. The Series Obligors will deliver the
Offered Notes to the Underwriter 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 (7) full business days thereafter as the
Underwriter and the Series Obligors determine, such time being herein referred
to as the "Closing Date." Each of the Offered Notes to be so 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 Underwriter 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.
SECTION 5. COVENANTS OF THE SERIES OBLIGOR. The Series Obligors and
ABS, jointly and severally, covenant and agree with the Underwriter as follows:
(a) The Series Obligors will prepare the Prospectus in a form approved
by the Underwriter and will file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on the
second business day following the
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execution and delivery of this Underwriting Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Securities Act.
(b) During the period that a prospectus relating to the Offered Notes
is required to be delivered under the Securities Act in connection with sales of
such Notes (such period being hereinafter sometimes referred to as the
"prospectus delivery period"), before filing any amendment or supplement to the
Registration Statement or the Prospectus, the Series Obligors will furnish to
the Underwriter a copy of the proposed amendment or supplement for review and
will not file any such proposed amendment or supplement to which the Underwriter
reasonably objects.
(c) During the prospectus delivery period, the Series Obligors will
advise the Underwriter promptly after they receive notice thereof, (i) when any
amendment to the Registration Statement shall have become effective; (ii) of any
request by the Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for any additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding for
that purpose, (iv) of the issuance by the Commission of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceedings for that purpose and (v) of any
notification with respect to any suspension of the qualification of the Offered
Notes for offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and will use its best efforts to prevent the
issuance of any such stop order or suspension and, if any is issued, will
promptly use its best efforts to obtain the withdrawal thereof.
(d) If, at any time during the prospectus delivery period, any event
occurs as a result of which the Prospectus as then supplemented would include
any 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 shall be necessary to amend
or supplement the Prospectus to comply with the Securities Act, the Series
Obligors will promptly prepare and file with the Commission an amendment or a
supplement that will correct such statement or omission or effect such
compliance.
(e) The Series Obligors will endeavor to qualify the Offered Notes for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Underwriter shall reasonably request and will continue such qualification in
effect so long as reasonably required for distribution of the Notes; provided,
however, that the Underwriter shall not be obligated to qualify to do business
in any jurisdiction in which it is not currently so qualified; and provided,
further, that the Series Obligors shall not be required to file a general
consent to service of process in any jurisdiction.
(f) The Series Obligors will furnish to the Underwriter, without
charge, two copies of the Registration Statement (including exhibits thereto),
one of which will be signed and, during the prospectus delivery period, as many
copies of any Preliminary Prospectus and the Prospectus and any supplement
thereto as the Underwriter may reasonably request.
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(g) For a period from the date of this Underwriting Agreement until the
retirement of the Offered Notes, or until such time as the Underwriter shall
cease to maintain a secondary market in the Offered Notes, whichever first
occurs, the Series Obligors will deliver to the Underwriter (i) the annual
statements of compliance, (ii) the annual independent certified public
accountants' reports furnished to the Trustee, (iii) all documents required to
be distributed to the Noteholders, (iv) all documents filed with the Commission
pursuant to the Exchange Act or any order of the Commission thereunder, in each
case as provided to the Trustee or filed with the Commission, as soon as such
statements and reports are furnished to the Trustee or filed or as soon
thereafter as practicable, (v) any order of the Commission under the Securities
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 (vi) from time to
time, such other information concerning the Series obligors as the Underwriter
may reasonably request.
(h) To the extent, if any, that the rating provided with respect to the
Offered Notes by the rating agency or agencies that initially rate the Offered
Notes is 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.
(i) The Series Obligors will cause the Trustee to make generally
available to Noteholders and to the Underwriter as soon as practicable an
earnings statement covering a period of at least twelve months beginning with
the first fiscal quarter occurring after the Effective Date of the Registration
Statement, which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder.
