EXHIBIT 1.1
EXECUTION COPY
ADVANTA BUSINESS CARD MASTER TRUST
Asset-Backed Notes, Series 2003-C
Class A-1 Notes
Class A-2 Notes
Class B Notes
Class C-1 Notes
Class C-2 Notes
UNDERWRITING AGREEMENT
August 5, 2003
Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Advanta Business Receivables Corp., a Nevada
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause Advanta Business Card Master Trust, a Delaware common
law trust (the "Issuer"), to issue $210,000,000 aggregate principal amount of
Advanta Business Card Master Trust Class A-1 Asset Backed Notes, Series 2003-C
(the "Class A-1 Notes"), $30,000,000 aggregate principal amount of Advanta
Business Card Master Trust Class A-2 Asset Backed Notes, Series 2003-C (the
"Class A-2 Notes" and together with the Class A-1 Notes, the "Class A Notes"),
$27,750,000 aggregate principal amount of Advanta Business Card Master Trust
Class B Asset Backed Notes, Series 2003-C (the "Class B Notes"), $10,000,000
aggregate principal amount of Advanta Business Card Master Trust Class C-1 Asset
Backed Notes, Series 2003-C (the "Class C-1 Notes"), $11,750,000 aggregate
principal amount of Advanta Business Card Master Trust Class C-2 Asset Backed
Notes, Series 2003-C (the "Class C-2 Notes" and together with the Class C-1
Notes, the "Class C Notes" and together with the Class A Notes and the Class B
Notes, the "Offered Securities") and $10,500,000 aggregate principal amount of
Advanta Business Card Master Trust Class D Floating Rate Asset Backed Notes,
Series 2003-C (the "Class D Notes" and together with the Class A Notes, the
Class B Notes and the Class C Notes, the "Notes").
The Issuer is a common law trust formed pursuant to a Trust Agreement,
dated as of August 1, 2000 (the "Trust Agreement") between the Company and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). The Notes will
be issued pursuant to a Master Indenture, dated as of August 1, 2000 (the
"Master Indenture"), between the Issuer and Deutsche
Bank Trust Company Americas, as indenture trustee (the "Indenture Trustee"), as
supplemented by the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Supplement with respect to the Notes
dated as of August 1, 2003 (the "Indenture Supplement" and together with the
Master Indenture, the "Indenture").
The assets of the Issuer will include Receivables and payments thereon
in a portfolio of MasterCard and VISA business revolving credit card accounts of
Advanta Bank Corp.
The Receivables are transferred to the Issuer pursuant to a Transfer
and Servicing Agreement, dated as of August 1, 2000 (the "Transfer and Servicing
Agreement"), between the Company, Advanta Bank Corp. ("Advanta"), as servicer
(in such capacity, the "Servicer"), and the Issuer. The Receivables transferred
to the Issuer by the Company are acquired by the Company from Advanta, pursuant
to a Receivables Purchase Agreement, dated as of August 1, 2000 (the
"Receivables Purchase Agreement"), between the Company and Advanta. Advanta
granted a security interest in the Receivables to the Indenture Trustee for the
benefit of the Noteholders pursuant to a letter agreement dated as of August 1,
2000 (the "Security Agreement"), between Advanta and the Indenture Trustee.
Advanta has agreed to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the Transfer and
Servicing Agreement, the Master Indenture and each indenture supplement for each
series of notes issued by the Issuer, pursuant to an Administration Agreement,
dated as of August 1, 2000 (the "Administration Agreement"), between Advanta, as
administrator (in such capacity, the "Administrator"), and the Issuer. The
Transfer and Servicing Agreement, the Receivables Purchase Agreement, the
Indenture, the Trust Agreement, the Security Agreement and the Administration
Agreement are referred to herein, collectively, as the "Transaction Documents."
This Underwriting Agreement is referred to herein as this "Agreement."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Transaction Documents.
Advanta and the Company hereby agree with the underwriters for the
Class A Notes listed on Schedule A hereto (the "Class A Underwriters"), the
underwriters for the Class B Notes listed on Schedule A hereto (the "Class B
Underwriters") and the underwriters for the Class C Notes listed on Schedule A
hereto (the "Class C Underwriters" and together with the Class A Underwriters
and the Class B Underwriters, the "Underwriters") as follows:
2. Representations and Warranties of the Company and Advanta.
Each of the Company and Advanta, jointly and severally, represents and warrants
to, and agrees with, each of the Underwriters that:
(a) The Company and the Offered Securities meet the
requirements for use of Form S-3 under the Securities Act of 1933, as amended
(the "Act"); the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-81788),
including a representative form of prospectus supplement and such amendments
thereto as may have been filed prior to the date hereof, relating to the Offered
Securities and the offering thereof from time to time in accordance with Rule
415 under the Act.
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Such registration statement, as amended, has been declared effective by the
Commission, and the Indenture has been qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"). The registration statement as
amended at the date hereof is hereinafter referred to as the "Registration
Statement." The Company will prepare and file with the Commission a prospectus
supplement (together with any later dated prospectus supplement relating to the
Offered Securities, the "Prospectus Supplement") to the prospectus included in
the Registration Statement (such prospectus, in the form it appears in the
Registration Statement or in the form most recently revised and filed with the
Commission pursuant to Rule 424(b), is hereinafter referred to as the "Base
Prospectus") specifically relating to the Offered Securities pursuant to Rule
424 under the Act. The term "Prospectus" means the Base Prospectus together with
the Prospectus Supplement. The term "Preliminary Prospectus" means any
preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Base Prospectus. As used herein, the terms
"Registration Statement," "Prospectus," "Base Prospectus" and "Preliminary
Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus or the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
electronically transmitted copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇"). All
references in this Agreement to financial statements and schedules and other
information that is "contained," "included" or "stated" in the Registration
Statement, any Preliminary Prospectus or the Prospectus (or other references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information that is incorporated by reference in the
Registration Statement, any Preliminary Prospectus or the Prospectus, as the
case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, any Preliminary Prospectus or the Prospectus
shall be deemed to mean and include the filing of any document with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that is incorporated by reference in the Registration
Statement, such Preliminary Prospectus or the Prospectus, as the case may be;
(b) No stop order preventing or suspending the
effectiveness or use of the Registration Statement or the Prospectus has been
issued by the Commission and no proceeding for that purpose has been initiated
or, to the knowledge of the Company or Advanta, threatened by the Commission.
