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EXHIBIT 5.1
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EXHIBIT 5.1
November 16, 2000
To the Persons Listed on
the Appendix hereto
Re: ADVANTA BUSINESS CARD MASTER TRUST
SERIES 2000-C ASSET BACKED NOTES
Ladies and Gentlemen:
We have acted as special counsel to Advanta Bank Corp., a Utah
industrial loan corporation ("ABC"), and Advanta Business Receivables Corp., a
Nevada corporation ("ABRC"), in connection with (a) the issuance and sale of
$400,000,000 aggregate principal amount of a Series of Notes known as "Advanta
Business Card Master Trust, Series 2000-C Asset Backed Notes," consisting of the
Class A Series 2000-C Asset Backed Notes (the "Class A Notes"), the Class B
Series 2000-C Asset Backed Notes (the "Class B Notes"), the Class C Series
2000-C Asset Backed Notes (the "Class C Notes") and the Class D Series 2000-C
Asset Backed Notes (the "Class D Notes"; the Class A Notes, the Class B Notes,
the Class C Notes and the Class D Notes, collectively, the "Series 2000-C
Notes") and (b) the execution and delivery of the Documents (as defined below).
Wilmington Trust Company, a Delaware banking corporation ("Wilmington
Trust"), and ABRC, as transferor (the "Transferor"), have entered into the Trust
Agreement, dated as of August 1, 2000 (the "Trust Agreement"). The Series 2000-C
Notes were issued pursuant to the Master Indenture, dated as of August 1, 2000,
between the Trust and Bankers Trust Company, as indenture trustee (the
"Indenture Trustee"), as supplemented by the Series 2000-C Indenture Supplement,
dated as of November 1, 2000 (the "Indenture Supplement"), between the Trust and
the Indenture Trustee (as supplemented by the Indenture Supplement and each
Indenture Supplement listed on the Schedule hereto, the "Indenture"). The Class
A Notes, the Class B Notes and the Class C Notes were sold pursuant to the
Underwriting Agreement, dated November 8, 2000 (the "Underwriting Agreement"),
among the Transferor, ABC and Morgan Stanley & Co. Incorporated, as the
representative of the underwriters listed on Schedule A to the Underwriting
Agreement.
Pursuant to the Receivables Purchase Agreement, dated as of August 1,
2000 (the "Receivables Purchase Agreement"), between ABC, as seller, and the
Transferor, as purchaser, ABC transferred all of its right, title and interest
in, to and under the Receivables to the Transferor. The Transferor, in turn,
transferred all of its right, title and interest in, to and under the
Receivables to the Trust, pursuant to the Transfer and Servicing Agreement,
dated as of August 1, 2000 (the "Transfer
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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and Servicing Agreement"), among the Transferor, ABC, as servicer (the
"Servicer") and the Trust. Under the Transfer and Servicing Agreement, the
Servicer agrees to service and administer the Receivables, as agent for the
Transferor and the Trust.
Pursuant to the Indenture, the Trust pledged all of its right, title
and interest in, to and under certain Collateral, including the Receivables, to
the Indenture Trustee, for the benefit of all Noteholders, to secure payment of
all Series of Notes. ABC has executed a Security Agreement, dated as of August
1, 2000 (the "Security Agreement"), in favor of the Indenture Trustee, under
which ABC has granted to the Indenture Trustee, in trust for the benefit of all
Noteholders, a security interest in the Receivables.
ABC and the Trust have entered into the Administration Agreement, dated
as of August 1, 2000 (the "Administration Agreement"), pursuant to which ABC
agrees to perform certain duties of the Trust and the Owner Trustee under the
Indenture and related documents.
The opinions expressed herein are being furnished pursuant to Section
7(d) of the Underwriting Agreement.
Capitalized terms used herein, unless otherwise defined herein, shall
have the meanings assigned thereto in the Indenture or, if not defined therein,
in the Transfer and Servicing Agreement. All terms used herein which are defined
in the Uniform Commercial Code as in effect in the State of New York (the "New
York UCC") and are not otherwise defined herein have the meanings assigned
thereto in the New York UCC. The Trust Agreement, the Indenture, the Indenture
Supplement, the Underwriting Agreement, the Receivables Purchase Agreement, the
Transfer and Servicing Agreement, the Security Agreement and the Administration
Agreement are herein referred to, collectively, as the "Documents".
