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EXHIBIT 1.1
ADVANTA BUSINESS CARD MASTER TRUST
Asset-Backed Notes, Series 2001-A
Class A Notes
Class B Notes
Class C Notes
UNDERWRITING AGREEMENT
April 3, 2001
Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. Introductory. Advanta Business Receivables Corp., a Nevada
corporation (the "Company"), proposes, subject to the terms and conditions
stated herein, to cause Advanta Business Card Master Trust, a Delaware common
law trust (the "Issuer"), to issue $240,000,000 aggregate principal amount of
Advanta Business Card Master Trust Class A Asset Backed Notes, Series 2001-A
(the "Class A Notes"), $28,500,000 aggregate principal amount of Advanta
Business Card Master Trust Class B Asset Backed Notes, Series 2001-A (the "Class
B Notes"), $21,000,000 aggregate principal amount of Advanta Business Card
Master Trust Class C Asset Backed Notes, Series 2001-A (the "Class C Notes" and
together with the Class A Notes and the Class B Notes, the "Offered Securities")
and $10,500,000 aggregate principal amount of Advanta Business Card Master Trust
Class D Floating Rate Asset Backed Notes, Series 2001-A (the "Class D Notes" and
together with the Class A Notes, the Class B Notes and the Class C Notes, the
"Notes").
The Issuer is a common law trust formed pursuant to a Trust Agreement,
dated as of August 1, 2000 (the "Trust Agreement") between the Company and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). The Notes will
be issued pursuant to a Master Indenture, dated as of August 1, 2000 (the
"Master Indenture"), between the Issuer and Bankers Trust Company, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Series 2001-A
Indenture Supplement with respect to the Notes dated as of April 1, 2001 (the
"Indenture Supplement" and together with the Master Indenture, the "Indenture").
The assets of the Issuer will include, among other things Receivables
in a portfolio of MasterCard business revolving credit card accounts of Advanta
Bank Corp.
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The Receivables are transferred to the Issuer pursuant to a Transfer
and Servicing Agreement, dated as of August 1, 2000 (the "Transfer and Servicing
Agreement"), between the Company, Advanta Bank Corp. ("Advanta"), as servicer
(in such capacity, the "Servicer"), and the Issuer. The Receivables transferred
to the Issuer by the Company are acquired by the Company from Advanta, pursuant
to a Receivables Purchase Agreement, dated as of August 1, 2000 (the
"Receivables Purchase Agreement"), between the Company and Advanta. Advanta
granted a security interest in the Receivables to the Indenture Trustee for the
benefit of the Noteholders pursuant to a letter agreement dated as of August 1,
2000 (the "Security Agreement"), between Advanta and the Indenture Trustee.
Advanta has agreed to provide notices and perform on behalf of the
Issuer certain other administrative obligations required by the Transfer and
Servicing Agreement, the Master Indenture and each indenture supplement for each
series of notes issued by the Issuer, pursuant to an Administration Agreement,
dated as of August 1, 2000 (the "Administration Agreement"), between Advanta, as
administrator (in such capacity, the "Administrator"), and the Issuer. The
Transfer and Servicing Agreement, the Receivables Purchase Agreement, the
Indenture, the Trust Agreement, the Security Agreement and the Administration
Agreement are referred to herein, collectively, as the "Transaction Documents."
This Underwriting Agreement is referred to herein as this "Agreement."
To the extent not defined herein, capitalized terms used herein have the
meanings assigned in the Transaction Documents.
Advanta and the Company hereby agree with the underwriters for the
Class A Notes listed on Schedule A hereto (the "Class A Underwriters"), the
underwriters for the Class B Notes listed on Schedule A hereto (the "Class B
Underwriters"), and the underwriters for the Class C Notes listed on Schedule A
hereto (the "Class C Underwriters," and together with the Class A Underwriters
and the Class B Underwriters, the "Underwriters") as follows:
2. Representations and Warranties of the Company and Advanta. Each of
the Company and Advanta, jointly and severally, represents and warrants to, and
agrees with, each of the Underwriters that:
(a) The Company and the Offered Securities meet the
requirements for use of Form S-3 under the Securities Act of 1933, as amended
(the "Act"); the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-32874),
including a representative form of prospectus supplement and such amendments
thereto as may have been filed prior to the date hereof, relating to the Offered
Securities and the offering thereof from time to time in accordance with Rule
415 under the Act. Such registration statement, as amended, has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). The
registration statement as amended at the date hereof is hereinafter referred to
as the "Registration Statement." The Company will prepare and file with the
Commission a prospectus supplement (together with any later dated prospectus
supplement relating to the Offered Securities, the "Prospectus Supplement") to
the prospectus included in the Registration Statement (such prospectus, in the
form it appears in the Registration Statement or in the form
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most recently revised and filed with the Commission pursuant to Rule 424(b), is
hereinafter referred to as the "Base Prospectus") specifically relating to the
Offered Securities pursuant to Rule 424 under the Act. The term "Prospectus"
means the Base Prospectus together with the Prospectus Supplement. The term
"Preliminary Prospectus" means any preliminary prospectus supplement
specifically relating to the Offered Securities, together with the Base
Prospectus. As used herein, the terms "Registration Statement," "Prospectus,"
"Base Prospectus" and "Preliminary Prospectus" shall include in each case the
documents, if any, incorporated by reference therein. For purposes of this
Agreement, all references to the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the electronically transmitted copy thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis
and Retrieval system ("▇▇▇▇▇"). All references in this Agreement to financial
statements and schedules and other information that is "contained," "included"
or "stated" in the Registration Statement, any Preliminary Prospectus or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information that
is incorporated by reference in the Registration Statement, any Preliminary
Prospectus or the Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to mean and include the
filing of any document with the Commission pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), that is incorporated by reference
in the Registration Statement, such Preliminary Prospectus or the Prospectus, as
the case may be;
(b) No stop order preventing or suspending the effectiveness
or use of the Registration Statement or the Prospectus has been issued by the
Commission and no proceeding for that purpose has been initiated or, to the
knowledge of the Company or Advanta, threatened by the Commission. The
Registration Statement, as of the date and time as of which the Registration
Statement, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission, conformed, in all material respects to the
requirements of the Act, and the rules and regulations of the Commission
thereunder (the "Rules and Regulations") and the Trust Indenture Act , and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and on the date of this Agreement, the Registration
Statement and the Prospectus conform, and at the time of filing of the
Prospectus pursuant to Rule 424(b) the Registration Statement and the Prospectus
will conform, in all respects with the requirements of the Act and the Rules and
Regulations and the Trust Indenture Act and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or will omit,
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, it being understood and
agreed that (i) the only information provided by the Class A Underwriters for
inclusion in the Registration Statement and the Prospectus is set forth on the
cover page of the Prospectus Supplement in the table under the heading "Class A
Notes" and on the line across from "Price to public," in the table listing the
Class A Underwriters and the Principal Amount of Class A Notes under the heading
"Underwriting" in the Prospectus Supplement, in the third paragraph under the
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heading "Underwriting" in the Prospectus Supplement, and in the final paragraph
under the heading "Underwriting" in the Prospectus Supplement (the "Class A
Underwriters' Information"); (ii) the only information provided by the Class B