The Registration Statement, as of the date and time as of which the Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, conformed, in all material respects to the
requirements of the Act, and the rules and regulations of the Commission
thereunder (the "Rules and Regulations") and the Trust Indenture Act, and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and on the date of this Agreement, the Registration
Statement and the Prospectus conform, and at the time of filing of the
Prospectus pursuant to Rule 424(b) the Registration Statement and the Prospectus
will conform, in all respects with the requirements of the Act and the Rules and
Regulations and the Trust Indenture Act 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; provided, however, that this
representation and warranty shall not apply
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to any statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter specifically for
use therein, it being understood and agreed that (i) the only information
provided by the Class A Underwriters for inclusion in the Registration Statement
and the Prospectus is set forth on the cover page of the Prospectus Supplement
in the table under the headings "Class A-1 Notes" and "Class A-2 Notes" and on
the line across from "Price to Public," in the table listing the Class A
Underwriters and the Principal Amount of Class A-1 Notes and Class A-2 Notes
under the heading "Underwriting" in the Prospectus Supplement, in the second
paragraph after the table under the heading "Underwriting" in the Prospectus
Supplement, and in the third paragraph from the end of the section under the
heading "Underwriting" in the Prospectus Supplement (the "Class A Underwriters'
Information"); (ii) the only information provided by the Class B Underwriters
for inclusion in the Registration Statement and the Prospectus is set forth on
the cover page of the Prospectus Supplement in the table under the heading
"Class B Notes" and on the line across from "Price to Public," in the table
listing the Class B Underwriters and the Principal Amount of Class B Notes and
under the heading "Underwriting" in the Prospectus Supplement, in the third
paragraph after the table under the heading "Underwriting" in the Prospectus
Supplement, and in the third paragraph from the end of the section under the
heading "Underwriting" in the Prospectus Supplement (the "Class B Underwriters'
Information") and (iii) the only information provided by the Class C
Underwriters for inclusion in the Registration Statement and the Prospectus is
set forth on the cover page of the Prospectus Supplement in the table under the
headings "Class C-1 Notes" and "Class C-2 Notes" and on the line across from
"Price to Public," in the table listing the Class C Underwriters and the
Principal Amount of Class C-1 Notes and Class C-2 Notes and under the heading
"Underwriting" in the Prospectus Supplement, in the fourth and fifth paragraphs
after the table under the heading "Underwriting" in the Prospectus Supplement,
and in the third paragraph from the end of the section under the heading
"Underwriting" in the Prospectus Supplement (the "Class C Underwriters'
Information"). In addition, the statements in "Description of the Notes," "The
Indenture" and "Description of the Purchase Agreement" in the Base Prospectus
and "Description of Series Provisions" in the Prospectus Supplement, to the
extent they constitute a summary of the Notes or the Transaction Documents
constitute a fair and accurate summary thereof;
(c) The documents incorporated or deemed to be
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 Act or the Exchange Act, as applicable, and
the Rules and Regulations, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
any further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the Rules and Regulations and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
change, or any development
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involving a prospective change, in or affecting the Company or Advanta or any of
their respective subsidiaries (other than as contemplated in the Registration
Statement or the Prospectus) which would be expected to have a material adverse
effect on either (1) the ability of such person to consummate the transactions
contemplated by, or to perform its respective obligations under, this Agreement
or any of the Transaction Documents to which it is a party or (2) the Accounts
or related Receivables considered in the aggregate;
(e) The Company has been duly formed and is validly
existing as a corporation in good standing under the laws of Nevada; Advanta has
been duly incorporated and is validly existing as an industrial loan corporation
in good standing under the laws of Utah; each of the Company and Advanta has the
power and authority (corporate and/or other) to own its properties and conduct
its business to the extent described in the Prospectus and to perform its
obligations under this Agreement and the Transaction Documents to which it is a
party; and each of the Company and Advanta has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the
laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in
any such jurisdiction;
(f) As of the Time of Delivery (as defined in Section 3),
each consent, approval, authorization or order of, or filing with, any court or
governmental agency or body that is required to be obtained or made by the
Company, Advanta, the Issuer or their subsidiaries for the consummation of the
transactions contemplated by this Agreement and the Transaction Documents shall
have been obtained or made, except for such consents, approvals, authorizations,
registrations or qualifications as may be required under Blue Sky laws;
(g) Any taxes, fees and other governmental charges that
are assessed and due from the Company, Advanta, or the Issuer in connection with
the issuance of the Notes, the execution, delivery and issuance of this
Agreement and each Transaction Document shall have been paid or will be paid at
or prior to the Time of Delivery to the extent then due;
(h) This Agreement has been duly authorized, executed and
delivered by the Company and Advanta and constitutes a legal, valid and binding
agreement of the Company and Advanta enforceable in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general principles
of equity, whether enforcement is sought in a proceeding in equity or at law;
(i) The Offered Securities have been duly and validly
authorized by the Company, the direction by the Issuer to the Indenture Trustee
to authenticate the Offered Securities has been duly authorized by the Company
and, when issued pursuant to the Indenture and delivered pursuant to this
Agreement, the Offered Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Issuer, enforceable in accordance with their terms, and entitled to the
benefits provided by the Indenture under which they are to be issued, which
Indenture will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, assuming the due authorization,
execution and
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delivery thereof by the other parties thereto, the Indenture will constitute a
valid and legally binding instrument of the Issuer, enforceable in accordance
with its terms, except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization or other
similar laws affecting the enforcement of the rights of creditors and (ii)
general principles of equity, whether enforcement is sought in a proceeding in
equity or at law; assuming the due authorization, execution and delivery thereof
by the other parties thereto, each of the other Transaction Documents to which
it is a party will constitute a valid and legally binding obligation of the
Company and Advanta, as applicable, enforceable in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general principles
of equity, whether enforcement is sought in a proceeding in equity or at law;
the execution, delivery and performance by each of the Company and Advanta of
the Transaction Documents to which it is a party and the consummation of the
transactions contemplated thereby have been duly and validly authorized by all
necessary action and proceedings required of it; and the Offered Securities, the
Indenture, the Receivables Purchase Agreement, the Transfer and Servicing
Agreement and the other Transaction Documents will conform in all material
respects to the descriptions thereof in the Prospectus;
(j) The issue and sale of the Offered Securities by the
Issuer as contemplated hereby and the compliance by the Company and Advanta with
all of the provisions of this Agreement, and the compliance by each of the
Company and Advanta with all of the provisions of all of the Transaction
Documents to which it is a party and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company and Advanta is a party or by which the Company
or Advanta or any of their subsidiaries is bound or to which any of the property
or assets of the Company or Advanta is subject, nor will such action result in
any violation of the provisions of the Articles of Incorporation or By-laws of
the Company or Advanta, as applicable, or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or Advanta or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required to be obtained by the Company or Advanta
for the issue and sale of the Offered Securities by the Issuer, the consummation
by the Company or Advanta of the transactions contemplated by this Agreement or
the Transaction Documents, except the registration under the Act of the Offered
Securities and the qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by the
Underwriters;
(k) There are no legal or governmental proceedings to
which the Company or Advanta is a party or of which any property of the Company
or Advanta is the subject (i) asserting the invalidity of this Agreement, the
Offered Securities or any other Transaction Documents, (ii) seeking to prevent
the issuance of the Offered Securities or the consummation of any of the
transactions contemplated by this Agreement or any Transaction Document, (iii)
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which is reasonably expected to materially and adversely affect the performance
by the Company or Advanta, of their respective obligations under, or the
validity or enforceability of, this Agreement, the Offered Securities or the
other Transaction Documents, as applicable, (iv) seeking to affect adversely the
federal income tax attributes of the Offered Securities described in the
Prospectus or (v) which is reasonably expected to, individually or in the
aggregate, have a material adverse effect on the Accounts, the Receivables, the
Company, Advanta or the Issuer; and, to the best of the Company's and Advanta's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(l) Neither the Company nor Advanta is in violation of
its respective Articles of Incorporation or By-laws, and neither the Company nor
Advanta is in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound;
(m) None of the Company, Advanta and the Issuer is and,
after giving effect to the offering and sale of the Offered Securities and the
application of proceeds therefrom and other transactions contemplated hereby,
will be, an "investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act");
(n) The Receivables had an aggregate outstanding balance
determined as of July 1, 2003 in the amount set forth in the Prospectus
Supplement;
(o) No selection procedures materially adverse to the
holders of the Offered Securities were utilized in selecting those Receivables
transferred by Advanta to the Company from those Receivables available therefor;
(p) The Receivables have been acquired and will be
acquired by the Company under the Receivables Purchase Agreement and by the
Issuer under the Transfer and Servicing Agreement, the Company and the Issuer,
respectively, will acquire the Receivables, free and clear of any lien, charge
or encumbrance (other than as contemplated by the Transaction Documents), but
subject to the rights of the related obligors;
(q) As of the date hereof and as of the Time of Delivery,
neither Advanta nor the Company is obligated to repurchase Receivables in the
Initial Designated Accounts or in any Additional Designated Accounts (each as
defined in the Transfer and Servicing Agreement) constituting a material portion
of the aggregate Receivables in the Accounts (as defined in the Transfer and
Servicing Agreement) existing as of the Time of Delivery;
(r) As of the date hereof, the Company is wholly-owned by
Advanta and the Issuer is wholly-owned by the Company;
(s) In accordance with Generally Accepted Accounting
Principles, as currently in effect, each party to the Receivables Purchase
Agreement and the Transfer and Servicing Agreement will treat the transactions
contemplated by the Receivables Purchase
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Agreement and the Transfer and Servicing Agreement as absolute assignments of
the Receivables to the Company and to the Issuer, respectively;'
(t) Advanta represents and warrants that it has made
available to the Underwriters copies of the consolidated financial statements of
Advanta Corp. for the year ended December 31, 2002, as filed with the SEC.
