Exhibit 1.1
EXECUTION COPY
ADVANTA BUSINESS CARD MASTER TRUST
AdvantaSeries Class A(2005-A4) Asset Backed Notes
UNDERWRITING AGREEMENT
November 29, 2005
Deutsche Bank Securities Inc.
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Credit Suisse First Boston LLC
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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 $150,000,000 aggregate principal amount of Advanta Business
Card Master Trust AdvantaSeries Class A(2005-A4) Asset Backed 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
AdvantaSeries Indenture Supplement with respect to the Notes dated as of
November 1, 2004 and, with respect to the Notes, as further supplemented by the
Class A(2005-A4) Terms Document dated as of December 6, 2005 (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 revolving business purpose 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 Notes
listed on Schedule A hereto (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 Notes 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) which has been amended by
Post-Effective Amendment Number 1 filed with the Commission on August 4, 2004
and declared effective by the Commission on August 19, 2004. The registration
statement, as so amended, includes a representative form of prospectus
supplement, relating to the Notes and the offering thereof from time to time in
accordance with Rule 415 under the Act. Such registration statement, as amended,
has been declared effective by the Commission, and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). The 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 Notes, 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
Notes 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 Notes, 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
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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 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 to any statements or omissions made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein, it being understood and agreed that the only
information provided by the Underwriters for inclusion in the Registration
Statement and the Prospectus is set forth on the cover page of the Prospectus
Supplement under the column "Class A(2005-A4) Notes" and on the line across from
"Price to Public," in the table listing the Underwriters and the Principal
Amount of Class A(2005-A4) Notes under the heading "Underwriting" in the
Prospectus Supplement, in the second paragraph after the tables 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 "Underwriters' Information"). In addition, the statements in
"Description of the Notes," "The Indenture" and "Description of the Receivables
Purchase Agreement" in the Base Prospectus and "Description of Series and
Tranche 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
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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 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 bank 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)
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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 Notes have been duly and validly authorized by the Company,
the direction by the Issuer to the Indenture Trustee to authenticate the Notes
has been duly authorized by the Company and, when issued pursuant to the
Indenture and delivered pursuant to this Agreement, the Notes 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 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
Notes, 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 Notes 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 Notes by the Issuer, the consummation by the Company or
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Advanta of the transactions contemplated by this Agreement or the Transaction
Documents, except the registration under the Act of the Notes 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 Notes 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 Notes or any
other Transaction Documents, (ii) seeking to prevent the issuance of the Notes
or the consummation of any of the transactions contemplated by this Agreement or
any Transaction Document, (iii) which is reasonably expected to materially and
adversely affect the performance by the Company or Advanta, of their respective
obligations under, or the validity or enforceability of, this Agreement, the
Notes or the other Transaction Documents, as applicable, (iv) seeking to affect
adversely the federal income tax attributes of the Notes 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 Notes 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 the close of business on October 31, 2005 in the amount set forth in the
Prospectus Supplement;
(o) No selection procedures materially adverse to the holders of the
Notes 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;
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(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 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, 2004 and the nine-month period ended September
30, 2005, 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
September 30, 2005;
(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
Notes and with the transfer of the Receivables have been paid or will be paid by
the Company prior to December 6, 2005 (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.
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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
Notes and agrees to sell the Notes 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 Notes set forth opposite
the name of such Underwriter, and at the purchase price set forth, in Schedule A
hereto.
The Notes shall be represented by one or more definitive global
certificates registered in the name of Cede & Co., as nominee for The Depository
Trust Company ("DTC"). The Company will cause the Issuer to transfer the Notes
in book-entry form to Deutsche Bank Securities Inc. and Credit Suisse First
Boston LLC (the "Representatives"), for the account of each Underwriter, against
payment by the Representatives (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 Notes to the account of
the Representatives at DTC. The time and date of such delivery and payment shall
be 10:00 a.m., New York City time, on December 6, 2005 or such other time and
date as the Representatives 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 Notes will be delivered at
the offices of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), all at the Time of Delivery. Final
drafts of the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto on the New York Business Day
preceding the time of Delivery. 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 Representatives 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
Representatives of the release of the Notes, the Underwriters propose and agree
to offer the Notes 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 Notes
within the United States or induce or attempt to induce the purchase of or sale
of the Notes 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.