Underwriters for inclusion in the Registration Statement and the Prospectus is
set forth on the cover page of the Prospectus Supplement in the table under the
heading "Class B Notes" and on the line across from "Price to public," in the
table listing the Class B Underwriters and the Principal Amount of Class B Notes
and under the heading "Underwriting" in the Prospectus Supplement, in the fourth
paragraph under the heading "Underwriting" in the Prospectus Supplement, and in
the final paragraph under the heading "Underwriting" in the Prospectus
Supplement (the "Class B Underwriters' Information") and (iii) the only
information provided by the Class C Underwriters for inclusion in the
Registration Statement and the Prospectus is set forth on the cover page of the
Prospectus Supplement in the table under the heading "Class C Notes" and on the
line across from "Price to public," in the table listing the Class C
Underwriters and the Principal Amount of Class C Notes and under the heading
"Underwriting" in the Prospectus Supplement, in the fifth paragraph under the
heading "Underwriting" in the Prospectus Supplement, and in the final paragraph
under the heading "Underwriting" in the Prospectus Supplement (the "Class C
Underwriters' Information"). In addition, the statements in "Description of the
Notes," "The Indenture" and "Description of the Receivables Purchase Agreement"
in the Base Prospectus and "Description of Series Provisions " in the Prospectus
Supplement, to the extent they constitute a summary of the Notes or the
Transaction Documents constitute a fair and accurate summary thereof;
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the Rules and
Regulations, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the Rules and Regulations and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(d) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
change, or any development involving a prospective change, in or affecting the
Company or Advanta or any of their respective subsidiaries (other than as
contemplated in the Registration Statement or the Prospectus) which would be
expected to have a material adverse effect on either (1) the ability of such
person to consummate the transactions contemplated by, or to perform its
respective obligations under, this Agreement or any of the Transaction Documents
to which it is a party or (2) the Accounts or related Receivables considered in
the aggregate;
(e) The Company has been duly formed and is validly existing
as a corporation in good standing under the laws of Nevada; Advanta has been
duly incorporated and is validly existing as an industrial loan corporation in
good standing under the laws of Utah; each
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of the Company and Advanta has the power and authority (corporate and/or other)
to own its properties and conduct its business to the extent described in the
Prospectus and to perform its obligations under this Agreement and the
Transaction Documents to which it is a party; and each of the Company and
Advanta has been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction;
(f) As of the Time of Delivery (as defined in Section 3), each
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body that is required to be obtained or made by the
Company, Advanta, the Issuer or their subsidiaries for the consummation of the
transactions contemplated by this Agreement and the Transaction Documents shall
have been obtained or made, except for such consents, approvals, authorizations,
registrations or qualifications as may be required under Blue Sky laws;
(g) Any taxes, fees and other governmental charges that are
assessed and due from the Company, Advanta, or the Issuer in connection with the
issuance of the Notes, the execution, delivery and issuance of this Agreement
and each Transaction Document shall have been paid or will be paid at or prior
to the Time of Delivery to the extent then due;
(h) This Agreement has been duly authorized, executed and
delivered by the Company and Advanta and constitutes a legal, valid and binding
agreement of the Company and Advanta enforceable in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy, insolvency,
liquidation, receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and (ii) general principles
of equity, whether enforcement is sought in a proceeding in equity or at law;
(i) The Offered Securities have been duly and validly
authorized by the Company, the direction by the Issuer to the Indenture Trustee
to authenticate the Offered Securities has been duly authorized by the Company
and, when issued pursuant to the Indenture and delivered pursuant to this
Agreement, the Offered Securities will have been duly executed, authenticated,
issued and delivered and will constitute valid and legally binding obligations
of the Issuer, enforceable in accordance with their terms, and entitled to the
benefits provided by the Indenture under which they are to be issued, which
Indenture will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, assuming the due authorization,
execution and 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
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enforcement of the rights of creditors and (ii) general principles of equity,
whether enforcement is sought in a proceeding in equity or at law; assuming the
due authorization, execution and delivery thereof by the other parties thereto,
each of the other Transaction Documents to which it is a party will constitute a
valid and legally binding obligation of the Company and Advanta, as applicable,
enforceable in accordance with its terms, except as enforceability may be
limited by (i) bankruptcy, insolvency, liquidation, receivership, moratorium,
reorganization or other similar laws affecting the enforcement of the rights of
creditors and (ii) general principles of equity, whether enforcement is sought
in a proceeding in equity or at law; the execution, delivery and performance by
each of the Company and Advanta of the Transaction Documents to which it is a
party and the consummation of the transactions contemplated thereby have been
duly and validly authorized by all necessary action and proceedings required of
it; and the Offered Securities, the Indenture, the Receivables Purchase
Agreement, the Transfer and Servicing Agreement and the other Transaction
Documents will conform in all material respects to the descriptions thereof in
the Prospectus;
(j) The issue and sale of the Offered Securities by the Issuer
as contemplated hereby and the compliance by the Company and Advanta with all of
the provisions of this Agreement, and the compliance by each of the Company and
Advanta with all of the provisions of all of the Transaction Documents to which
it is a party and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company and Advanta is a party or by which the Company or Advanta or
any of their subsidiaries is bound or to which any of the property or assets of
the Company or Advanta is subject, nor will such action result in any violation
of the provisions of the Articles of Incorporation or By-laws of the Company or
Advanta, as applicable, or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or
Advanta or any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or governmental
agency or body is required to be obtained by the Company or Advanta for the
issue and sale of the Offered Securities by the Issuer, the consummation by the
Company or Advanta of the transactions contemplated by this Agreement or the
Transaction Documents, except the registration under the Act of the Offered
Securities and the qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by the
Underwriters;
(k) There are no legal or governmental proceedings to which
the Company or Advanta is a party or of which any property of the Company or
Advanta is the subject (i) asserting the invalidity of this Agreement, the
Offered Securities or any other Transaction Documents, (ii) seeking to prevent
the issuance of the Offered Securities or the consummation of any of the
transactions contemplated by this Agreement or any Transaction Document, (iii)
which is reasonably expected to materially and adversely affect the performance
by the Company or Advanta, of their respective obligations under, or the
validity or enforceability of, this Agreement, the Offered Securities or the
other Transaction Documents, as applicable, (iv) seeking to affect adversely the
federal income tax attributes of the Offered Securities described in the
Prospectus or (v) which is reasonably expected to, individually or in the
aggregate, have a material adverse effect on the Accounts, the Receivables, the
Company, Advanta or the Issuer; and, to the best of the Company's and Advanta's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