(j) For a period of 90 days from the date hereof, the Series Obligors
will not offer for sale, sell, contract to sell or otherwise dispose of,
directly or indirectly, or file a registration statement for, or announce any
offering of, any securities collateralized by, or evidencing an ownership
interest in, any asset-backed securities of the Series Obligors (other than the
Offered Notes purchased hereunder) without the prior written consent of the
Underwriter.
(k) The Underwriter shall have received evidence satisfactory to it
that the Class A-1 Notes shall be rated "P-1" by Moody's and "F1+/AAA" by Fitch,
the Class A-2 Notes shall be rated no lower than "Aaa" by Moody's and "AAA" by
Fitch, and the Class A-3 Notes shall be rated no lower than "Aaa" by Moody's and
"AAA" by Fitch.
SECTION 6. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The obligations
of the Underwriter hereunder are subject to the accuracy, when made and on the
Closing Date, of the representations and warranties of the Series Obligors and
ABS contained herein, to the accuracy of the statements of the Series Obligors
and ABS made in any certificates pursuant to the provisions hereof, to the
performance by the Series Obligors and ABS of their respective obligations
hereunder and to each of the following additional terms and conditions:
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(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424 in the manner and within the applicable time period prescribed for
such filing by the rules and regulations of the Commission under the Securities
Act and in accordance with Section 5(a) of this Underwriting Agreement, and the
Underwriter shall have received confirmation of the effectiveness of the
Registration Statement; and, prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceedings for such purpose shall have been initiated or
threatened by the Commission; and all requests for additional information from
the Commission with respect to the Registration Statement shall have been
complied with to the reasonable satisfaction of the Underwriter.
(b) (i) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Underwriting Agreement, the
Transaction Agreements, the Offered Notes, the Registration Statement, the
Preliminary Prospectus and the Prospectus, and all other legal matters relating
to such agreements and the transactions contemplated hereby and thereby shall be
reasonably satisfactory in all material respects to counsel for the Underwriter,
and the Series Obligors shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such
matters and (ii) prior to or contemporaneously with the purchase of Offered
Notes hereunder, all transactions contemplated to be consummated under such
Transaction Agreements on the Closing Date (including, without limitation, the
issuance and placement of any subordinated, privately-placed securities) shall
have been so consummated to the reasonable satisfaction of the Underwriter.
(c) Orrick, Herrington & Sutcliffe LLP shall have furnished to the
Underwriter their written opinion, as counsel to the Series Obligors and ABS,
addressed to the Underwriter and dated the Closing Date, in form and substance
reasonably satisfactory to the Rating Agencies (all of whom shall be entitled to
rely on such opinion as if an addressee) Underwriter to the effect that:
(i) This Underwriting Agreement and each of the Transaction
Agreements, assuming the due authorization, execution and delivery of
such agreements by the other parties thereto, constitute the legal,
valid and binding agreements of the Series Obligors and ABS, as
applicable, enforceable against the Series Obligors and ABS, as
applicable, in accordance with their terms, subject as to
enforceability to (A) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, (B) the qualification that the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion, with
respect to such remedies, of the court before which any proceedings
with respect thereto may be brought, and (C) with respect to rights of
indemnity under this Underwriting Agreement and each of the Transaction
Agreements, limitations of public policy under applicable securities
laws.
(ii) The conditions to the use by the Series Obligors of a
registration statement on Form S-1 under the Securities Act, as set
forth in the General Instructions to Form S-1, have been satisfied with
respect to the Registration Statement and the Prospectus.
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(iii) The Registration Statement and any amendments thereto
have become effective under the Securities Act; to the best of such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and not withdrawn and no
proceedings for that purpose have been instituted or threatened and not
terminated; and the Registration Statement, the Prospectus and each
amendment or supplement thereto, as of their respective effective or
issue dates (other than the financial and statistical information
contained therein, as to which such counsel need express no opinion),
complied as to form in all material respects with the applicable
requirements of the Securities Act.