Except as set forth in or contemplated in the Registration Statement and the
Prospectus or as described by Advanta Corp. in SEC filings or press releases of
general distribution, copies of which have been delivered to you, there has been
no material adverse change in the condition (financial or otherwise) of Advanta
Corp., the Company or Advanta since December 31, 2002;
(u) Each of the Company and Advanta hereby makes and
repeats each of the respective representations and warranties expressly made by
it in the Transaction Documents. Such representations and warranties are
incorporated by reference in this Section 2 and the Underwriters may rely
thereon as if such representations and warranties were fully set forth herein;
(v) Any taxes, fees and other governmental charges
arising from the execution and delivery by Advanta, the Company or the Issuer of
this Agreement, the Receivables Purchase Agreement, the Transfer and Servicing
Agreement and the Indenture and in connection with the execution, delivery and
issuance of the Offered Securities and with the transfer of the Receivables have
been paid or will be paid by the Company prior to August 15, 2003 (the "Closing
Date");
(w) KPMG LLP is an independent public accountant with
respect to Advanta and the Company within the meaning of the Act and the rules
and regulations promulgated thereunder; and
(x) The Indenture has been duly qualified under the TIA
and complies as to form with the TIA and the rules and regulations of the
Commission thereunder.
All representations, warranties and agreements made herein shall be
deemed made as of the date hereof and as of the Time of Delivery; provided,
however, that to the extent any representation or warranty relates to a specific
date, such representation and warranty shall be deemed to relate only to such
date.
3. Sale and Delivery to the Underwriters; Closing. Subject to the
terms and conditions herein set forth, the Company agrees to cause the Issuer to
issue the Offered Securities and agrees to sell the Offered Securities to each
of the Underwriters, severally and not jointly, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, the principal
amount of the Class A Notes, the Class B Notes and the Class C Notes set forth
opposite the name of such Underwriter, and at the purchase price set forth, in
Schedule A hereto.
Each class of the Offered Securities shall be represented by one or
more definitive global certificates registered in the name of Cede & Co., as
nominee for The Depository Trust
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Company ("DTC"). The Company will cause the Issuer to transfer the Offered
Securities in book-entry form to Barclays Capital Inc. (the "Representative"),
for the account of each Underwriter, against payment by the Representative (by
or on behalf of each such Underwriter or otherwise) of the purchase price
therefor by wire transfer payable to the order of the Company in federal (same
day) funds (to such account or accounts as the Company shall designate), by
causing DTC to credit the Offered Securities to the account of the
Representative at DTC. The time and date of such delivery and payment shall be
10:00 a.m., New York City time, on August 15, 2003 or such other time and date
as the Representative and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery."
The documents to be delivered at Time of Delivery by or on behalf of
the parties hereto pursuant to Section 7 hereof and the Offered Securities will
be delivered at the offices of Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), all at the Time of
Delivery. A meeting will be held at the Closing Location at 10:00 a.m., New York
time, on the New York Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 3, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are authorized or obligated by law or executive order
to close. The Company will cause the global certificates referred to above to be
made available to the Representative for checking at least 24 hours prior to the
Time of Delivery at the Closing Location.
4. Offering by Underwriters.
(a) It is understood that upon the authorization by the
Representative of the release of the Offered Securities, the Underwriters
propose and agree to offer the Offered Securities for sale upon the terms and
conditions set forth in the Prospectus.
(b) Each of the Underwriters agrees that if it is a
foreign broker or dealer not eligible for membership in the National Association
of Securities Dealers, Inc. (the "NASD"), it will not effect any transaction in
the Offered Securities within the United States or induce or attempt to induce
the purchase of or sale of the Offered Securities within the United States,
except that such Underwriter shall be permitted to make sales to the other
Underwriters or to their United States affiliates; provided that such sales are
made in compliance with an exemption of certain foreign brokers or dealers under
Rule 15a-6 under the Exchange Act, and in conformity with the Rules of Fair
Practice of the NASD as such rules apply to non-NASD brokers or dealers.
(c) Each Underwriter further represents that:
(i) it has not offered or sold and, prior to the
expiry of six months from the Closing Date, will not offer or sell, any
Offered Securities to persons in the United Kingdom, except to persons
(i) whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments, as principal or agent, for the
purposes of their businesses; or (ii) otherwise in circumstances which
have not resulted
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and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all
applicable provisions of the Financial and Markets Services ▇▇▇ ▇▇▇▇
("FISMA") with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom;
(iii) it has only communicated or caused to be
communicated and it will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within
the meaning of Section 21 of the FISMA) received by it in connection
with the issue or sale of any Offered Securities in circumstances in
which Section 21(1) of the FISMA does not apply to the issuer.
(d) Each of the Underwriters agrees with and represents
and warrants to the Company and Advanta that with respect to each potential
investor to which it sends an electronic copy of any Preliminary Prospectus or
the Prospectus it will also promptly send a printed copy of the Preliminary
Prospectus or the Prospectus, as the case may be. The Representative agrees with
the Company and Advanta that it shall provide notice to the Company and Advanta
of any electronic dissemination by the Underwriters to potential investors of
any Preliminary Prospectus or the Prospectus before such dissemination.
5. Certain Agreements of the Company and Advanta. The Company and
Advanta, jointly and severally, agree with each of the Underwriters that:
(a) The Company will prepare the Prospectus in a form
approved by the Representative (which approval will not be unreasonably
withheld) and will file such Prospectus pursuant to Rule 424(b) under the Act
not later than the date required by Rule 424; make no further amendment or any
supplement to the Registration Statement (including any post-effective amendment
and any filing under Rule 462(b) under the Act) or Prospectus which shall be
reasonably disapproved by the Representative promptly after reasonable notice
thereof; will advise the Representative, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representative with copies thereof,
will file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Offered Securities; to advise the
Representative, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of the Prospectus, of the suspension of the qualification of the Offered
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of the
Prospectus or suspending any such qualification, will promptly use its best
efforts to obtain the withdrawal of such order.