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(l) Neither the Company nor Advanta is in violation of its
respective Articles of Incorporation or By-laws, and neither the Company nor
Advanta is in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound;
(m) None of the Company, Advanta and the Issuer is and, after
giving effect to the offering and sale of the Offered Securities and 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 (including Receivables in the Additional
Accounts, the Receivables of which have been or are expected to be conveyed to
the Issuer during the period from March 1, 2001 through April 17, 2001) had an
aggregate outstanding balance determined as of March 1, 2001 in the amount set
forth in the Prospectus Supplement;
(o) No selection procedures materially adverse to the holders
of the Offered Securities were utilized in selecting those Receivables
transferred by Advanta to the Company from those Receivables available therefor;
(p) The Receivables have been acquired and will be acquired by
the Company under the Receivables Purchase Agreement and by the Issuer under the
Transfer and Servicing Agreement, the Company and the Issuer, respectively, will
acquire the Receivables, free and clear of any lien, charge or encumbrance
(other than as contemplated by the Transaction Documents), but subject to the
rights of the related obligors;
(q) As of the date hereof and as of the Time of Delivery,
neither Advanta nor the Company is obligated to repurchase Receivables in the
Initial Designated Accounts or in any Additional Designated Accounts (each as
defined in the Transfer and Servicing Agreement) constituting a material portion
of the aggregate Receivables in the Accounts (as defined in the Transfer and
Servicing Agreement) existing as of the Time of Delivery;
(r) As of the date hereof, the Company is wholly-owned by
Advanta and the Issuer is wholly-owned by the Company;
(s) In accordance with Generally Accepted Accounting
Principles, as currently in effect, each party to the Receivables Purchase
Agreement and the Transfer and Servicing Agreement will treat the transactions
contemplated by the Receivables Purchase 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, 2000, 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
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press releases of general distribution, copies of which have been delivered to
you, there has been no material adverse change in the condition (financial or
otherwise) of Advanta Corp., the Company or Advanta since December 31, 2000;
(u) Each of the Company and Advanta hereby makes and repeats
each of the respective representations and warranties expressly made by it in
the Transaction Documents. Such representations and warranties are incorporated
by reference in this Section 2 and the Underwriters may rely thereon as if such
representations and warranties were fully set forth herein;
(v) Any taxes, fees and other governmental charges arising
from the execution and delivery by Advanta, the Company or the Issuer of this
Agreement, the Receivables Purchase Agreement, the Transfer and Servicing
Agreement and the Indenture and in connection with the execution, delivery and
issuance of the Offered Securities and with the transfer of the Receivables have
been paid or will be paid by the Company prior to April 17, 2001 (the "Closing
Date");
(w) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is an independent public accountant
with respect to Advanta and the Company within the meaning of the Act and the
rules and regulations promulgated thereunder; and
(x) The Indenture has been duly qualified under the TIA and
complies as to form with the TIA and the rules and regulations of the Commission
thereunder.
All representations, warranties and agreements made herein shall be
deemed made as of the date hereof and as of the Time of Delivery; provided,
however, that to the extent any representation or warranty relates to a specific
date, such representation and warranty shall be deemed to relate only to such
date.
3. Sale and Delivery to the Underwriters; Closing. Subject to the terms
and conditions herein set forth, the Company agrees to cause the Issuer to issue
the Offered Securities and agrees to sell the Offered Securities to each of the
Underwriters, severally and not jointly, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, the principal amount of
Offered Securities set forth opposite the name of such Underwriter, and at the
purchase price set forth, in Schedule A hereto.
Each class of the Offered Securities shall be represented by one or
more definitive global certificates registered in the name of Cede & Co., as
nominee for The Depository Trust Company ("DTC"). The Company will cause the
Issuer to transfer the Offered Securities in book-entry form to Barclays Capital
Inc. (the "Representative"), for the account of each Underwriter, against
payment by the Representative (by or on behalf of each such Underwriter or
otherwise) of the purchase price therefor by wire transfer payable to the order
of the Company in federal (same day) funds (to such account or accounts as the
Company shall designate), by causing DTC to credit the Offered Securities to the
account of the Representative at DTC. The time and date of such delivery and
payment shall be 10:00 a.m., New York City time, on April
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17, 2001 or such other time and date as the Representative and the Company may
agree upon in writing. Such time and date are herein called the "Time of
Delivery."
The documents to be delivered at Time of Delivery by or on behalf of
the parties hereto pursuant to Section 7 hereof and the Offered Securities will
be delivered at the offices of Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), all at the Time of
Delivery. A meeting will be held at the Closing Location at 10:00 a.m., New York
time, on the New York Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 3, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are authorized or obligated by law or executive order
to close. The Company will cause the global certificates referred to above to be
made available to the Representative for checking at least 24 hours prior to the
Time of Delivery at the Closing Location.
4. Offering by Underwriters.
(a) It is understood that upon the authorization by the
Representative of the release of the Offered Securities, the Underwriters
propose and agree to offer the Offered Securities for sale upon the terms and
conditions set forth in the Prospectus.
(b) Each of the Underwriters agrees that if it is a foreign
broker or dealer not eligible for membership in the National Association of
Securities Dealers, Inc. (the "NASD"), it will not effect any transaction in the
Offered Securities within the United States or induce or attempt to induce the
purchase of or sale of the Offered Securities within the United States, except
that such Underwriter shall be permitted to make sales to the other Underwriters
or to their United States affiliates; provided that such sales are made in
compliance with an exemption of certain foreign brokers or dealers under Rule
15a-6 under the Exchange Act, and in conformity with the Rules of Fair Practice
of the NASD as such rules apply to non-NASD brokers or dealers.
(c) Each Underwriter further represents that:
(i) it has not offered or sold and, prior to the
expiry of six months from the Closing Date, will not offer or sell, any
Offered Securities to persons in the United Kingdom, except to persons
whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for purposes of
their business, or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all
applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect
to anything done by it in relation to the Offered Securities in, from
or otherwise involving the United Kingdom;
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(iii) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person of a
kind described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1996 or persons to whom
such document may otherwise lawfully be issued, distributed or passed
on; and
(iv) it is a person of a kind described in Article
II(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996.
(d) Each of the Underwriters agrees with and represents and
warrants to the Company and Advanta that with respect to each potential investor
to which it sends an electronic copy of any Preliminary Prospectus or the
Prospectus it will also promptly send a printed copy of the Preliminary
Prospectus or the Prospectus, as the case may be. The Representative agrees with
the Company and Advanta that it shall provide notice to the Company and Advanta
of any electronic dissemination by the Underwriters to potential investors of
any Preliminary Prospectus or the Prospectus before such dissemination.