(iv) To the best of such counsel's knowledge, there are no
material contracts, indentures or other documents of a character
required to be described or referred to in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto.
(v) The statements in the Prospectus under the headings
"Prospectus Summary Federal Income Tax Status" and "--ERISA
Considerations" and "Legal Matters," "ERISA Considerations," "Federal
Income Tax Consequences," and "State Tax Consequences" to the extent
that they constitute matters of federal law or legal conclusions with
respect thereto, have been reviewed by such counsel and are correct in
all material respects with respects to those consequences or aspects
that are discussed.
(vi) The Indenture and the Offered Notes conform in all
material respects to the description thereof contained in the
Prospectus.
(vii) Neither the Series Obligors nor the Series Trust Estate
are an "investment company" or under the control of an "investment
company" as such terms are defined in the 1940 Act.
(viii) ABS is validly and in good standing existing as a
Delaware corporation.
(ix) ABS has full corporate power and authority to enter into
and fulfill its obligations under the Underwriting Agreement and the
Transaction Agreements and to transfer the Pledged Property to the
Series Obligors as contemplated in the Contribution Agreement.
(x) The Underwriting Agreement and the Transaction Agreements
have been duly authorized, executed and delivered by ABS.
(xi) No consent, approval, authorization, order, registration
or qualification of or with any court or governmental agency or body
having jurisdiction over ABS is required for the consummation by ABS of
the transactions contemplated by the
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Transaction Agreements, except such consents, approvals,
authorizations, registrations and qualifications as have been obtained.
(xii) The Series Obligors have been incorporated and are
existing as corporations in good standing under the laws of their
jurisdiction of incorporation, is qualified to do business and is in
good standing, and has all power and authority necessary to own or hold
their own properties and to conduct the business in which they are
engaged and to enter into and perform its obligations under this
Underwriting Agreement, and the Transaction Agreements, and to cause
the Notes to be issued.
(xiii) This Underwriting Agreement, and the Transaction
Agreements have been duly authorized, executed and delivered by the
Series Obligors.
(xiv) 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 of the Notes, and the
sale of the Offered Notes to the Underwriter, or the consummation by
the Series Obligors of the other transactions contemplated by this
Underwriting Agreement, the Transaction Agreements, except such
consents, approvals, authorizations, registrations or qualifications as
may be required under the Securities Act or state securities or Blue
Sky laws in connection with the purchase and distribution of the
Offered Notes by the Underwriter or as have been previously obtained.
(xv) The direction by the Series Obligors to the
Trustee to authenticate and deliver the Notes has been duly authorized
by the Series Obligors and, assuming that the Trustee has been duly
authorized to do so, when executed, authenticated and delivered by the
Trustee against payment of the agreed upon consideration therefor in
accordance with the Indenture, the Notes will be validly issued and
outstanding and will be entitled to the benefits of the Indenture.
Such counsel shall also have furnished to the Underwriter a written
statement addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriter to the effect that no facts have come
to the attention of such counsel which lead them to believe that: (A) the
Registration Statement (other than (1) the documents incorporated therein by
reference [(INCLUDING, WITHOUT LIMITATION, ANY STRUCTURAL TERM SHEETS,
COLLATERAL TERM SHEETS AND COMPUTATIONAL MATERIALS)] and (2) the financial and
statistical information contained therein, as to which no opinion shall be given
at the time it became effective, or at the date of such opinion) contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and (B) the Prospectus (other than (1) the information
incorporated therein by reference [(INCLUDING, WITHOUT, LIMITATION, ANY
STRUCTURAL TERM SHEETS, COLLATERAL TERM SHEETS AND COMPUTATIONAL MATERIALS)] and
(2) the financial, statistical and numerical information contained therein, as
to which no opinion shall be expressed) contains an untrue statement of a
material fact or omitted 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.