10
(b) The Company will promptly from time to time take such
action as the Representative may reasonably request to qualify the Offered
Securities for offering and sale under the securities laws of such states as the
Representative may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such states for as long as may be
necessary to complete the distribution of the Offered Securities, provided that
in connection therewith neither the Company nor the Issuer shall be required to
qualify as a foreign corporation or entity or to file a general consent to
service of process in any state.
(c) If at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event occurs as a result of
which the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company 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 and will furnish
the Representative with copies thereof. Neither the Underwriters' 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 7.
(d) As soon as practicable, the Company will make
generally available to Noteholders and to the Underwriters an earnings statement
or statements of the Company which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act. The Company will comply with the periodic
reporting requirements under the Exchange Act.
(e) During the period beginning on the date hereof and
continuing to and including the later of the Time of Delivery or the termination
of the syndicate, which shall in no event exceed 30 days from the Time of
Delivery, neither the Company nor Advanta will offer, sell, contract to sell or
otherwise dispose of any securities secured by or evidencing interests in
receivables similar to the Receivables.
(f) So long as any Offered Securities shall be
outstanding, Advanta will deliver or cause to be delivered to the Representative
the annual statement as to compliance to be delivered by Advanta to the Owner
Trustee, the Indenture Trustee and each Rating Agency pursuant to Section 3.05
of the Transfer and Servicing Agreement and the independent certified public
accountant's agreed-upon procedures report furnished to the Owner Trustee, the
Indenture Trustee, the Servicer and each Rating Agency pursuant to Section 3.06
of the Transfer and Servicing Agreement in each case as soon as such statement
is furnished to the Owner Trustee, the Indenture Trustee or the Rating Agencies,
as the case may be.
(g) The Company and Advanta will cooperate with the
Underwriters and use their best efforts to permit the Offered Securities to be
eligible for clearance and settlement through DTC.
(h) The Company will furnish such information, execute
such instruments and take such actions, if any, as the Representative may
reasonably request in connection with any
11
filing with the NASD relating to the Offered Securities should the
Representative determine that such filing is required or appropriate.
(i) So long as any of the Offered Securities are
outstanding, the Company will furnish to the Representative as soon as
practicable (i) all documents required to be distributed to the holders of the
Offered Securities or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder, (ii) all monthly reports required to be
delivered to or filed with the Indenture Trustee, (iii) all notices or requests
to or from the Rating Agencies with respect to the Offered Securities that have
been delivered to or received by the Company, (iv) any order of the Commission
under the Act or the Exchange Act applicable to the Issuer or to the Company, or
pursuant to a "no-action" letter obtained from the staff of the Commission by
the Company and affecting the Issuer or the Company and (v) from time to time,
any other publicly available information concerning the Company filed with any
government or regulatory authority, as the Representative may reasonably
request.
(j) At the Time of Delivery, the electronic ledger used
by Advanta as a master record of the Receivables conveyed by Advanta to the
Company and, in turn, conveyed by the Company to the Issuer, shall be marked in
such a manner as shall clearly indicate the Issuer's absolute ownership of such
Receivables, and from and after the Time of Delivery, neither the Company nor
Advanta nor any of their affiliates shall take any action inconsistent with the
Issuer's ownership of such Receivables, other than as permitted by the
Transaction Documents.
(k) To the extent, if any, that the rating provided with
respect to the Offered Securities by any of the Rating Agencies that initially
rate the Offered Securities is conditional upon the furnishing of documents or
the taking of any other reasonable actions by the Company or Advanta, the
Company and Advanta will use their best efforts to furnish, as soon as
practicable, such documents and take (or cause the taking of) any such other
actions.
(l) Each of the Company and Advanta will use the net
proceeds received by it from the issuance of the Offered Securities in the
manner specified in the Prospectus under the caption "Use of Proceeds."
(m) The Company will file with the Commission within
fifteen days of the issuance of the Offered Securities a current report on Form
8-K setting forth specific information concerning the Offered Securities and the
Receivables to the extent that such information is not set forth in the
Prospectus.
6. Computational Materials and ABS Term Sheets.
(a) Each Underwriter, severally, represents and warrants
to the Company and Advanta that it has not and will not use any information that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation
I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇ 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), with respect to the offering of the Offered Securities.
12
(b) Each Underwriter, severally, represents and warrants
to the Company and Advanta that it has not and will not use any information that
constitutes "ABS Term Sheets," as defined in the Commission's No-Action Letter,
dated February 17, 1995, addressed to the Public Securities Association, with
respect to the offering of the Offered Securities.
7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and Advanta herein are, at and as of the Time of
Delivery, true and correct (except to the extent that any representation or
warranty relates to a specific date, in which case such representation or
warranty shall be deemed to relate only to such date), the condition that the
Company and Advanta shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions
precedent:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representative's satisfaction.
(b) The Representative shall have received an opinion,
dated the Closing Date, of Van Cott, ▇▇▇▇▇▇, Cornwall & ▇▇▇▇▇▇▇▇, as special
Utah counsel for Advanta, satisfactory in form and substance to the
Representative and its counsel to the effect that:
(i) Advanta (x) has been duly incorporated and
is validly existing as an industrial loan corporation under the laws of
the State of Utah, with power and authority to own its properties and
conduct its business as described in the Prospectus and (y) has the
power, authority and legal right to acquire and own the Designated
Accounts and the Receivables, to sell and assign the Receivables to the
Company pursuant to the Receivables Purchase Agreement, to service the
Designated Accounts and Receivables pursuant to the Transfer and
Servicing Agreement and to enter into and perform its obligations under
this Agreement and each Transaction Document to which it is a party.
(ii) Advanta has, or at the time of execution
thereof, had, the power and authority to execute and deliver each of
the Transaction Documents to which it is a party, and Advanta had and
at all times since the time of execution thereof has had and does now
have the power to consummate the transactions contemplated herein and
in the Transaction Documents to which it is a party.
(iii) Advanta has duly authorized, executed and
delivered each Transaction Document to which it is a party.
13
(iv) This Agreement has been duly authorized,
executed and delivered by Advanta.
(v) No consent, approval, authorization or order
of, or filing of any UCC financing statements with, any court or
governmental agency or body of the State of Utah having jurisdiction
over Advanta is required for the consummation of the transactions
contemplated by this Agreement and the Transaction Documents, except
for (x) filing of UCC financing statements with respect to the
transactions contemplated in the Receivables Purchase Agreement and the
Transfer and Servicing Agreement and (y) such consents, approvals,
authorizations, orders or filings as may be required under the state
securities or blue sky laws of any jurisdiction.
(vi) The execution, delivery and performance by
Advanta of this Agreement, the transfer of the Receivables from Advanta
to the Company and, in turn, from the Company to the Issuer, the
issuance and sale of the Notes and the consummation of any other of the
transactions contemplated herein or in the Transaction Documents will
not conflict with, result in a breach of or a violation of any of the
terms of, or constitute a default under (x) the Articles of
Incorporation and Bylaws of Advanta, (y) any rule, order, statute or
regulation known to such counsel to be currently applicable to Advanta
or (z) any agreement or other instrument, known to such counsel, to
which Advanta is a party or by which it is bound.