5. Certain Agreements of the Company and Advanta. The Company and
Advanta, jointly and severally, agree with each of the Underwriters that:
(a) The Company will prepare the Prospectus in a form approved
by the Representative (which approval will not be unreasonably withheld) and
will file such Prospectus pursuant to Rule 424(b) under the Act not later than
the date required by Rule 424; make no further amendment or any supplement to
the Registration Statement (including any post-effective amendment and any
filing under Rule 462(b) under the Act) or Prospectus which shall be reasonably
disapproved by the Representative promptly after reasonable notice thereof; will
advise the Representative, promptly after it receives notice thereof, of the
time when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representative with copies thereof, will file promptly
all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Offered Securities; to advise the Representative, promptly after
it receives notice thereof, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of the Offered Securities for offering or sale
in any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of the Prospectus or suspending any such
qualification, will promptly use its best efforts to obtain the withdrawal of
such order.
(b) The Company will promptly from time to time take such
action as the Representative may reasonably request to qualify the Offered
Securities for offering and sale under the securities laws of such states as the
Representative may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such states for as long
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as may be necessary to complete the distribution of the Offered Securities,
provided that in connection therewith neither the Company nor the Issuer shall
be required to qualify as a foreign corporation or entity or to file a general
consent to service of process in any state.
(c) If at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus to comply with the Act, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance and will furnish
the Representative with copies thereof. Neither the Underwriters' consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
(d) As soon as practicable, the Company will make generally
available to Noteholders and to the Underwriters an earnings statement or
statements of the Company which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act. The Company will comply with the periodic
reporting requirements under the Exchange Act.
(e) During the period beginning on the date hereof and
continuing to and including the later of the Time of Delivery or the termination
of the syndicate, which shall in no event exceed 30 days from the Time of
Delivery, neither the Company nor Advanta will offer, sell, contract to sell or
otherwise dispose of any securities secured by or evidencing interests in
receivables similar to the Receivables.
(f) So long as any Offered Securities shall be outstanding,
Advanta will deliver or cause to be delivered to the Representative the annual
statement as to compliance to be delivered by Advanta to the Owner Trustee, the
Indenture Trustee and each Rating Agency pursuant to Section 3.05 of the
Transfer and Servicing Agreement and the independent certified public
accountant's agreed-upon procedures report furnished to the Owner Trustee, the
Indenture Trustee, the Servicer and each Rating Agency pursuant to Section 3.06
of the Transfer and Servicing Agreement in each case as soon as such statement
is furnished to the Owner Trustee, the Indenture Trustee or the Rating Agencies,
as the case may be.
(g) The Company and Advanta will cooperate with the
Underwriters and use their best efforts to permit the Offered Securities to be
eligible for clearance and settlement through DTC.
(h) The Company will furnish such information, execute such
instruments and take such actions, if any, as the Representative may reasonably
request in connection with any filing with the NASD relating to the Offered
Securities should the Representative determine that such filing is required or
appropriate.
(i) So long as any of the Offered Securities are outstanding,
the Company will furnish to the Representative as soon as practicable (i) all
documents required to be
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distributed to the holders of the Offered Securities or filed with the
Commission pursuant to the Exchange Act or any order of the Commission
thereunder, (ii) all monthly reports required to be delivered to or filed with
the Indenture Trustee, (iii) all notices or requests to or from the Rating
Agencies with respect to the Offered Securities that have been delivered to or
received by the Company, (iv) any order of the Commission under the Act or the
Exchange Act applicable to the Issuer or to the Company, or pursuant to a
"no-action" letter obtained from the staff of the Commission by the Company and
affecting the Issuer or the Company and (v) from time to time, any other
publicly available information concerning the Company filed with any government
or regulatory authority, as the Representative may reasonably request.
(j) At the Time of Delivery, the electronic ledger used by
Advanta as a master record of the Receivables conveyed by Advanta to the Company
and, in turn, conveyed by the Company to the Issuer, shall be marked in such a
manner as shall clearly indicate the Issuer's absolute ownership of such
Receivables, and from and after the Time of Delivery, neither the Company nor
Advanta nor any of their affiliates shall take any action inconsistent with the
Issuer's ownership of such Receivables, other than as permitted by the
Transaction Documents.
(k) To the extent, if any, that the rating provided with
respect to the Offered Securities by any of the Rating Agencies that initially
rate the Offered Securities is conditional upon the furnishing of documents or
the taking of any other reasonable actions by the Company or Advanta, the
Company and Advanta will use their best efforts to furnish, as soon as
practicable, such documents and take (or cause the taking of) any such other
actions.
(l) Each of the Company and Advanta will use the net proceeds
received by it from the issuance of the Offered Securities in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(m) The Company will file with the Commission within fifteen
days of the issuance of the Offered Securities a current report on Form 8-K
setting forth specific information concerning the Offered Securities and the
Receivables to the extent that such information is not set forth in the
Prospectus.
6. Computational Materials and ABS Term Sheets.
(a) Each Underwriter, severally, represents and warrants to
the Company and Advanta that it has not and will not use any information that
constitutes "Computational Materials," as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Acceptance Corporation
I, ▇▇▇▇▇▇, Peabody & Co. Incorporated and ▇▇▇▇▇▇ Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994), with respect to the offering of the Offered Securities.
(b) Each Underwriter, severally, represents and warrants to
the Company and Advanta that it has not and will not use any information that
constitutes "ABS Term Sheets," as defined in the Commission's No-Action Letter,
dated February 17, 1995, addressed to the Public Securities Association, with
respect to the offering of the Offered Securities.
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7. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters hereunder shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and Advanta herein are, at and as of the Time of Delivery, true and
correct (except to the extent that any representation or warranty relates to a
specific date, in which case such representation or warranty shall be deemed to
relate only to such date), the condition that the Company and Advanta shall have
performed all of their respective obligations hereunder theretofore to be
performed, and the following additional conditions precedent:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Representative's satisfaction.
(b) The Representative shall have received an opinion, dated
the Closing Date, of Van Cott, ▇▇▇▇▇▇, Cornwall & ▇▇▇▇▇▇▇▇, as special Utah
counsel for Advanta, satisfactory in form and substance to the Representative
and its counsel to the effect that:
(i) Advanta (x) has been duly incorporated and is
validly existing as an industrial loan corporation under the laws of
the State of Utah, with power and authority to own its properties and
conduct its business as described in the Prospectus and (y) has the
power, authority and legal right to acquire and own the Designated
Accounts and the Receivables, to sell and assign the Receivables to the
Company pursuant to the Receivables Purchase Agreement, to service the
Designated Accounts and Receivables pursuant to the Transfer and
Servicing Agreement and to enter into and perform its obligations under
this Agreement and each Transaction Document to which it is a party.
(ii) Advanta has, or at the time of execution
thereof, had, the power and authority to execute and deliver each of
the Transaction Documents to which it is a party, and Advanta had and
at all times since the time of execution thereof has had and does now
have the power to consummate the transactions contemplated herein and
in the Transaction Documents to which it is a party.
(iii) Advanta has duly authorized, executed and
delivered each Transaction Document to which it is a party.
(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
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transactions contemplated by this Agreement and the Transaction
Documents, except for (x) filing of UCC financing statements with
respect to the transactions contemplated in the Receivables Purchase
Agreement and the Transfer and Servicing Agreement and (y) such
consents, approvals, authorizations, orders or filings as may be
required under the state securities or blue sky laws of any
jurisdiction.