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(d) ABS shall have furnished to the Underwriter a written opinion of
counsel to ABS (who may be an employee of ABS or of an affiliate of ABS
addressed to the Underwriter and dated the Closing Date, in form and substance
satisfactory to the Underwriter, to the effect that:
(i) The execution, delivery and performance of the Indenture
and the Contribution Agreement by ABS and the consummation of the
transactions contemplated thereby do not and will not conflict with or
result in a material breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel and to which ABS is a party or by
which ABS is bound or to which any of the property or assets of ABS or
any of its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the articles of incorporation or bylaws
of ABS or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over ABS or any of its
properties or assets.
(ii) There are no actions, proceedings or investigations
pending before or, to the best knowledge of such counsel, threatened by
any court, administrative agency or other tribunal to which ABS is a
party or of which any of its properties is the subject: (A) that if
determined adversely to ABS would have a material adverse effect on the
business, results of operations or financial condition of ABS; (B)
asserting the invalidity of the Indenture, the Contribution Agreement
or the Notes; (C) seeking to prevent the issuance of the Notes or the
consummation by ABS of any of the transactions contemplated by the
Indenture or the Contribution Agreement; or (D) that might materially
and adversely affect the performance by ABS of its obligations under,
or the validity or enforceability of, the Indenture, the Contribution
Agreement or the Notes.
(e) Counsel for the Series Obligor (who may be an employee of Series
Obligor or an affiliate of Series Obligor) shall have furnished to the
Underwriter its written opinion, addressed to the Underwriter and dated the
Closing Date, in form and substance satisfactory to the Underwriter, to the
effect that:
(i) The execution, delivery and performance of this
Underwriting Agreement, the Indenture and the Contribution Agreement by
the Series Obligors, the consummation of the transactions contemplated
hereby and thereby, and the issuance and delivery of the Notes do not
and will not conflict with or result in a material breach or violation
of any of the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Series Obligors are parties
or by which the Series Obligors are bound or to which any of the
property or assets of the Series Obligors or any of their subsidiaries
is subject, nor will such actions result in any violation of the
provisions of the articles of incorporation or bylaws of the Series
Obligors or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Series
Obligors or any of their properties or assets.
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(ii) There are no actions, proceedings or investigations
pending before or, to the best knowledge of such counsel, threatened by
any court, administrative agency or other tribunal to which the Series
Obligors are a party or of which any of its properties is the subject:
(A) that if determined adversely to the Series Obligors would have a
material adverse effect on the business, results of operations or
financial condition of the Series Obligors; (B) asserting the
invalidity of the Indenture, the Contribution Agreement or the Notes;
(C) seeking to prevent the issuance of the Notes or the consummation by
the Series Obligors of any of the transactions contemplated by the
Indenture, the Contribution Agreement, or this Underwriting Agreement,
as the case may be; or (D) which might materially and adversely affect
the performance by the Series Obligors of its obligations under, or the
validity or enforceability of, the Indenture, the Contribution
Agreement, this Underwriting Agreement or the Notes.
(f) Orrick, Herrington & Sutcliffe LLP shall have furnished to the
Underwriter their written opinion(s), as counsel to the Series Obligors and ABS,
addressed to the Underwriter and dated the Closing Date, in form and substance
reasonably satisfactory to the Underwriter, with respect to the (i)
characterization of the transfer of the Pledged Property by the Sellers to the
Series Obligors pursuant to the Contribution Agreement as a sale and the
non-consolidation of the Series Obligors and ABS, (ii) the characterization of
the tax treatment of the Notes, (iii) the perfection of the security interests,
as contemplated in the Prospectus and the Transaction Agreements, and (iv)
[other opinions that will be required are currently being discussed].
(g) The Underwriter shall have received from Moore & Van Allen, PLLC,
counsel for the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to such matters as the Underwriters may require, and the Series
Obligors shall have furnished to such counsel such documents as they reasonably
request for enabling them to pass upon such matters.