(vii) To such counsel's knowledge, there are no
actions, proceedings or investigations pending before any court,
administrative agency or other tribunal (v) asserting the invalidity of
this Agreement, any of the Transaction Documents or the Notes, (w)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by this Agreement or the Transaction
Documents, (x) which might materially and adversely affect the
performance by Advanta of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction Documents
to which it is a party or (y) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Base Prospectus
under the heading "Federal Income Tax Consequences."
(c) The Representative shall have received an opinion,
dated the Closing Date, of ▇▇▇▇▇▇▇▇ and Wedge, as special Nevada counsel for the
Company, satisfactory in form and substance to the Representative and its
counsel to the effect that:
(i) The Company (x) has been duly incorporated
and is validly existing as a corporation under the laws of the State of
Nevada, with power and authority to own its properties and conduct its
business as described in the Prospectus and (y) has the power,
authority and legal right to acquire and own the Receivables, to sell
and assign the Receivables to the Issuer pursuant to the Transfer and
Servicing Agreement and to enter into and perform its obligations under
this Agreement and each Transaction Document to which it is a party.
14
(ii) The Company has, or at the time of execution
thereof, had, the power and authority to execute and deliver each of
the Transaction Documents to which it is a party, and the Company had
and at all times since the time of execution thereof has had and does
now have the power to consummate the transactions contemplated herein
and in the Transaction Documents to which it is a party.
(iii) The Company has duly authorized, executed
and delivered each Transaction Document to which it is a party.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
(v) No consent, approval, authorization or order
of, or filing of any UCC financing statements with, any court or
governmental agency or body of the State of Nevada having jurisdiction
over the Company is required for the consummation of the transactions
contemplated by this Agreement and the Transaction Documents, except
for (x) filing of UCC financing statements with respect to the
transactions contemplated in the Receivables Purchase Agreement and the
Transfer and Servicing Agreement and (y) such consents, approvals,
authorizations, orders or filings as may be required under the state
securities or blue sky laws of any jurisdiction.
(vi) The execution, delivery and performance by
the Company of this Agreement, the transfer of the Receivables from the
Company to the Issuer, the issuance and sale of the Notes and the
consummation of any other of the transactions contemplated herein or in
the Transaction Documents will not conflict with, result in a breach of
or a violation of any of the terms of, or constitute a default under
(x) the Articles of Incorporation and Bylaws of the Company or (y) any
rule, order, statute or regulation known to such counsel to be
currently applicable to the Company.
(vii) To such counsel's knowledge, there are no
actions, proceedings or investigations pending before any court,
administrative agency or other tribunal (v) asserting the invalidity of
this Agreement, any of the Transaction Documents or the Notes, (w)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by this Agreement or the Transaction
Documents, (x) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction Documents
to which it is a party or (y) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Base Prospectus
under the heading "Federal Income Tax Consequences."
(d) The Representative shall have received an opinion
dated the Closing Date, of Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, special
counsel to the Company and Advanta, satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) Each of the Transaction Documents to which
the Company or Advanta is a party constitutes the legal, valid and
binding obligation of each of them, as
15
applicable, under the laws of the State of New York enforceable against
the Company and Advanta, as applicable, in accordance with its terms.
(ii) This Agreement constitutes the legal, valid
and binding obligation of the Company and Advanta under the laws of the
State of New York, enforceable against the Company and Advanta in
accordance with its terms.
(iii) The Notes, when executed and authenticated
in accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with this Agreement, will be duly
and validly issued and outstanding, will constitute legal, valid and
binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms and will be entitled to the benefits of the
Indenture.
(iv) The statements in the Base Prospectus under
the headings "Prospectus Summary -- Tax Status, " and "-- ERISA
Considerations," "Risk Factors -- If a receiver or conservator were
appointed for a seller or a transferor that is a bank, or if a seller
or a transferor that is not a bank became a debtor in a bankruptcy
case, delays or reductions in payment of your notes could occur,"
"Material Legal Aspects of the Receivables," "ERISA Considerations" and
"Federal Income Tax Consequences" and the statements in the Prospectus
Supplement under the headings "Summary of Terms -- Tax Status" and "--
ERISA Considerations" and "ERISA Considerations," to the extent they
constitute matters of law or legal conclusions with respect thereto,
have been reviewed by us and are correct in all material respects.
(v) This Agreement, the Transaction Documents
and the Notes conform in all material respects to the descriptions
thereof contained in the Prospectus.
(vi) The Indenture has been duly qualified under
the TIA and complies as to form with the TIA and the rules and
regulations of the Commission thereunder. The Issuer is not now, and
immediately following the sale of the Notes pursuant to this Agreement
and the application of proceeds therefrom as described in the
Prospectus will not be, required to be registered under the Investment
Company Act of 1940, as amended.
(vii) Subject to the discussion in the Prospectus
under the heading "Federal Income Tax Consequences," (a) the Notes will
properly be characterized as indebtedness, (b) the Issuer will not be
classified as an association (or publicly traded partnership) taxable
as a corporation, for U.S. federal income tax purposes, (c) the
issuance of the Notes will not adversely affect the tax
characterization as debt of any notes of any outstanding series or
class that were characterized as debt for federal income tax purposes
at the time of their issuance and (d) the issuance of the Notes will
not cause or constitute an event in which gain or loss would be
recognized by any noteholder.
(viii) The Indenture, the Administration Agreement
and the Transfer and Servicing Agreement constitute the legal, valid
and binding obligation of the Issuer under the laws of the State of New
York.
16
(ix) The Registration Statement and the
Prospectus (other than the financial and statistical information
contained therein) on their respective effective dates or dates of
issuance complied as to form in all material respects to the applicable
requirements of the Act and the Rules and Regulations.
(x) Such counsel shall state that they have
participated in conferences with representatives of the Company and
Advanta and their accountants, the Underwriters and counsel to the
Underwriters concerning the Registration Statement and the Prospectus
and have considered the matters to be stated therein and the matters
stated therein, although they are not independently verifying the
accuracy, completeness or fairness of such statements (except as stated
in paragraph (iv) above) and based upon and subject to the foregoing,
nothing has come to such counsel's attention to cause such counsel to
believe that the Registration Statement (excluding any exhibits filed
therewith), at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date hereof,
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
has not been requested to, and does not, make any comment in such
opinion with respect to the financial statements, supporting schedules
and other financial or statistical information contained in the
Registration Statement or the Prospectus).
(xi) If the FDIC is appointed as conservator or
receiver for Advanta, the FDIC would not be able to reclaim the
Receivables and the proceeds transferred to the Company or avoid the
Receivables Purchase Agreement.
(xii) No authorization, consent, order or approval
of, or registration or declaration with, any Governmental Authority is
required under the federal law of the United States or the laws of the
State of New York, in connection with the execution, delivery and
performance of any of the Documents or the consummation of any
transaction contemplated thereby by Advanta, the Company or the Issuer.
(xiii) To our actual knowledge, there are no
actions, proceedings or investigations pending or threatened against
Advanta, the Company or the Issuer before any Governmental Authority
(a) asserting the invalidity of any of the Documents or of the Notes,
(b) which would have a material adverse effect on the Noteholders or
upon the ability of Advanta, the Company or the Issuer to perform its
obligations under this Agreement, the Transaction Documents or the
Notes, (c) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by the Documents,
(d) seeking to adversely affect the income tax attributes of the Notes
under the income tax laws of the United States as described in the
Prospectus under the heading "Federal Income Tax Consequences."