(vi) The execution, delivery and performance by
Advanta of this Agreement, the transfer of the Receivables from Advanta
to the Company and, in turn, from the Company to the Issuer, the
issuance and sale of the Notes and the consummation of any other of the
transactions contemplated herein or in the Transaction Documents will
not conflict with, result in a breach of or a violation of any of the
terms of, or constitute a default under (x) the Articles of
Incorporation and Bylaws of Advanta, (y) any rule, order, statute or
regulation known to such counsel to be currently applicable to Advanta
or (z) any agreement or other instrument, known to such counsel, to
which Advanta is a party or by which it is bound.
(vii) To such counsel's knowledge, there are no
actions, proceedings or investigations pending before any court,
administrative agency or other tribunal (v) asserting the invalidity of
this Agreement, any of the Transaction Documents or the Notes, (w)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by this Agreement or the Transaction
Documents, (x) which might materially and adversely affect the
performance by Advanta of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction Documents
to which it is a party or (y) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Base Prospectus
under the heading "Federal Income Tax Consequences."
(c) The Representative shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇▇ and Wedge, as special Nevada counsel for the
Company, satisfactory in form and substance to the Representative and its
counsel to the effect that:
(i) The Company (x) has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Nevada, with power and authority to own its properties and conduct its
business as described in the Prospectus and (y) has the power,
authority and legal right to acquire and own the Receivables, to sell
and assign the Receivables to the Issuer pursuant to the Transfer and
Servicing Agreement and to enter into and perform its obligations under
this Agreement and each Transaction Document to which it is a party.
(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.
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(iii) The Company has duly authorized, executed and
delivered each Transaction Document to which it is a party.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company.
(v) No consent, approval, authorization or order of,
or filing of any UCC financing statements with, any court or
governmental agency or body of the State of Nevada having jurisdiction
over the Company is required for the consummation of the transactions
contemplated by this Agreement and the Transaction Documents, except
for (x) filing of UCC financing statements with respect to the
transactions contemplated in the Receivables Purchase Agreement and the
Transfer and Servicing Agreement and (y) such consents, approvals,
authorizations, orders or filings as may be required under the state
securities or blue sky laws of any jurisdiction.
(vi) The execution, delivery and performance by the
Company of this Agreement, the transfer of the Receivables from the
Company to the Issuer, the issuance and sale of the Notes and the
consummation of any other of the transactions contemplated herein or in
the Transaction Documents will not conflict with, result in a breach of
or a violation of any of the terms of, or constitute a default under
(x) the Articles of Incorporation and Bylaws of the Company or (y) any
rule, order, statute or regulation known to such counsel to be
currently applicable to the Company.
(vii) To such counsel's knowledge, there are no
actions, proceedings or investigations pending before any court,
administrative agency or other tribunal (v) asserting the invalidity of
this Agreement, any of the Transaction Documents or the Notes, (w)
seeking to prevent the issuance of the Notes or the consummation of any
of the transactions contemplated by this Agreement or the Transaction
Documents, (x) which might materially and adversely affect the
performance by the Company of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction Documents
to which it is a party or (y) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Base Prospectus
under the heading "Federal Income Tax Consequences."
(d) The Representative shall have received an opinion dated
the Closing Date, of Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP, special counsel to
the Company and Advanta, satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) Each of the Transaction Documents to which the
Company or Advanta is a party constitutes the legal, valid and binding
obligation of each of them, as 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.
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(iii) The Notes, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid
for by the Underwriters in accordance with this Agreement, will be duly
and validly issued and outstanding, will constitute legal, valid and
binding obligations of the Issuer, enforceable against the Issuer in
accordance with their terms and will be entitled to the benefits of the
Indenture.
(iv) The statements in the Base Prospectus under the
headings "Prospectus Summary -- Tax Status, " and " -- ERISA
Considerations," "Risk Factors -- If a receiver or conservator were
appointed for a seller or a transferor that is a bank, or if a seller
or a transferor that is not a bank became a debtor in a bankruptcy
case, delays or reductions in payment of your notes could occur,"
"Material Legal Aspects of the Receivables," "ERISA Considerations" and
"Federal Income Tax Consequences" and the statements in the Prospectus
Supplement under the headings "Summary of Terms -- Tax Status" and " --
ERISA Considerations" and "ERISA Considerations," to the extent they
constitute matters of law or legal conclusions with respect thereto,
have been reviewed by us and are correct in all material respects.
(v) This Agreement, the Transaction Documents and the
Notes conform in all material respects to the descriptions thereof
contained in the Prospectus.
(vi) The Indenture has been duly qualified under the
TIA and complies as to form with the TIA and the rules and regulations
of the Commission thereunder. The Issuer is not now, and immediately
following the sale of the Notes pursuant to this Agreement will not be,
required to be registered under the Investment Company Act of 1940, as
amended.
(vii) Subject to the discussion in the Prospectus
under the heading "Federal Income Tax Consequences," (a) the Notes will
properly be characterized as indebtedness, (b) the Issuer will not be
classified as an association (or publicly traded partnership) taxable
as a corporation, for U.S. federal income tax purposes, (c) the
issuance of the Notes will not adversely affect the tax
characterization as debt of any notes of any outstanding series or
class that were characterized as debt for federal income tax purposes
at the time of their issuance and (d) the issuance of the Notes will
not cause or constitute an event in which gain or loss would be
recognized by any noteholder.
(viii) The Indenture, the Administration Agreement
and the Transfer and Servicing Agreement constitute the legal, valid
and binding obligation of the Issuer under the laws of the State of New
York.
(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.
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(x) Such counsel shall state that they have
participated in conferences with representatives of the Company and
Advanta and their accountants, the Underwriters and counsel to the
Underwriters concerning the Registration Statement and the Prospectus
and have considered the matters to be stated therein and the matters
stated therein, although they are not independently verifying the
accuracy, completeness or fairness of such statements (except as stated
in paragraph (iv) above) and based upon and subject to the foregoing,
nothing has come to such counsel's attention to cause such counsel to
believe that the Registration Statement (excluding any exhibits filed
therewith), at the time it became effective, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date hereof,
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
has not been requested to, and does not, make any comment in such
opinion with respect to the financial statements, supporting schedules
and other financial or statistical information contained in the
Registration Statement or the Prospectus).
(xi) If the FDIC is appointed as conservator or
receiver for Advanta, the court would hold that the security interest
granted by Advanta to the Indenture Trustee pursuant to the Security
Agreement would be enforceable against Advanta with respect to the
Receivables and such proceeds.
(xii) No authorization, consent, order or approval
of, or registration or declaration with, any Governmental Authority is
required under the federal law of the United States or the laws of the
State of New York, in connection with the execution, delivery and
performance of any of the Documents or the consummation of any
transaction contemplated thereby by Advanta, the Company or the Issuer.