(h) 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 counsel to the Underwriter, which may include,
among other items, opinions to the effect that:
(i) The Trustee is _______ and has been duly incorporated and
is validly existing as a banking corporation in good standing under the
laws of the State of New York.
(ii) The Trustee has duly authorized, executed and delivered
each of the Transaction Agreements to which the Trustee is a party,
which constitute the legal, valid and binding agreement of the Trustee,
enforceable against the Trustee in accordance with their terms,
subject, as to enforcement of remedies, to (A) applicable bankruptcy,
insolvency, reorganization, and other similar laws affecting the rights
of creditors generally, and (B) to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The execution and delivery by the Trustee of Indenture
and the performance by the Trustee of its obligations thereunder do not
conflict with or result in a
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violation of the certificate of incorporation or bylaws of the Trustee
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Trustee or any
of its properties or assets.
(iv) The Trustee has full power and authority to execute and
deliver the Indenture and to perform its obligations thereunder.
(v) There are no actions, proceedings or investigations
pending or threatened against or affecting the Trustee before or by any
court, arbitrator, administrative agency or other governmental
authority that, if decided adversely to the Trustee, would materially
and adversely affect the ability of the Trustee to carry out the
transactions contemplated in the Indenture.
(vi) 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 Indenture.
(i) Each of the Series Obligors and ABS shall have furnished to the
Underwriter a certificate, dated the Closing Date, of any of its Chairman of the
Board, President or Vice President and its chief financial officer stating that
(i) such officers have carefully examined the Registration Statement and the
Prospectus, (ii) the Prospectus does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that each of
the Series Obligors and ABS may exclude the Underwriter's Information (as
defined in Section 8(d) herein) from such representation), (iii) the
representations and warranties of ABS or the Series Obligors, as the case may
be, contained in this Underwriting Agreement and the Transaction Agreements are
true and correct in all material respects on and as of the Closing Date, (iv)
ABS or the Series Obligors, as the case may be, have complied in all material
respects with all agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder and under such
agreements at or prior to the Closing Date, (v) no stop order suspending the
effectiveness of the Registration Statement has been issued and is outstanding
and no proceedings for that purpose have been instituted and not terminated or,
to the best of his or her knowledge, are contemplated by the Commission, and
(vi) since the date of its most recent financial statements, there has been no
material adverse change in the financial position or results of operations of
ABS or the Series Obligors, as applicable, or any development including a
prospective change, in or affecting the condition (financial or otherwise),
results of operations or business of ABS or the Series Obligors except as set
forth in or contemplated by the Registration Statement and the Prospectus.
(j) 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 authorization, execution and delivery of
the Indenture by the Trustee and the acceptance by the Trustee of the Series
Trust Estate and such other matters as the Underwriter shall reasonably request.
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(k) Subsequent to the date of this 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 or ABS that materially impairs the investment quality of the Notes;
(ii) trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been suspended
or limited, or minimum prices shall have been established on either of such
exchanges or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, or trading in
securities of the Series Obligors or ABS on any exchange or in the
over-the-counter market shall have been suspended; (iii) a general moratorium on
commercial banking activities shall have been declared by Federal or New York
State authorities; or (iv) an outbreak or escalation of hostilities or a
declaration by the United States of a national emergency or war or such a
material adverse change in general economic, political or financial conditions
(or the effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of the Underwriter,
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.
(l) With respect to the letter of Arthur Andersen LLP, delivered to the
Underwriter concurrently with the execution of this Agreement (the "initial
letter"), the Series Obligors shall have furnished to the Underwriter a letter
(the "bring-down letter") of such accountants, addressed to the Underwriter and
dated the Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualifications of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
the bring-down letter (or with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of such bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
its initial letter and (iii) confirming in all material respects the conclusions
and findings set forth in its initial letter.
