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EXHIBIT 1.1
ADVANTA BUSINESS CARD MASTER TRUST
ASSET-BACKED NOTES, SERIES 2000-C
$320,000,000 CLASS A NOTES
$38,000,000 CLASS B NOTES
$28,000,000 CLASS C NOTES
UNDERWRITING AGREEMENT
November 8, 2000
Morgan Stanley & Co. Incorporated
as Representative of the several Underwriters
1585 Broadway
New York, New York 10036
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 $320,000,000 aggregate principal amount of
Advanta Business Card Master Trust Class A Asset Backed Notes, Series 2000-C
(the "Class A Notes"), $38,000,000 aggregate principal amount of Advanta
Business Card Master Trust Class B Asset Backed Notes, Series 2000-C (the "Class
B Notes"), $28,000,000 aggregate principal amount of Advanta Business Card
Master Trust Class C Asset Backed Notes, Series 2000-C (the "Class C Notes" and
together with the Class A Notes and the Class B Notes, the "Offered Securities")
and $14,000,000 aggregate principal amount of Advanta Business Card Master Trust
Class D Asset Backed Notes, Series 2000-C (the "Class D Notes" and together with
the Class A Notes, the Class B Notes and the Class C Notes, the "Notes").
The Issuer is a common law trust formed pursuant to a Trust Agreement,
dated as of August 1, 2000 (the "Trust Agreement") between the Company and
Wilmington Trust Company, as owner trustee (the "Owner Trustee"). The Notes will
be issued pursuant to a Master Indenture, dated as of August 1, 2000 (the
"Master Indenture"), between the Issuer and Bankers Trust Company, as indenture
trustee (the "Indenture Trustee"), as supplemented by the Series 2000-C
Indenture Supplement with respect to the Notes dated as of November 16, 2000
(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.
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,
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pursuant to a Receivables Purchase Agreement, dated as of August 1, 2000 (the
"Receivables Purchase Agreement"), between the Company and Advanta. Advanta has
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 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
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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 ("EDGAR"). 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
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
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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 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
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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 herein), 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
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
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
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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 Company, Advanta or the Issuer;
and, to the best of the Company's and Advanta's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others;
(l) Neither the Company nor Advanta is in violation of its respective
Articles of Incorporation or By-laws, and neither the Company nor Advanta is in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound;
(m) None of the Company, Advanta and the Issuer is and, after giving
effect to the offering and sale of the Offered Securities and other transactions
contemplated hereby, will be, an
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"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 Trust
during the period from October 1, 2000 through November 16, 2000) had an
aggregate outstanding balance determined as of October 1, 2000 in the amount set
forth in the Prospectus Supplement;
(o) No selection procedures 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) Upon execution and delivery of the Receivables Purchase Agreement
and 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 (as defined in the Transfer and Servicing Agreement)
constituting a material portion of the aggregate Receivables in the Initial
Designated 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, 1999, as filed with the SEC. Except as set forth
in or contemplated in the Registration Statement and the Prospectus or as
described by Advanta Corp. in SEC filings or press releases of general
distribution, copies of which have been delivered to you, there has been no
material adverse change in the condition (financial or otherwise) of Advanta
Corp., the Company or Advanta since December 31, 1999;
(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;
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(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 November 16, 2000 (the "Closing Date");
(w) Arthur Andersen 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 Morgan Stanley &
Co. Incorporated (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 November 16, 2000 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, Schorr and Solis-Cohen LLP, 250 Park
Avenue, New York, New York 10177 (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
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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.
(a) 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.
(b) 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 Act 1986 with respect to anything
done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom;
(iii) it has only 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 Act 1986
(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 Act 1986 (Investment Advertisements)
(Exemptions) Order 1996.
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
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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 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. 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
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<PAGE> 11
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 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.
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<PAGE> 12
(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
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and
Kidder Structured Asset Corporation (as made generally applicable to
registrants, issuers and underwriters by the Commission's response to the
request of the Public Securities Association dated May 27, 1994), 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.