(xiii) To our actual knowledge, there are no actions,
proceedings or investigations pending or threatened against Advanta,
the Company or the Issuer before any Governmental Authority (a)
asserting the invalidity of any of the Documents or of the Notes, (b)
which would have a material adverse effect on the Noteholders or upon
the ability of Advanta, the Company or the Issuer to perform its
obligations under this Agreement, the Transaction Documents or the
Notes, (c) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by the Documents,
(d) seeking to adversely affect the income tax attributes of the Notes
under the income tax laws of the United States as described in the
Prospectus under the heading "Federal Income Tax Consequences."
(xiv) None of the execution, delivery or performance
by Advanta, the Company or the Issuer of the Documents to which it is a
party (a) conflicts with or violates any law, rule or regulation of the
United States or the State of New York or, to our actual knowledge, any
other Requirement of Law applicable to Advanta, the Company or the
Issuer or (b) conflicts with or results in any breach of the material
terms or provisions of, or constitutes a material default under any
indenture, contract,
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agreement, mortgage, deed of trust or other instrument, to which any of
Advanta, the Company or the Issuer is a party or by which it or its
properties are bound and as to which we have actual knowledge.
(xv) The Registration Statement is effective under
the Act, and to such counsel's actual knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act, and no proceedings for that purpose have been
initiated or threatened by the Commission.
(e) The Representative shall have received from ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel for the Underwriters, such opinion
or opinions, dated the Closing Date, with respect to such matters relating to
this transaction as the Representative and its counsel may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Representative shall have received an opinion, dated
the Closing Date, of Van Cott, ▇▇▇▇▇▇, Cornwall & ▇▇▇▇▇▇▇▇, special Utah counsel
for Advanta, satisfactory in form and substance to the Representative and its
counsel with respect to (i) certain matters relating to the transfer of the
Receivables from Advanta to the Company and (ii) the perfection of the security
interest in favor of the Company in the Receivables and the proceeds thereof.
(g) The Representative shall have received an opinion, dated
the Closing Date, of ▇▇▇▇▇▇▇▇ and Wedge, special Nevada counsel for the Company,
satisfactory in form and substance to the Representative and its counsel, with
respect to (i) certain matters relating to the transfer of the Receivables from
the Company to the Issuer, and (ii) the perfection of the security interest in
favor of the Issuer in the Receivables and the proceeds thereof.
(h) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Issuer dated the Closing Date with
respect to the perfection of the Indenture Trustee's interest in the Collateral.
(i) The Representative shall have received a certificate from
each of the Company and Advanta, dated the Closing Date, of any Vice President
or more senior officer of the Company or Advanta, as the case may be, in which
such officer, to the best of his knowledge after reasonable investigation, shall
state that (v) the Company or Advanta, as the case may be, has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, (w) the representations and
warranties of the Company or Advanta, as the case may be, contained in this
Agreement and the Transaction Documents to which it is a party are true and
correct as of the dates specified herein and therein 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
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no material adverse change in the financial position or results of operation of
the Company's business or the business card unit of Advanta, as the case may be,
except as set forth in or contemplated by the Prospectus.
(j) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel to the Owner Trustee, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) The Owner Trustee is duly incorporated and
validly existing as a banking corporation in good standing under the
laws of the State of Delaware.
(ii) The Owner Trustee has the power and authority to
execute, deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby.
(iii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee and constitutes a legal,
valid and binding obligation of the Owner Trustee, enforceable against
the Owner Trustee in accordance with its terms.
(iv) Each of the Indenture, the Trust Agreement and
the Transfer and Servicing Agreement (collectively referred to in this
subsection (i) as the "Trust Documents") has been duly executed and
delivered by the Owner Trustee, as Owner Trustee on behalf of the
Issuer.
(v) Neither the execution, delivery or performance by
the Owner Trustee, in its individual capacity or as Owner Trustee, as
the case may be, of the Trust Documents, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any governmental
authority or agency of the State of Delaware or the United States of
America governing the banking or trust powers of the Owner Trustee.
(vi) Neither the execution, delivery and performance
by the Owner Trustee, in its individual capacity or as Owner Trustee,
as the case may be, of the Trust Documents, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, contemplated thereby, is in
violation of the charter or bylaws of the Owner Trustee or of any law,
governmental rule or regulation of the State of Delaware or of the
United States of America governing the 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.
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(vii) No consent, approval or other authorization of,
or registration, declaration or filing with, any court or governmental
agency or commission of the State of Delaware is required by or with
respect to the Owner Trustee, in its individual capacity or as Owner
Trustee, as the case may be, for the valid execution and delivery of
the Trust Documents, or for the validity or enforceability thereof.
(viii) To such counsel's knowledge, without
independent investigation, there are no pending or threatened actions,
suits or proceedings affecting the Owner Trustee before any court or
other governmental authority which, if adversely determined, would
materially and adversely affect the ability of the Owner Trustee to
carry out the transactions contemplated by the Trust Agreement.
(k) The Representative shall have received an opinion of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Issuer, dated the
Closing Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Issuer is validly existing as a common law
trust under the laws of the State of Delaware.
(ii) The Trust Agreement constitutes a legal, valid
and binding obligation of the Owner Trustee, enforceable against the
Owner Trustee and the Transferor, in accordance with its terms.
(iii) Under the Trust Agreement, the execution and
delivery of the Transfer and Servicing Agreement and the Indenture, the
issuance of the Notes and the Transferor Beneficial Interest and the
granting of the Trust Estate to the Indenture Trustee as security for
the Notes have been duly authorized by all necessary trust action on
the part of the Issuer.
(iv) The Issuer has the power and authority, pursuant
to the Trust Agreement, to execute, deliver and perform its obligations
under the Trust Agreement, the Indenture and the Transfer and Servicing
Agreement (collectively referred to in this subsection (j) as the
"Trust Documents") and the Notes and has duly executed and delivered
such agreements and obligations;
(v) When issued in accordance with the Trust
Agreement, the Transferor Beneficial Interest will be validly issued
and entitled to the benefits of the Trust Agreement.
(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,
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other than the filing of any financing statements with the Delaware
Secretary of State in connection with the Trust Documents.
(vii) Neither the execution, delivery and performance
by the Issuer of the Trust Documents, nor the consummation by the
Issuer of the transactions contemplated thereby, is in violation of the
Trust Agreement or of any law, rule or regulation of the State of
Delaware applicable to the Issuer.
(viii) With respect to the Issuer and the
Receivables: (a) there is no document, stamp, excise or other similar
tax imposed by the State of Delaware upon the perfection of a security
interest in the Receivables, in the transfer of the Receivables to or
from the Issuer, or upon the issuance of the Notes; (b) there is no
personal property tax imposed by the State of Delaware upon or measured
by the corpus of the Issuer; (c) the characterization of the Issuer for
federal income tax purposes will be determinative of the
characterization of the Issuer for Delaware income tax purposes and
assuming that the Issuer will be taxed as a partnership for federal
income tax purposes, the Issuer will not be subject to Delaware income
tax and Noteholders who are not otherwise subject to Delaware income
tax will not be subject to tax by reason of their ownership of the
Notes and the receipt of income therefrom; and (d) any income tax
imposed by the State of Delaware that might be applicable to the Issuer
would be based upon "federal taxable income," and for the purposes of
determining such income, the characterization of such income for
federal income tax purposes will be determinative, whether the
characterization of the transaction is that of a sale or a loan.