(m) The Underwriter shall receive evidence satisfactory to it that, on
or before the Closing Date, UCC-l financing statements have been or are being
filed in each office in each jurisdiction in which such financing statements are
required to perfect the first priority security interests created (i) by the
Contribution Agreement reflecting the interest of the Series Obligors in the
Pledged Property and the proceeds thereof and (ii) by the Indenture, reflecting
the interest of the Trustee in the Pledged Property and the proceeds thereof as
described in the Prospectus.
(n) Subsequent to the execution and delivery of this Underwriting
Agreement, (i) no downgrade, withdrawal or qualification shall have occurred
with respect to the rating accorded the Offered Notes or any of the Series
Obligors' other debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of Rule
436(g)(2) of the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review (other than an
announcement with positive
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implications of a possible upgrading), its rating of the Offered Notes or any of
ABS' or the Series Obligors' other debt securities.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Underwriting Agreement may
be terminated by the Underwriter by notice to the Series Obligors 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 10.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriter.
SECTION 7. PAYMENT AND EXPENSES. If (i) the Series Obligors shall fail
to tender the Notes for delivery to the Underwriter for any reason permitted
under this Underwriting Agreement or (ii) the Underwriter shall decline to
purchase the Notes for any reason permitted under this Underwriting Agreement,
the Series Obligors shall reimburse the Underwriter for the fees and expenses of
its counsel and for such other out-of-pocket expenses as shall have been
reasonably incurred by them in connection with this Underwriting Agreement and
the proposed purchase of the Offered Notes, and upon demand the Series Obligors
shall pay the full amount thereof to the Underwriter.
SECTION 8. INDEMNIFICATION. (a) ABS and the Series Obligors shall,
jointly and severally, indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the Securities Act against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Underwriter may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof or
supplement thereto, or in any Preliminary Prospectus or the Prospectus or in any
amendment thereof or supplement thereto or (ii) 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 shall reimburse the Underwriter
for any legal or other expenses reasonably incurred by the Underwriter in
connection with investigating or preparing to defend or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided however that
neither ABS nor the Series Obligors shall be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any Registration Statement as originally filed or in any
amendment thereof or supplement thereto, or in any Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto in reliance upon
and in conformity with the Underwriter's Information (as defined in Section 8(d)
herein).
(b) The Underwriter shall indemnify and hold harmless the Series
Obligors, against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Series Obligors may become subject,
under the Securities Act or otherwise, insofar as such loss,
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claim, damage, liability or action arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof or
supplement thereto, or in any Preliminary Prospectus or the Prospectus or in any
amendment thereof or supplement thereto or (ii) 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, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the Underwriter's
Information (as defined in Section 8(d) herein), and shall reimburse the Series
Obligors for any legal or other expenses reasonably incurred by the Series
Obligors directly in connection with investigating or preparing to defend or
defending against or appearing as third party witness in connection with any
such loss, claim, damage or liability (or any action in respect thereof) as such
expenses are incurred.
(c) Promptly after receipt by any indemnified party under this Section
8 of notice of any claim or the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8, except to the extent it has
been materially prejudiced by such failure; and, provided further, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
Any indemnified party shall have the right to employ separate counsel
in any such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the employment thereof has been specifically authorized by the
indemnifying party in writing; (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel; or (iii) the
indemnifying party has failed to assume the defense of such action and employ
counsel reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, the
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indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to local counsel) at any time for all such indemnified parties, which
firm shall be designated in writing by the Underwriter, if the indemnified
parties under this Section 8 consist of the Underwriter or any of its directors
and controlling persons, or by the Series Obligors, if the indemnified parties
under this Section 8 consist of the Series Obligors or any of the Series
Obligors' directors, officers or controlling persons.
Each indemnified party, as a condition of the indemnity agreements
contained in Section 8(a) and (b), shall use its best efforts to cooperate
with the indemnifying party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees
to indemnify and hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected, without its
written consent if (A) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (B) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.