We have examined (i) executed copies of the Documents, (ii) copies of
the executed and authenticated Series 2000-C Notes, (iii) the Registration
Statement on Form S-3 (No. 333-32874) relating to the Notes, filed with the
Securities and Exchange Commission (the "Commission"), in the form in which such
Registration Statement was declared effective (the "Registration Statement"),
(iv) the Prospectus dated November 3, 2000 (the "Prospectus") relating to the
Trust and the Notes and (v) the Prospectus Supplement dated November 8, 2000
(the "Prospectus Supplement") relating to the Series 2000-C Notes.
In rendering the opinions expressed herein, we have assumed, with your
permission, the following:
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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(i) ABC, ABRC, the Trust and each other party to any of the Documents
(a) was, on each date it executed and delivered any of the Documents, and is, on
the date hereof, duly formed and organized, validly existing and in good
standing in its respective jurisdiction of formation and (b) had, on each date
it executed and delivered any of the Documents, and has, on the date hereof, the
corporate or trust power, as the case may be, to execute, deliver and perform
all of its obligations under the Documents to which it is a party;
(ii) the due authorization, execution and delivery of the Documents by
all parties thereto and that the Documents constitute the legal, valid and
binding obligations of all parties thereto (other than ABC, ABRC and the Trust)
and are enforceable against all other parties thereto in accordance with their
terms;
(iii) except to the extent set forth in our opinion in paragraph 5
below, no authorization, consent, order or approval of, or registration or
declaration with, any Governmental Authority is required in connection with the
execution, delivery and performance of any of the Documents or the consummation
of any of the transactions contemplated thereby by any of the parties thereto;
(iv) except to the extent set forth in our opinion in paragraph 6
below, there are no actions, proceedings or investigations pending or threatened
against any Person 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 other transactions contemplated by the Documents, (c) seeking any
determination or ruling that would adversely affect the performance by any
Person of its obligations under, or the validity or enforceability of, any of
the Documents or any of the Series 2000-C Notes, or (d) seeking to affect the
income tax attributes of the Trust or the Series 2000-C Notes;
(v) except to the extent set forth in our opinion in paragraph 7 below,
none of the execution, delivery or performance by any Person of any of the
Documents to which it is a party (a) conflicts with or violates any Requirements
of Law or (b) conflicts with, results in any breach of the terms or provisions
of, or constitutes a default under any indenture, contract, agreement, mortgage,
deed of trust or other instrument;
(vi) that all parties to the Documents will comply with all of the
material terms thereof;
(vii) the genuineness of all signatures;
(viii) the authenticity of all documents submitted to us as originals
and the conformity to authentic originals of all documents submitted to us as
copies;
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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(ix) the legal capacity of natural persons;
(x) no party to any of the Documents has expressly or impliedly waived,
subordinated or agreed to any modification of any security interest created
under the Documents;
(xi) there is not and will not be any agreement, course of prior
dealing or other arrangements that modify, supplement or alter the agreements
expressed in any of the Documents, except as specifically referred to herein;
(xii) the conformity of the Receivables and the Designated Accounts to
the requirements of the Documents;
(xiii) that (a) the chief executive office of ABC is located in the
County of Salt Lake, State of Utah, (b) the chief executive office of ABRC is
located in the County of Washoe, State of Nevada and (c) the chief executive
office of the Trust is located in the County of New Castle, State of Delaware;
(xiv) each Person that grants a security interest in the Receivables
under any of the Documents in favor of any party has sufficient rights in the
Receivables for such security interest to attach;
(xv) each of ABRC, the Trust and the Indenture Trustee took the
Receivables in good faith, for value, and without notice or knowledge of any
adverse claims, liens or encumbrances thereon or with respect thereto or of any
defense against payment thereof, pursuant to the Receivables Purchase Agreement,
the Transfer and Servicing Agreement and the Indenture, respectively. The
Indenture Trustee took the security interest granted under the Security
Agreement in good faith, for value, and without notice or knowledge of any
adverse claims, liens or encumbrances on the Receivables or with respect thereto
or of any defense against payment thereof; and
(xvi) no Event of Default or Pay Out Event has occurred or exists.