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, Bagley, Cornwall & McCarthy, 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
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<PAGE> 13
and (y) has the power, authority and legal right to acquire
and own the Designated Accounts and the Receivables, to sell
and assign the Receivables to the Company pursuant to the
Receivables Purchase Agreement, to service the Designated
Accounts and Receivables pursuant to the Transfer and
Servicing Agreement and to enter into and perform its
obligations under this Agreement and each Transaction Document
to which it is a party.
(ii) Advanta has, or at the time of execution
thereof, had, the power and authority to execute and deliver
each of the Transaction Documents to which it is a party, and
Advanta had and at all times since the time of execution
thereof has had and does now have the power to consummate the
transactions contemplated herein and in the Transaction
Documents to which it is a party.
(iii) Advanta has duly authorized, executed and
delivered each Transaction Document to which it is a party.
(iv) This Agreement has been duly authorized,
executed and delivered by Advanta.
(v) No consent, approval, authorization or order of,
or filing of any UCC financing statements with, any court or
governmental agency or body of the State of Utah having
jurisdiction over Advanta is required for the consummation of
the transactions contemplated by this Agreement and the
Transaction Documents, except for (x) filing of UCC financing
statements with respect to the transactions contemplated in
the Receivables Purchase Agreement and the Transfer and
Servicing Agreement and (y) such consents, approvals,
authorizations, orders or filings as may be required under the
state securities or blue sky laws of any jurisdiction.
(vi) The execution, delivery and performance by
Advanta of this Agreement, the transfer of the Receivables
from Advanta to the Company and, in turn, from the Company to
the Issuer, the issuance and sale of the Notes and the
consummation of any other of the transactions contemplated
herein or in the Transaction Documents will 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
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<PAGE> 14
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 Woodburn 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.
(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.
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<PAGE> 15
(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, Schorr and Solis-Cohen 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.
(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 "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.
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<PAGE> 16
(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
issuance of the Notes will not cause the Issuer to 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 constitutes the legal, valid and
binding obligation of the Issuer under the laws of the State
of New York.
(ix) The Registration Statement and the Prospectus
(other than the financial and statistical information
contained therein) on their respective effective dates or
dates of issuance complied as to form in all material respects
to the applicable requirements of the Act and the Rules and
Regulations.
(x) Such counsel shall state that they have
participated in conferences with representatives of the
Company and Advanta and their accountants, the Underwriters
and counsel to the Underwriters 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 (vii) 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
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<PAGE> 17
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 Series 2000-C Notes, (b) seeking to prevent the
issuance of the Series 2000-C Notes or the consummation of any
of the transactions contemplated by the Documents, (c) seeking
to adversely affect the income tax attributes of the Trust
Series 2000-C 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, 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 Mayer, Brown & Platt,
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, Bagley, Cornwall & McCarthy, 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.
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<PAGE> 18
(g) The Representative shall have received an opinion, dated the
Closing Date, of Woodburn 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 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) nothing has come to such officer's attention
that would lead such officer to believe that the Registration Statement or the
Prospectus, and any amendment or supplement thereto, as of its date and as of
the Closing Date, contained an untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
(z) with respect to the certificate from the officer of the Company, subsequent
to the date of the Prospectus, there has been no material adverse change or any
development involving a prospective material adverse change in the condition
financial or otherwise or in the earnings, business or operations of the Company
except as set forth in or contemplated by the Prospectus, and with respect to
the certificate from the officer of Advanta, subsequent to the date of the
Prospectus, there has been no material adverse change in the financial position
or results of operation of Advanta's business card business except as set forth
in or contemplated by the Prospectus.
(i) The Representative shall have received an opinion of Richards,
Layton & 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.
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<PAGE> 19
(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.
(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.
(j) The Representative shall have received an opinion of Richards,
Layton & 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:
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<PAGE> 20
(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, 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, 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
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<PAGE> 21
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.
(k) The Representative shall have received an opinion of Seward &
Kissel 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 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
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<PAGE> 22
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, Arthur Andersen 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 Arthur Andersen 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 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 Moody's 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 McGraw-Hill 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 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.
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<PAGE> 23
(s) Prior to the Closing Date, counsel for the Representative shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Notes as herein contemplated and related proceedings or in order to evidence
the accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained, and all actions
taken by the Company, Advanta and the Issuer in connection with the issuance and
sale of the Notes as herein contemplated shall be satisfactory in form and
substance to the Representative and counsel for the Representative.