(d) The Underwriter confirms that the information (such information,
the "Underwriter's Information") set forth in the [FIRST AND THIRD PARAGRAPHS
UNDER THE CAPTION "PLAN OF DISTRIBUTION"] in the Prospectus is correct and
constitutes the only information furnished in writing to the Series Obligors and
ABS by or on behalf of the Underwriter specifically for inclusion in the
Registration Statement and the Prospectus.
(e) The obligations of ABS, the Series Obligors and the Underwriter in
this Section 8 are in addition to any other liability which ABS, the Series
Obligors or the Underwriter, as the case may be, may otherwise have.
SECTION 9. CONTRIBUTION. If the indemnification provided for in this
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 8(a) or (b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
any action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by ABS and the Series Obligors on the one
hand and the Underwriter 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 but also the relative fault of
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ABS and the Series Obligors on the one hand and the Underwriter on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or any action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by ABS and the
Series Obligors on the one hand and the Underwriter on the other with respect to
such offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Offered Notes purchased hereunder (before
deducting expenses) received by the Series Obligors bear to the total
underwriting discounts and commissions received by the Underwriter with respect
to the Offered Notes purchased hereunder, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by ABS or the Series Obligors on the one hand or
the Underwriter on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. ABS, the Series Obligors and the Underwriter agree
that it would not be just and equitable if contributions pursuant to this
Section 9 were to be determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability referred to above in this Section
9 shall be deemed to include for purposes of this Section 9, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim or any action. Notwithstanding the
provisions of this Section 9, the Underwriter 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 it and distributed to the public were offered
to the public less the amount of any damages that the Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 10. TERMINATION OF AGREEMENT. The Underwriter may terminate
this Underwriting Agreement immediately upon notice to the Series Obligor, at
any time at or prior to the Closing Date if any of the events or conditions
described in Section 5(k) of this Underwriting Agreement shall occur and be
continuing. In the event of any such termination, the covenants set forth in
Section 5, the provisions of Section 7, the indemnity agreement set forth in
Section 8 and the provisions of Sections 9 and 11 shall remain in effect.
SECTION 11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Underwriting
Agreement shall inure to the benefit of and be binding upon the Underwriter, the
Series Obligors, ABS, and their respective successors. Nothing expressed or
mentioned in this Underwriting Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriter, the Series
Obligors and ABS and their respective successors and the controlling persons and
officers and directors, and their heirs and legal assigns, any legal or
equitable right, remedy or claim under or in respect of this Underwriting
Agreement or any provision contained herein.
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SECTION 12. EXPENSES. The Series Obligors and ABS, jointly and
severally, agrees with the Underwriter to pay (i) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Offered Notes and
any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto; (iii) the costs of
distributing the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each case,
exhibits), any Preliminary Prospectus and the Prospectus, all as provided in
this Agreement; (iv) the costs of reproducing and distributing this Agreement
and any other underwriting and selling group documents by mail, telex or other
means of communications; (v) the fees and expenses of qualifying the Notes under
the securities laws of the several jurisdictions as provided in Section 5(e) and
of preparing, printing and distributing Blue Sky Memoranda and Legal Investment
Surveys (including the related reasonable and documented fees and expenses of
counsel to the Underwriter); (vi) any fees charged by rating agencies for rating
the Offered Notes; (vii) all fees and expenses of the Trustee and its counsel;
(viii) all fees and expenses of the Underwriter and its counsel; (ix) any
transfer taxes payable in connection with its sale of the Offered Notes pursuant
to this Underwriting Agreement; and (x) all other costs and expenses incident to
the performance of the obligations of the Series Obligors and ABS under this
Agreement.
SECTION 13. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Series Obligors,
ABS and the Underwriter contained in this Underwriting Agreement or made by or
on their behalf, respectively, pursuant to this Underwriting Agreement, shall
survive the delivery of and payment for the Offered Notes and shall remain in
full force and effect, regardless of any termination or cancellation of this
Underwriting Agreement or any investigation made by or on behalf of any of them
or any person controlling any of them.