17
(xiv) None of the execution, delivery or
performance by Advanta, the Company or the Issuer of the Documents to
which it is a party (a) conflicts with or violates any law, rule or
regulation of the United States or the State of New York or, to our
actual knowledge, any other Requirement of Law applicable to Advanta,
the Company or the Issuer or (b) conflicts with or results in any
breach of the material terms or provisions of, or constitutes a
material default under any indenture, contract, agreement, mortgage,
deed of trust or other instrument, to which any of Advanta, the Company
or the Issuer is a party or by which it or its properties are bound and
as to which we have actual knowledge.
(xv) The Registration Statement is effective
under the Act, and to such counsel's actual knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act, and no proceedings for that purpose have been
initiated or threatened by the Commission.
(e) The Representative shall have received from ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to such matters relating to
this transaction as the Representative and its counsel may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received an opinion,
dated the Closing Date, of Van Cott, ▇▇▇▇▇▇, Cornwall & ▇▇▇▇▇▇▇▇, special Utah
counsel for Advanta, satisfactory in form and substance to the Representative
and its counsel with respect to (i) certain matters relating to the transfer of
the Receivables from Advanta to the Company and (ii) the perfection of the
security interest in favor of the Company in the Receivables and the proceeds
thereof.
(g) The Representative shall have received an opinion,
dated the Closing Date, of ▇▇▇▇▇▇▇▇ and Wedge, special Nevada counsel for the
Company, satisfactory in form and substance to the Representative and its
counsel, with respect to (i) certain matters relating to the transfer of the
Receivables from the Company to the Issuer, and (ii) the perfection of the
security interest in favor of the Issuer in the Receivables and the proceeds
thereof.
(h) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Issuer dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel, with
respect to the perfection of the Indenture Trustee's interest in the Collateral.
(i) The Representative shall have received a certificate
from each of the Company and Advanta, dated the Closing Date, of any Vice
President or more senior officer of the Company or Advanta, as the case may be,
in which such officer, to the best of his knowledge after reasonable
investigation, shall state that (v) the Company or Advanta, as the case may be,
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, (w) the
representations and warranties of the Company or Advanta, as the case may be,
contained in this Agreement and the Transaction Documents to which it is a party
are true and correct as of the dates specified herein and therein
18
and as of 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) neither the
Registration Statement nor the Prospectus, and any amendment or supplement
thereto, as of its date and as of the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits 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 the Company's business or the
business card unit of Advanta, as the case may be, except as set forth in or
contemplated by the Prospectus.
(j) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) The Owner Trustee is duly incorporated and
validly existing as a banking corporation in good standing under the
laws of the State of Delaware.
(ii) The Owner Trustee has the power and
authority to execute, deliver and perform the Trust Agreement and to
consummate the transactions contemplated thereby.
(iii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee and constitutes
a legal, valid and binding obligation of the Owner Trustee, enforceable
against the Owner Trustee in accordance with its terms.
(iv) Each of the Indenture, the Trust Agreement
and the Transfer and Servicing Agreement (collectively referred to in
this subsection (i) as the "Trust Documents") has been duly executed
and delivered by the Owner Trustee, as Owner Trustee on behalf of the
Issuer.
(v) Neither the execution, delivery or
performance by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
contemplated thereby, requires the consent or approval of, the
withholding of objection on the part of, the giving of notice to, the
filing, registration or qualification with, or the taking of any other
action in respect of, any governmental authority or agency of the State
of Delaware or the United States of America governing the banking or
trust powers of the Owner Trustee.
(vi) Neither the execution, delivery and
performance by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, of the Trust Documents, nor the
consummation of the transactions by the Owner Trustee, in its
individual capacity or as Owner Trustee, as the case may be,
contemplated thereby, is in violation of the charter or bylaws of the
Owner Trustee or of any law, governmental rule or regulation of the
State of Delaware or of the United States of America governing the
19
banking or trust powers of the Owner Trustee or, to such counsel's
knowledge, without independent investigation, or any indenture,
mortgage, bank credit agreement, note or bond purchase agreement,
long-term lease, license or other agreement or instrument to which it
is a party or by which it is bound or, to such counsel's knowledge,
without independent investigation, of any judgment or order applicable
to the Owner Trustee.
(vii) No consent, approval or other authorization
of, or registration, declaration or filing with, any court or
governmental agency or commission of the State of Delaware is required
by or with respect to the Owner Trustee, in its individual capacity or
as Owner Trustee, as the case may be, for the valid execution and
delivery of the Trust Documents, or for the validity or enforceability
thereof.
(viii) To such counsel's knowledge, without
independent investigation, there are no pending or threatened actions,
suits or proceedings affecting the Owner Trustee before any court or
other governmental authority which, if adversely determined, would
materially and adversely affect the ability of the Owner Trustee to
carry out the transactions contemplated by the Trust Agreement.
(k) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Issuer, dated the
Closing Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Issuer is validly existing as a common
law trust under the laws of the State of Delaware.
(ii) The Trust Agreement constitutes a legal,
valid and binding obligation of the Owner Trustee, enforceable against
the Owner Trustee and the Transferor, in accordance with its terms.
(iii) Under the Trust Agreement, the execution and
delivery of the Transfer and Servicing Agreement and the Indenture, the
issuance of the Notes and the Transferor Beneficial Interest and the
granting of the Trust Estate to the Indenture Trustee as security for
the Notes have been duly authorized by all necessary trust action on
the part of the Issuer.
(iv) The Issuer has the power and authority,
pursuant to the Trust Agreement, to execute, deliver and perform its
obligations under the Trust Agreement, the Indenture and the Transfer
and Servicing Agreement (collectively referred to in this subsection
(j) as the "Trust Documents") and the Notes and has duly executed and
delivered such agreements and obligations;
(v) When issued in accordance with the Trust
Agreement, the Transferor Beneficial Interest will be validly issued
and entitled to the benefits of the Trust Agreement.
20
(vi) Neither the execution, delivery and
performance by the Issuer of the Trust Documents, the Notes or the
Transferor Beneficial Interest nor the consummation by the Issuer of
any of the transactions by the Issuer contemplated thereby, requires
the consent or approval of, the withholding of objection on the part
of, the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any governmental
authority or agency of the State of Delaware, other than the filing of
any financing statements with the Delaware Secretary of State in
connection with the Trust Documents.
(vii) Neither the execution, delivery and
performance by the Issuer of the Trust Documents, nor the consummation
by the Issuer of the transactions contemplated thereby, is in violation
of the Trust Agreement or of any law, rule or regulation of the State
of Delaware applicable to the Issuer.
(viii) With respect to the Issuer and the
Receivables: (a) there is no document, stamp, excise or other similar
tax imposed by the State of Delaware upon the perfection of a security
interest in the Receivables, in the transfer of the Receivables to or
from the Issuer, or upon the issuance of the Notes; (b) there is no
personal property tax imposed by the State of Delaware upon or measured
by the corpus of the Issuer; (c) the characterization of the Issuer for
federal income tax purposes will be determinative of the
characterization of the Issuer for Delaware income tax purposes and
assuming that the Issuer will be taxed as a partnership for federal
income tax purposes, the Issuer will not be subject to Delaware income
tax and Noteholders who are not otherwise subject to Delaware income
tax will not be subject to tax by reason of their ownership of the
Notes and the receipt of income therefrom; and (d) any income tax
imposed by the State of Delaware that might be applicable to the Issuer
would be based upon "federal taxable income," and for the purposes of
determining such income, the characterization of such income for
federal income tax purposes will be determinative, whether the
characterization of the transaction is that of a sale or a loan.