(l) The Representative shall have received an opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, dated the Closing Date,
satisfactory in form and substance to the Representative and its counsel, to the
effect that:
(i) The Indenture Trustee is validly existing as a
banking corporation under the laws of the State of New York and has the
power and authority to execute, deliver and perform its obligations
under the Indenture.
(ii) The acknowledgment by the Indenture Trustee of
the Transfer and Servicing Agreement has been duly authorized, executed
and delivered by the Indenture Trustee. The Indenture Trustee has duly
authorized, executed and delivered the Indenture. Assuming the due
authorization, execution and delivery thereof by the other parties
thereto, the Indenture is the legal, valid and binding agreement of the
Indenture Trustee, enforceable against the Indenture Trustee in
accordance with its terms.
(iii) The Notes have been duly authenticated and
delivered by the Indenture Trustee.
(iv) Neither the execution and delivery of the Notes,
the acknowledgment of the Transfer and Servicing Agreement, nor the
execution, delivery and the performance of the Indenture by the
Indenture Trustee conflicts with or will result in a violation of (A)
any law or regulation of the United States of America or the State of
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22
New York governing the banking or trust powers of the Indenture Trustee
or (B) the Articles of Incorporation or Bylaws of the Indenture
Trustee.
(v) No approval, authorization or other action by, or
filing with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the banking or trust
powers of the Indenture Trustee is required in connection with the
execution and delivery by the Indenture Trustee of the Indenture or the
performance by the Indenture Trustee of the terms of the Indenture or
the acknowledgment of the Transfer and Servicing Agreement.
(m) The Representative shall have received reliance letters
addressed to the Representative, dated as of the Closing Date, allowing the
Representative to rely on each opinion of counsel delivered to a Rating Agency,
the Indenture Trustee, the Company or Advanta in connection with the issuance of
the Notes.
(n) At the Time of Delivery, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall have
furnished to the Representative a letter, dated the date of delivery thereof, in
form and substance satisfactory to the Representative, containing a statement to
the effect that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is an independent public accountant with
respect to the Company and Advanta, as defined in the Act and the rules and
regulations of the Commission thereunder and to the effect that they have
performed certain specified procedures requested by the Underwriters with
respect to the information set forth in the Prospectus and the Registration
Statement.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in or
affecting the Company or Advanta (other than as contemplated in the Registration
Statement) which, in the reasonable judgment of the Representative, would be
expected to have an adverse effect on either (a) the ability of such person to
consummate the transactions contemplated by, or to perform its respective
obligations under, this Agreement or any of the Transaction Documents to which
it is a party or (b) the Receivables that, in either case, would make it
impractical or inadvisable to proceed with the offering or the delivery of the
Offered Securities as contemplated by the Registration Statement and the
Prospectus (and any supplements thereto).
(p) At the Time of Delivery, (i) the Class A Notes, the Class
B Notes and the Class C Notes shall be rated by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") at least "Aaa", "A2", and "Baa2", respectively, and (ii) the Class A
Notes, the Class B Notes and the Class C Notes shall be rated by Standard &
Poor's, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") at
least "AAA," "A" and "BBB," respectively.
(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
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23
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; or (iv) there shall have occurred such a material
adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets of the United States
shall be such) as to make it, in the judgment of the Underwriters, impractical
or inadvisable to proceed with the public offering or delivery of the Notes on
the terms and in the manner contemplated in the Prospectus.
(r) The Representative shall have received such further
information, certificates and documents as the Representative may reasonably
have requested not fewer than three (3) full business days prior to the Closing
Date.
If any of the conditions specified in this Section 7 shall not have
been fulfilled in all respects when and as provided in this Agreement, if the
Company or Advanta is in breach of any covenants or agreements contained herein
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and counsel to the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled on,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Company and Advanta in writing, or by
telephone or telegraph confirmed in writing.
8. Indemnification and Contribution.
(a) The Company and Advanta, jointly and severally, will
indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, from and against (i) any and all losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
any such controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (x) an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or (y) the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, and will promptly reimburse each Underwriter, their respective
directors and officers and each person who controls the Underwriter within the
meaning of Section 15 of the Act, for any legal or other expenses reasonably
incurred by any Underwriter and such other indemnified persons in connection
with investigating, preparing or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company and Advanta shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement or the Prospectus in reliance upon and in conformity
with the Class A Underwriters' Information, the Class B Underwriters'
Information or the Class C Underwriters' Information.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company and Advanta, their respective directors and
officers and each person, if
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any who controls the Company or Advanta, as the case may be, within the meaning
of Section 15 of the Act, against (i) any losses, claims, damages or
liabilities, joint or several, to which the Company, Advanta or such indemnified
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (x) an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or (y) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, in each case to the
extent, but only to the extent, that, with respect to each of the Class A
Underwriters, the Class B Underwriters and the Class C Underwriters, such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the Class A Underwriters' Information,
the Class B Underwriters' Information or the Class C Underwriters' Information,
respectively, and will reimburse any legal or other expenses reasonably incurred
by the Company and Advanta in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred; and
will reimburse the Company and Advanta, their respective directors and officers
and each person who controls the Company or Advanta within the meaning of
Section 15 of the Act, for any legal or other expenses reasonably incurred by
the Company, Advanta and such other indemnified persons in connection with
investigating, preparing or defending any such loss, claim, damage, liability or
action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or commencement thereof; provided, however, that the
failure to notify an indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it has been
materially prejudiced by such failure; and provided further, however, that the
failure to notify any indemnifying party shall not relieve it from any liability
which it may have to any indemnified party otherwise than under this Section 8.
In case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who may be counsel to the indemnifying party); provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised in writing (with a copy to 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
24
25
party. The indemnifying party will not be liable for any settlement entered into
without its consent and will not be liable to such indemnified party under this
Section 8 for any legal or other expenses incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence, (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and provided that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and does not include a statement as to, or an admission of,
fault, culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company and Advanta on the one
hand and the Underwriters on the other from the offering of the Offered
Securities. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and Advanta on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and Advanta on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
purchased under this Agreement (before deducting expenses) received by the
Company and Advanta bear to the total underwriting discounts and commissions
received by the Underwriters with respect to the Offered Securities purchased
under this Agreement, in each case as set forth 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
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26
above in this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing or defending any
such action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be obligated to contribute any amount in excess of the
underwriting discount applicable to the Offered Securities purchased by such
Underwriter under this Agreement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and Advanta under this
Section 8 shall be in addition to any liability which the Company and Advanta
may otherwise have and shall extend, upon the same term and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company or Advanta who has signed the Registration Statement and to each person,
if any, who controls the Company or Advanta within the meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder at the Time of
Delivery, the remaining Underwriters (the "Non-Defaulting Underwriters") shall
have the right, but not the obligation, to make arrangements satisfactory to the
Representative and the Company for the purchase of such Offered Securities by
other persons within 36 hours after such default; if, however, the
Non-Defaulting Underwriters shall not have completed such arrangements within
such 36 hour period, then this Agreement shall terminate without liability on
the part of any Non-Defaulting Underwriter, Advanta or the Company, except as
provided in Sections 10 and 11 herein. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
In the event of any such default which does not result in a termination
of this Agreement, any of the Non-Defaulting Underwriters or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required change in the Registration Statement or
Prospectus or in any other documents or arrangements.