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(c) Each Underwriter further represents that:
(i) it has complied and will comply with all applicable
provisions of the Financial Services and Markets ▇▇▇ ▇▇▇▇ ("FSMA") with
respect to anything done by it in relation to the Notes in, from or
otherwise involving the United Kingdom; and
(ii) 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 FSMA) received by it in connection with the issue or sale of any
Notes in circumstances in which Section 21(1) of the FSMA does not apply to
the issuer.
(d) In relation to each Member State of the European Economic Area
(the European Union plus Ireland, Norway and Liechtenstein) which has
implemented the Prospectus Directive (each, a "Relevant Member State"), each
Underwriter has represented and agreed that with effect from and including the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the "Relevant Implementation Date") it has not made and will not make an
offer of the Notes to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Notes which has been approved by
the competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in the Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant
Implementation Date, make an offer of Notes to the public in that Relevant
Member State at any time:
(i) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or regulated,
whose corporate purpose is solely to invest in securities;
(ii) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year; (2) a total
balance sheet of more than E43,000,000 and (3) an annual net turnover of
more than E50,000,000, as shown in its last annual or consolidated
accounts; or
(iii) in any other circumstances which do not require the
publication by the Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the purposes of the above paragraph, the expression an "offer of Notes to
the public" in relation to any Notes in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the Notes to be offered so as to enable an investor to
decide to purchase or subscribe the Notes in that Member State and the
expression "Prospectus Directive" means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
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(e) 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 Representatives agree with the Company and
Advanta that they 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
Representatives (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 Representatives promptly after reasonable notice thereof;
will advise the Representatives, 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 Representatives 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 Notes; to advise the Representatives, 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 Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of the Prospectus or suspending any such qualification, will
promptly use its best efforts to obtain the withdrawal of such order.
(b) The Company will promptly from time to time take such action as
the Representatives may reasonably request to qualify the Notes for offering and
sale under the securities laws of such states as the Representatives 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 Notes, 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
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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 Representatives
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 Business Day following the Closing Date, neither the Company
nor Advanta will offer, sell, contract to sell or otherwise dispose of any
credit card backed securities with the same term and other characteristics
identical to the Notes without the prior written consent of the Representatives.
(f) So long as any Notes shall be outstanding, Advanta will deliver or
cause to be delivered to the Representatives 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 Notes 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 Representatives may reasonably
request in connection with any filing with the NASD relating to the Notes should
the Representatives determine that such filing is required or appropriate.
(i) So long as any of the Notes are outstanding, the Company will
furnish to the Representatives as soon as practicable (i) all documents required
to be distributed to the holders of the Notes 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
Notes 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 Representatives may
reasonably request.
11
(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 Notes by any of the Rating Agencies that initially rate the Notes 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 Notes in the manner specified in the Prospectus
Supplement and Prospectus under the caption "Use of Proceeds."
(m) The Company will file with the Commission within four days of the
issuance of the Notes a current report on Form 8-K setting forth specific
information concerning the Notes 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 Notes.
(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 Notes.
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:
12
(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 Representatives' satisfaction.
(b) The Representatives 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 Representatives and their
counsel to the effect that:
(i) Advanta (x) has been duly incorporated and is validly
existing as an industrial bank 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.
(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
13
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 Representatives 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 Representatives and their 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.
(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
14
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 Representatives shall have received opinions dated the Closing
Date, of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP and Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, each as
special counsel to the Company and Advanta, satisfactory in form and substance
to the Representatives and their counsel, together such opinions will cover each
of the following matters and be 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 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
15
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) following the issuance of the Notes, 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.
(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, as
applicable, 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
16
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 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."
(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 any determination of an arbitrator or
Governmental Authority applying federal or New York State law 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 knowledge.
(xv) The Registration Statement is effective under the Act, and
to such counsel's 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.
17
(e) The Representatives 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 Representatives and their 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 Representatives 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 Representatives and their
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 Representatives 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 Representatives and their 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 Representatives shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to the Issuer dated the Closing Date, satisfactory in
form and substance to the Representatives and their counsel, with respect to the
perfection of the Indenture Trustee's interest in the Collateral.
(i) The Representatives 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 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 Representatives shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing Date,
satisfactory in form and substance to the Representatives and their counsel, to
the effect that:
18
(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 (j) 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 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,
19
would materially and adversely affect the ability of the Owner Trustee to
carry out the transactions contemplated by the Trust Agreement.