(l) The Representative shall have received an opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) The Indenture Trustee is validly existing as
a banking corporation under the laws of the State of New York and has
the power and authority to execute, deliver and perform its obligations
under the Indenture.
(ii) The acknowledgment by the Indenture Trustee
of the Transfer and Servicing Agreement has been duly authorized,
executed and delivered by the Indenture Trustee. The Indenture Trustee
has duly authorized, executed and delivered the Indenture. Assuming the
due authorization, execution and delivery thereof by the other parties
thereto, the Indenture is the legal, valid and binding agreement of the
Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its terms.
21
(iii) The Notes have been duly authenticated and
delivered by the Indenture Trustee.
(iv) Neither the execution and delivery of the
Notes, the acknowledgment of the Transfer and Servicing Agreement, nor
the execution, delivery and the performance of the Indenture by the
Indenture Trustee conflicts with or will result in a violation of (A)
any law or regulation of the United States of America or the State of
New York governing the banking or trust powers of the Indenture Trustee
or (B) the Articles of Incorporation or Bylaws of the Indenture
Trustee.
(v) No approval, authorization or other action
by, or filing with, any governmental authority of the United States of
America or the State of New York having jurisdiction over the banking
or trust powers of the Indenture Trustee is required in connection with
the execution and delivery by the Indenture Trustee of the Indenture or
the performance by the Indenture Trustee of the terms of the Indenture
or the acknowledgment of the Transfer and Servicing Agreement.
(m) The Representative shall have received reliance
letters addressed to the Representative, dated as of the Closing Date, allowing
the Representative to rely on each opinion of counsel delivered to a Rating
Agency, the Indenture Trustee, the Company or Advanta in connection with the
issuance of the Notes.
(n) At the Time of Delivery, KPMG LLP shall have
furnished to the Representative a letter, dated the date of delivery thereof, in
form and substance satisfactory to the Representative, containing a statement to
the effect that KPMG LLP is an independent public accountant with respect to the
Company and Advanta, as defined in the Act and the rules and regulations of the
Commission thereunder and to the effect that they have performed certain
specified procedures requested by the Underwriters with respect to the
information set forth in the Prospectus and the Registration Statement.
(o) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
shall not have been any change, or any development involving a prospective
change, in or affecting the Company or Advanta (other than as contemplated in
the Registration Statement) which, in the reasonable judgment of the
Representative, would be expected to have an adverse effect on either (a) the
ability of such person to consummate the transactions contemplated by, or to
perform its respective obligations under, this Agreement or any of the
Transaction Documents to which it is a party or (b) the Receivables that, in
either case, would make it impractical or inadvisable to proceed with the
offering or the delivery of the Offered Securities as contemplated by the
Registration Statement and the Prospectus (and any supplements thereto).
(p) At the Time of Delivery, (i) the Class A Notes, the
Class B Notes and the Class C Notes shall be rated by ▇▇▇▇▇'▇ Investors Service,
Inc. ("Moody's") at least "Aaa", "A2" and "Baa2", respectively, and (ii) the
Class A Notes, the Class B Notes and the Class C Notes shall be rated by
Standard & Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard &
Poor's") at least "AAA", "A" and "BBB", respectively.
22
(q) Subsequent to the execution and delivery of this
Agreement none of the following shall have occurred: (i) 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 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; (ii) a banking moratorium shall have been declared by
Federal or state authorities; (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation of hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States; (iv) a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States or
with respect to Clearstream or Euroclear systems in Europe, or (v) there shall
have occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets of the United States shall be such) as to make it, in the judgment of
the Underwriters, impractical or inadvisable to proceed with the public offering
or delivery of the Notes on the terms and in the manner contemplated in the
Prospectus.
(r) The Representative shall have received such further
information, certificates and documents as the Representative may reasonably
have requested not fewer than three (3) full business days prior to the Closing
Date.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all respects when and as provided in this Agreement, if the
Company or Advanta is in breach of any covenants or agreements contained herein
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel to the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled on,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company and Advanta in writing, or by
telephone or telegraph confirmed in writing.
8. Indemnification and Contribution.
(a) The Company and Advanta, jointly and severally, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, from and against (i) any and all losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (x) an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or (y) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, and will promptly reimburse each Underwriter, their respective
directors and officers and each person who controls the Underwriter within the
meaning of Section 15 of the Act, for any legal or other expenses reasonably
incurred by any Underwriter and such other indemnified persons in connection
with investigating, preparing or
23
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company and Advanta shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or the
Prospectus in reliance upon and in conformity with the Class A Underwriters'
Information, the Class B Underwriters' Information or the Class C Underwriters'
Information.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company and Advanta, their respective directors
and officers and each person, if any who controls the Company or Advanta, as the
case may be, within the meaning of Section 15 of the Act, against (i) any
losses, claims, damages or liabilities, joint or several, to which the Company,
Advanta or such indemnified person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (x) an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or (y) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, in each case to the extent, but only to the extent, that, with
respect to each of the Class A Underwriters, the Class B Underwriters and the
Class C Underwriters, such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
the Class A Underwriters' Information, the Class B Underwriters' Information or
the Class C Underwriters' Information, respectively, and will reimburse any
legal or other expenses reasonably incurred by the Company and Advanta in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; and will reimburse the
Company and Advanta, their respective directors and officers and each person who
controls the Company or Advanta within the meaning of Section 15 of the Act, for
any legal or other expenses reasonably incurred by the Company, Advanta and such
other indemnified persons in connection with investigating, preparing or
defending any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or commencement thereof; 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, however, 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.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who may be counsel to the indemnifying party); provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing (with a copy to
24
the indemnifying party) by counsel that representation of such indemnified party
and the indemnifying party is inappropriate under applicable standards of
professional conduct due to actual or potential differing interests between
them, the indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties. It
is understood that the indemnifying party shall, in connection with any such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys together with appropriate local counsel at any time from all
indemnified parties not having actual or potential differing interests with any
other indemnified party. The indemnifying party will not be liable for any
settlement entered into without its consent and will not be liable to such
indemnified party under this Section 8 for any legal or other expenses incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and provided that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and does not include a statement as to, or an admission of,
fault, culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and Advanta on the one
hand and the Underwriters on the other from the offering of the Offered
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and Advanta on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Advanta on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
purchased under this Agreement (before deducting expenses) received by the
Company and Advanta bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Securities purchased
under this Agreement, in each case as set forth
25
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or Advanta on the
one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, Advanta and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating, preparing or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be obligated to contribute any amount in excess of the underwriting
discount applicable to the Offered Securities purchased by such Underwriter
under this Agreement. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and Advanta under this
Section 8 shall be in addition to any liability which the Company and Advanta
may otherwise have and shall extend, upon the same term and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or Advanta who has signed the Registration Statement and to each person,
if any, who controls the Company or Advanta within the meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder at the
Time of Delivery, the remaining Underwriters (the "Non-Defaulting Underwriters")
shall have the right, but not the obligation, to make arrangements satisfactory
to the Representative and the Company for the purchase of such Offered
Securities by other persons within 36 hours after such default; if, however, the
Non-Defaulting Underwriters shall not have completed such arrangements within
such 36 hour period, then this Agreement shall terminate without liability on
the part of any Non-Defaulting Underwriter, Advanta or the Company, except as
provided in Sections 10 and 11 herein. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
In the event of any such default which does not result in a termination
of this Agreement, any of the Non-Defaulting Underwriters or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required change in the Registration Statement or
Prospectus or in any other documents or arrangements.