SECTION 14. NOTICES. All communication hereunder shall be in writing
and, (i) if sent to the Underwriter will be mailed, delivered or telecopied and
confirmed to them at First Union Capital Markets Corp., Asset Securitization
Division, 301 South College Street, TW-9, Charlotte, North Carolina, 28288-0610,
Telecopy Number: (704) 374-3254; if sent to the Series Obligors, will be mailed,
delivered or telecopied and confirmed to them at the address of the Series
Obligors set forth in the Registration Statement, Attention: ;
and (iii) if sent to ABS, will be mailed, delivered or telecopied and confirmed
to them at the address of ABS set forth in the Registration Statement,
Attention: . Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof. The Series Obligors and ABS shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriter.
SECTION 15. GOVERNING LAW. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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SECTION 16. COUNTERPARTS. This 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
instrument.
SECTION 17. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Underwriting Agreement.
SECTION 18. EFFECTIVENESS. This Underwriting Agreement shall become
effective upon execution and delivery.
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If you are in agreement with the foregoing, please sign the counterpart
hereof and return it to the Series Obligors, whereupon this letter and your
acceptance shall become a binding agreement among the Series Obligors, ABS and
the Underwriter.
Very truly yours,
ADVANTA LEASING RECEIVABLES
CORP. VIII
By:
Name:
Title:
ADVANTA LEASING RECEIVABLES
CORP. IX
By:
Name:
Title:
ADVANTA BUSINESS SERVICES CORP.
By:
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date hereof.
FIRST UNION CAPITAL MARKETS CORP.,
as Underwriter
By:
Name:
Title:
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SCHEDULE A
Date of Underwriting Agreement: August ____, 1999
Underwriter: First Union Capital Markets Corp.
Underwriter Address: First Union Capital Markets Corp.
One First Union Center, TW-9
301 South College Street
Charlotte, NC 28288-0610
Title, Purchase Price and Description of Notes:
Class A-1 Notes
Title: $___________ _____% Class A-1 Equipment Receivables Asset
Backed Notes, Series 1999-1
Price to public: $___________
Purchase price: $___________
Underwriting discount: $___________
Distribution Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day), commencing
September 15, 1999
Maturity: __________ 15, _____ Distribution Date
Redemption provisions: Notes remaining outstanding may be redeemed in whole, but
not in part, on any Distribution Date at the
Series Obligor's option if the Aggregate
Contract Principal Balance at such time is less than 10% of
the initial Aggregate Contract Principal Balance
as of the [Cutoff] Date.
Class A-2 Notes
Title: $_____________ _____% Class A-2 Equipment Receivables
Asset Backed Notes, Series 1999-1
Price to public: $____________
Purchase price: $____________
Underwriting discount: $____________
Distribution Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day), commencing
September 15, 1999
Maturity: _______ 15, _____ Distribution Date
Redemption provisions: Notes remaining outstanding may be
redeemed in whole, but not in part,
on any Distribution Date at
the Series Obligor's option
if the Aggregate
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Contract Principal Balance at such
time is less than 10% of
the initial Aggregate
Contract Principal Balance
as of the [Cutoff] Date.
Class A-3 Notes
Title: $____________ _____% Class A-3 Equipment Receivables Asset
Backed Notes, Series 1999-1
Price to public: $___________
Purchase price: $___________
Underwriting discount: $___________
Distribution Dates: The 15th calendar day of each month (if such day is not a
Business Day, then next succeeding Business Day), commencing
September 15, 1999
Maturity: ________ 15, _____ Distribution Date
Redemption provisions: Notes remaining
outstanding may be redeemed
in whole, but not in part,
on any Distribution Date at
the Series Obligor's option
if the Aggregate Contract
Principal Balance at such
time is less than 10% of
the initial Aggregate
Contract Principal Balance
as of the [Cutoff] Date.
Closing Date, Time and Location:
Date: ________________________
Time: ________________________
Location: ________________________
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