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 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
23
<PAGE> 24
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 by counsel that
representation of such indemnified party and the indemnifying party is
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them, the indemnified party or parties
shall have the right to select separate counsel to defend such action on behalf
of such indemnified party or parties. It is understood that the indemnifying
party shall, in connection with any such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys together with appropriate local
counsel at any time from all indemnified parties not having actual or potential
differing interests with any other indemnified party. The indemnifying party
will not be liable for any settlement entered into without its consent and will
not be liable to such indemnified party under this Section 8 for any legal or
other expenses incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
24
<PAGE> 25
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.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(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 above in this subsection (d).
The amount paid or payable by an
25
<PAGE> 26
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 out-of- pocket and incidental expenses
including the reasonable fees and expenses of Underwriters' counsel.
26
<PAGE> 27
(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(g);
(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 fees or expenses of any transfer agent or registrar;
(x) reasonable fees and expenses of Underwriters' counsel; and
(xi) all other costs and expenses incident to the performance
of their obligations hereunder which are not otherwise specifically
provided for in this Section 10; provided, that neither the Company nor
Advanta waives any rights to reimbursement from the Underwriters in the
event of any Underwriter's failure to perform in accordance with this
Agreement.
(c) It is understood and agreed that, except as provided in Sections 8,
10(a) and 11, the Underwriters will pay (i) securities transfer taxes on resale
of any of the Offered Securities by them, (ii) costs and expenses of printing
the Prospectus and the Prospectus Supplement in an amount not to exceed $50,000,
(iii) any advertising expenses connected with any offers they may make and (iv)
fees and expenses of counsel to the Underwriters in an amount not to exceed
$25,000.00.
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<PAGE> 28
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 and the representations and
warranties in Section 2 shall remain in effect, and if any Offered Securities
have been purchased, 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 Morgan Stanley &
Co. Incorporated, 1585 Broadway, New York, New York 10036, with a copy to Gregg
Walker, 1221 Avenue of the Americas, 27th Floor, New York, NY 10020; 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., 11850 South Election Road, Draper,
Utah, 84020, Attention: Treasury, provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representative upon request. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
13. Termination.
(a) The Underwriters may terminate this Agreement immediately upon the
giving of notice at any time at or prior to the Closing Date if any of the
events or conditions described in Section 7(q) of this Agreement shall occur and
be continuing. In the event of any such termination, the covenant set forth in
the provisions of Section 10, the indemnity agreement set forth in Section 8,
and the provisions of Section 11 shall remain in effect.
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<PAGE> 29
(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, 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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<PAGE> 30
If you are in agreement with the foregoing, please sign and return to
us a counterpart hereof for each of the Company and Advanta and for each of the
Underwriters and each counsel to the parties hereto, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, Advanta, and the Company.
Very truly yours,
ADVANTA BUSINESS RECEIVABLES
CORP.
By: /s/ Michael Coco
-----------------------------------------
Name: Michael Coco
Title: Vice President-Finance
ADVANTA BANK CORP.
By: /s/ Mark B. Hales
-----------------------------------------
Name: Mark B. Hales
Title: President
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the date
first above written.
MORGAN STANLEY & CO. INCORPORATED
as Representative of the Underwriters
By: /s/ Warren H. Friend
-----------------------------------
Authorized Representative
Signature Page to Underwriting Agreement
<PAGE> 31
SCHEDULE A
<TABLE>
<CAPTION>
Underwriter Class A Class B Class C
----------- ------- ------- -------
<S> <C> <C> <C>
Morgan Stanley & Co. Incorporated $110,000,000 $19,000,000 $14,000,000
Barclays Capital Inc. 110,000,000 19,000,000 14,000,000
Salomon Smith Barney Inc. 110,000,000 0 0
------------ ----------- -----------
Total $320,000,000 $38,000,000 $28,000,000
============ =========== ===========
</TABLE>
<TABLE>
<S> <C>
Purchase Price
(as a percentage of
the principal amount of
each class of Offered Securities)*
Class A: 99.700%
Class B: 99.665%
Class C: 99.575%
</TABLE>
Schedule A, Page 1