26
10. Reimbursement of Expenses.
(a) If (x) no closing of the sale of the Offered
Securities occurs by the Closing Date through no fault of the Company or Advanta
or because the conditions set forth in Section 7 have not been met, or (y) the
Underwriters terminate the engagement pursuant to Section 13 or because any
conditions precedent in Section 7 have not been fulfilled, then the Company's or
Advanta's liability to the Underwriters shall be limited to the reimbursement of
the Underwriters' expenses incurred through the date of termination for their
reasonable out-of-pocket and incidental expenses excluding the fees and expenses
of Underwriters' counsel (except that the fees and expenses of Underwriters'
counsel shall be included in such reimbursement if the failure to close was
caused by action of or failure to act by the Company or Advanta).
(b) In addition, whether or not the Offered Securities
are issued or sold, the Company or Advanta shall pay the reasonable fees and
expenses associated with the transactions contemplated hereby not paid by the
Underwriters in accordance with the provisions of Section 10(c) including,
without limitation, the following fees and expenses:
(i) rating agency fees payable with respect to
their ratings of the Offered Securities;
(ii) any fees charged by the firm of independent
public accountants referred to in Section 7(n);
(iii) filing fees in connection with the
transactions contemplated hereby including, but not limited to, the
Commission;
(iv) the Owner Trustee's and Indenture Trustee's
fees and expenses and reasonable fees and expenses of counsel to the
Owner Trustee and Indenture Trustee;
(v) the costs and expenses of printing the
Prospectus (except the amount to be paid by the Underwriters in Section
10(c) below);
(vi) the costs of printing or reproducing this
Agreement, the Blue Sky Survey, if applicable, and any other documents
in connection with the offer, sale and delivery of the Offered
Securities;
(vii) all expenses in connection with the
qualification of the Offered Securities under state securities laws,
including the fees and disbursements of counsel in connection with the
Blue Sky Survey, if applicable;
(viii) the cost of preparing the Offered
Securities;
(ix) the cost or expenses of any transfer agent
or registrar;
27
(x) the costs and expenses of listing the
Offered Securities on the Luxembourg Stock Exchange (except the amount
to be paid by the Underwriters in Section 10(c) below); and
(xi) all other costs and expenses incident to the
performance of their obligations hereunder which are not otherwise
specifically provided for in this Section 10; provided, that neither
the Company nor Advanta waives any rights to reimbursement from the
Underwriters in the event of any Underwriter's failure to perform in
accordance with this Agreement.
(c) It is understood and agreed that, except as provided
in Sections 8, 10(a) and 11, the Underwriters will pay (i) securities transfer
taxes on resale of any of the Offered Securities by them, (ii) 50 % of costs and
expenses of printing the Prospectus and the Prospectus Supplement subject to a
maximum amount of $30,000, (iii) any advertising expenses connected with any
offers they may make, (iv) the costs and expenses of listing the Offered
Securities on the Luxembourg Stock Exchange subject to a maximum amount of
$2,500 and (v) fees and expenses of counsel to the Underwriters.
11. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, Advanta and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company
or Advanta, or any officer or director or controlling person of the Company or
Advanta, and shall survive delivery of and payment for the Offered Securities.
If this Agreement is terminated pursuant to Section 9 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 10, and the respective obligations of the
Company and the Underwriters pursuant to Section 8 shall remain in effect, and
if any Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 9, the Company will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including fees, expenses and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Offered Securities, but neither Advanta nor the Company
shall then be under any further liability to any Underwriter except as provided
in Sections 8 and 10 hereof.
12. Notices. All statements, requests and notices hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the Representative in care of Barclays
Capital Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: Syndicate Desk
with a copy to the same address to the attention of the legal department; if to
the Company shall be delivered or sent by mail, telex or facsimile transmission
to the address of the Company set forth in the Registration Statement,
Attention: General Counsel; and if to Advanta shall be delivered or sent by
mail, telex or facsimile transmission
28
to Advanta Bank Corp., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇,
Attention: Treasury, provided, however, that any notice to an Underwriter
pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representative upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
13. Termination.
(a) The Underwriters may terminate this Agreement
immediately upon the giving of notice at any time at or prior to the Closing
Date if any of the events or conditions described in Section 7(q) of this
Agreement shall occur and be continuing. In the event of any such termination,
the covenant set forth in the provisions of Section 10, the indemnity agreement
set forth in Section 8, and the provision of Section 11 shall remain in effect.
(b) This Agreement may not be terminated by the Company
or Advanta without the written consent of the Underwriters, except in accordance
with law.
(c) Notwithstanding anything herein to the contrary, in
the event the Company or Advanta does not perform any obligation under this
Agreement or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the Underwriters'
obligations hereunder may be immediately cancelled by the Underwriters by notice
thereof to the Company or Advanta. Any such cancellation shall be without
liability of any party to any other party except that the provisions of Sections
8, 10 and 11 hereof shall survive any such cancellation.
14. Successors. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and Advanta and, to the
extent provided in Sections 8 and 11 hereof, the officers and directors of the
Company and Advanta and each person who controls the Company and Advanta or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Representation of Underwriters. In all dealings hereunder, you
shall act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you.
16. Time of the Essence. Time shall be of the essence of this
Agreement.
17. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
29
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
The Company and Advanta hereby submit to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
19. Miscellaneous. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
[SIGNATURE PAGE FOLLOWS]
30
If you are in agreement with the foregoing, please sign and return to
us a counterpart hereof for each of the Company and Advanta and for each of the
Underwriters and each counsel to the parties hereto, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, Advanta, and the Company.
Very truly yours,
ADVANTA BUSINESS RECEIVABLES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
ADVANTA BANK CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of the
date first above written.
Barclays Capital Inc.,
as Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------
Authorized Representative
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
SCHEDULE A
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
CLASS A UNDERWRITERS OF CLASS A-1 NOTES OF CLASS A-2 NOTES
-----------------------------------------------------------------------------------------------------------------
Barclays Capital Inc............................................. $ 70,000,000 $10,000,000
Deutsche Bank Securities Inc. ................................... $ 70,000,000 $10,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 70,000,000 $10,000,000
----------------------------------------
Total............................................................ $210,000,000 $30,000,000
========================================
PRINCIPAL AMOUNT
CLASS B UNDERWRITERS OF CLASS B NOTES
------------------------------------------------------------------------------------
Barclays Capital Inc............................................. $ 9,250,000
Deutsche Bank Securities Inc. ................................... $ 9,250,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 9,250,000
-----------
Total............................................................ $27,750,000
===========
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
CLASS C UNDERWRITERS OF CLASS C-1 NOTES OF CLASS C-2 NOTES
-----------------------------------------------------------------------------------------------------------------
Barclays Capital Inc............................................. $ 3,334,000 $ 3,918,000
Deutsche Bank Securities Inc. ................................... $ 3,333,000 $ 3,916,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated $ 3,333,000 $ 3,916,000
----------------------------------------
Total $10,000,000 $11,750,000
========================================
Purchase Price (as a percentage of the principal amount of each class of Offered
Securities)
Class A-1: 99.825%
Class A-2: 99.825%
Class B: 99.750%
Class C-1: 99.500%
Class C-2: 99.039%