10. Reimbursement of Expenses.
(a) If (x) no closing of the sale of the Offered Securities
occurs by the Closing Date through no fault of the Company or Advanta or because
the conditions set forth in Section 7 have not been met, or (y) the Underwriters
terminate the engagement pursuant to Section 13 or because any conditions
precedent in Section 7 have not been fulfilled, then the Company's or Advanta's
liability to the Underwriters shall be limited to the reimbursement of the
Underwriters' expenses incurred through the date of termination for their
reasonable
26
27
out-of-pocket and incidental expenses excluding the fees and expenses of
Underwriters' counsel (except that the fees and expenses of Underwriters'
counsel shall be included in such reimbursement if the failure to close was
caused by action of or failure to act by the Company or Advanta).
(b) In addition, whether or not the Offered Securities are
issued or sold, the Company or Advanta shall pay the reasonable fees and
expenses associated with the transactions contemplated hereby not paid by the
Underwriters in accordance with the provisions of Section 10(c) including,
without limitation, the following fees and expenses:
(i) rating agency fees payable with respect to their
ratings of the Offered Securities;
(ii) any fees charged by the firm of independent
public accountants referred to in Section 7(n);
(iii) filing fees in connection with the transactions
contemplated hereby including, but not limited to, the Commission;
(iv) the Owner Trustee's and Indenture Trustee's fees
and expenses and reasonable fees and expenses of counsel to the Owner
Trustee and Indenture Trustee;
(v) the costs and expenses of printing the Prospectus
(except the amount to be paid by the Underwriters in Section 10(c)
below);
(vi) the costs of printing or reproducing this
Agreement, the Blue Sky Survey, if applicable, and any other documents
in connection with the offer, sale and delivery of the Offered
Securities;
(vii) all expenses in connection with the
qualification of the Offered Securities under state securities laws,
including the fees and disbursements of counsel in connection with the
Blue Sky Survey, if applicable;
(viii) the cost of preparing the Offered Securities;
(ix) the cost or expenses of any transfer agent or
registrar; and
(x) all other costs and expenses incident to the
performance of their obligations hereunder which are not otherwise
specifically provided for in this Section 10; provided, that neither
the Company nor Advanta waives any rights to reimbursement from the
Underwriters in the event of any Underwriter's failure to perform in
accordance with this Agreement.
(c) It is understood and agreed that, except as provided in
Sections 8, 10(a) and 11, the Underwriters will pay (i) securities transfer
taxes on resale of any of the Offered Securities by them, (ii) costs and
expenses of printing the Prospectus and the Prospectus
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Supplement in an amount not to exceed $53,000, (iii) any advertising expenses
connected with any offers they may make and (iv) fees and expenses of counsel to
the Underwriters.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, Advanta and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company or Advanta, or any
officer or director or controlling person of the Company or Advanta, and shall
survive delivery of and payment for the Offered Securities.
If this Agreement is terminated pursuant to Section 9 or if for any
reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 10, and the respective obligations of the
Company and the Underwriters pursuant to Section 8 shall remain in effect, and
if any Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 9, the Company will reimburse the Underwriters
through the Representative for all out-of-pocket expenses approved in writing by
the Representative, including fees, expenses and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Offered Securities, but neither Advanta nor the Company
shall then be under any further liability to any Underwriter except as provided
in Sections 8 and 10 hereof.
12. Notices. All statements, requests and notices hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representative in care of Barclays Capital
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: Syndicate Desk with a copy to
the same address to the attention of the legal department; if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement, Attention:
General Counsel; and if to Advanta shall be delivered or sent by mail, telex or
facsimile transmission to Advanta Bank Corp., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇, Attention: Treasury, provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representative upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
13. Termination.
(a) The Underwriters may terminate this Agreement immediately
upon the giving of notice at any time at or prior to the Closing Date if any of
the events or conditions described in Section 7(q) of this Agreement shall occur
and be continuing. In the event of any
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such termination, the covenant set forth in the provisions of Section 10, the
indemnity agreement set forth in Section 8, and the provision of Section 11
shall remain in effect.
(b) This Agreement may not be terminated by the Company or
Advanta without the written consent of the Underwriters, except in accordance
with law.
(c) Notwithstanding anything herein to the contrary, in the
event the Company or Advanta does not perform any obligation under this
Agreement or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the Underwriters'
obligations hereunder may be immediately cancelled by the Underwriters by notice
thereof to the Company or Advanta. Any such cancellation shall be without
liability of any party to any other party except that the provisions of Sections
8, 10 and 11 hereof shall survive any such cancellation.
14. Successors. This Agreement shall be binding upon, and inure solely
to the benefit of, the Underwriters, the Company and Advanta and, to the extent
provided in Sections 8 and 11 hereof, the officers and directors of the Company
and Advanta and each person who controls the Company and Advanta or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Offered Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. Representation of Underwriters. In all dealings hereunder, you
shall act on behalf of each of the Underwriters, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you.
16. Time of the Essence. Time shall be of the essence of this
Agreement.
17. Counterparts. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and Advanta hereby submit to the non-exclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of New
York in any suit or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby.
19. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
[SIGNATURE PAGE FOLLOWS]
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If you are in agreement with the foregoing, please sign and return to
us a counterpart hereof for each of the Company and Advanta and for each of the
Underwriters and each counsel to the parties hereto, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, Advanta, and the Company.
Very truly yours,
ADVANTA BUSINESS RECEIVABLES CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President - Finance
ADVANTA BANK CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President - Structured Finance
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
Barclays Capital Inc.,
as Representative of the Underwriters
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Authorized Representative
31
SCHEDULE A
UNDERWRITER CLASS A CLASS B CLASS C
----------- ------- ------- -------
Barclays Capital Inc. $120,000,000 $21,375,000 $15,750,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $120,000,000 $ 7,125,000 $ 5,250,000
------------ ----------- -----------
Total $240,000,000 $28,500,000 $21,000,000
============ =========== ===========
Purchase Price
(as a percentage of
the principal amount of
each class of Offered Securities)
Class A: 99.675%
Class B: 99.625%
Class C: 99.550%