(k) The Representatives shall have received an opinion of ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & Finger, special Delaware counsel to the Issuer, dated the Closing Date,
satisfactory in form and substance to the Representatives and their 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 (k) 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.
(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
20
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 Representatives shall have received an opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date,
satisfactory in form and substance to the Representatives and their 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.
(iii) The Notes have been duly authenticated and delivered by the
Indenture Trustee.
(iv) Neither the authentication 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.
21
(m) The Representatives shall have received reliance letters addressed
to the Representatives, dated as of the Closing Date, allowing the
Representatives 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
Representatives a letter, dated the date of delivery thereof, in form and
substance satisfactory to the Representatives, 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.
(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 Representatives, 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
Notes as contemplated by the Registration Statement and the Prospectus (and any
supplements thereto).
(p) At the Time of Delivery, (i) the Notes shall be rated by ▇▇▇▇▇'▇
Investors Service, Inc. ("Moody's") at "Aaa" and (ii) the Notes shall be rated
by Standard & Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard &
Poor's") at "AAA."
(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.
22
(r) The Representatives shall have received such further information,
certificates and documents as the Representatives 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
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 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
23
circumstances under which they were made not misleading, in each case to the
extent, but only to the extent, that, with respect to the Underwriters, such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with the Underwriters' Information 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 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,
24
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 Notes. 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 Notes 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 Notes purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or Advanta on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, Advanta and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (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 Notes 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.
25
(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 Notes 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 Representatives
and the Company for the purchase of such Notes 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.
10. Reimbursement of Expenses.
(a) If (x) no closing of the sale of the Notes 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 Notes 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 Notes;
26
(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 and expenses of counsel to the Underwriters and
counsel to the underwriters for the Class A(2005-A5) Notes in an aggregate
amount not to exceed $25,000;
(vii) 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 Notes;
(viii) all expenses in connection with the qualification of the
Notes under state securities laws, including the fees and disbursements of
counsel in connection with the Blue Sky Survey, if applicable;
(ix) the cost of preparing the Notes;
(x) the cost or expenses of any transfer agent or registrar;
(xi) the costs and expenses of listing the Notes on the
Luxembourg Stock Exchange (except the amount to be paid by the Underwriters
in Section 10(c) below); and
(xii) 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 Notes by them, (ii) 21.43% of costs and expenses of
printing the Prospectus and the Prospectus Supplement subject to a maximum
amount of $12,858, (iii) any advertising expenses connected with any offers they
may make, (iv) the costs and expenses of listing the Notes on the Luxembourg
Stock Exchange subject to a maximum amount of $2,500 and (v) 42.86% of the
27
aggregate costs and expenses of counsel to the Underwriters and counsel to the
underwriters for the Class A(2005-A5) Notes in excess of $25,000.
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 Notes.
If this Agreement is terminated pursuant to Section 9 or if for any reason
the purchase of the Notes 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 Notes 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 Notes 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 Representatives for all
out-of-pocket expenses approved in writing by the Representatives, including
fees, expenses and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Notes, 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 Representatives in care of Deutsche Bank
Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇ with a copy to the same address to the attention of the legal
department and Credit Suisse First Boston LLC, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Transaction Advisory Group; 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 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 Representatives 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
28
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 Notes 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. Arm's Length Business Transactions; Underwriters as Independent
Contractors. The Company and Advanta acknowledge and agree that (i) the
transaction contemplated by this Agreement is an arm's-length commercial
transaction between the Company and Advanta, on the one hand, and each of the
Underwriters, on the other, and (ii) none of the Underwriters, in connection
with this Agreement and transactions contemplated hereby, have acted as an
agent, advisor or fiduciary of the Company or Advanta.
17. Time of the Essence. Time shall be of the essence of this Agreement.
18. 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.
19. 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.
29
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.
20. 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: President
ADVANTA BANK CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President & Treasurer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
DEUTSCHE BANK SECURITIES INC.,
as a Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
CREDIT SUISSE FIRST BOSTON LLC,
as a Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
SCHEDULE A
PRINCIPAL AMOUNT
OF CLASS A(2005-A4)
UNDERWRITERS NOTES
------------ -------------------
Deutsche Bank Securities Inc. ..... $ 75,000,000
Credit Suisse First Boston LLC .... $ 75,000,000
------------
Total ............................. $150,000,000
Purchase Price (as a percentage of the principal amount of the Notes): 99.67668%