As to questions of fact relevant to the opinions expressed herein, we
have relied upon, and assumed the accuracy and completeness of, the
representations and warranties contained in the Documents. With your permission,
all assumptions herein have been made without any independent investigation or
verification on our part, and we express no opinion with respect to the subject
matter or accuracy of such assumptions.
The opinions expressed in paragraphs 1, 2 and 3 below, with respect to
the enforceability of certain agreements, are subject to the following
qualifications:
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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(i) the effect of bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally or the
rights of creditors of Utah industrial loan corporations, and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law), including concepts of materiality,
reasonableness, good faith and fair dealing. Without limiting the foregoing, we
point out that such laws may limit the extent to which property acquired by a
debtor after the commencement of a bankruptcy or similar proceeding may be
subject to a security interest arising from a security agreement entered into by
the debtor prior to the commencement of such case.
(ii) limitations on the enforceability of a requirement that provisions
of a document may only be amended or waived in writing;
(iii) limitations on the enforceability of "severability" and
"separability" provisions depending upon the materiality of the unenforceable
provisions to the document as a whole and to the undertakings of the parties
thereunder;
(iv) limitations on the enforceability of "time is of the essence"
provisions;
(v) the fact that certain of the remedial provisions contained in the
Documents may be unenforceable in whole or in part under applicable laws and
judicial decisions, including to the extent that any such provisions contravene
public policy, but the inclusion of such provisions does not render the
applicable Document invalid, nor do such laws or judicial decisions make such
Document legally inadequate for the practical realization of the principal
benefits provided for therein. We note, however, that the unenforceability of
such provisions may result in delays in the enforcement of rights and remedies
by certain parties under the Documents;
(vi) the enforceability of the Documents in favor of any Person may be
limited if such Person fails to act in good faith and in a commercially
reasonable manner in seeking to exercise their rights and remedies thereunder.
Without limiting the generality of the foregoing, we note that a court might
hold that a technical and nonmaterial breach of, or default under, the Documents
does not give rise to a right to exercise certain remedies including, without
limitation, acceleration or termination; and
(vii) limitations on the enforceability of provisions indemnifying or
holding harmless a Person against liability or requiring contribution from a
Person for liability. Without limiting the foregoing, we note that the
enforceability of provisions which purport to provide for indemnification for
losses due to securities law violations may be limited by public policy
considerations.
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To the Persons Listed on
the Appendix hereto
November 16, 2000
Page 6
We are qualified to practice law in the State of New York and express
no opinion as to the laws of jurisdictions other than the laws of the State of
New York and the federal law of the United States of America. Furthermore, we
express no opinion herein as to applicable state "Blue Sky" laws or legal
investment laws.
Based upon the foregoing and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, it is our opinion
that:
1. Each of the Receivables Purchase Agreement, the Transfer and
Servicing Agreement, the Administration Agreement, the Security Agreement and
the Underwriting Agreement constitutes the legal, valid and binding agreement of
ABC and is enforceable against ABC in accordance with its terms.
2. Each of the Receivables Purchase Agreement, the Transfer and
Servicing Agreement and the Underwriting Agreement constitutes the legal, valid
and binding agreement of ABRC and is enforceable against ABRC in accordance with
its terms.
3. Each of the Indenture, the Indenture Supplement, the Transfer and
Servicing Agreement and the Administration Agreement constitutes the legal,
valid and binding agreement of the Trust, and is enforceable against the Trust
in accordance with its terms.
4. The Series 2000-C Notes, assuming the due execution thereof by the
Trust and the due authentication thereof by the Indenture Trustee in accordance
with the terms of the Indenture, and further assuming that payment therefor has
been made in accordance with the terms of the Underwriting Agreement, are
validly issued and outstanding, constitute legal, valid and binding obligations
of the Trust enforceable against the Trust in accordance with their terms and
are entitled to the benefits of the Indenture, as supplemented by the Indenture
Supplement.
5. 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 ABC, ABRC or the Trust.
6. To our Actual Knowledge, there are no actions, proceedings or
investigations pending or threatened against ABC, ABRC or the Trust 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 or the Series 2000-C
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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Notes under the income tax system of the United States as described in the
Prospectus under the heading "Federal Income Tax Consequences."
7. None of the execution, delivery or performance by ABC, ABRC or the
Trust 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 Requirements of Law applicable to ABC, ABRC or the
Trust 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 ABC,
ABRC or the Trust is a party or by which it or its properties are bound and of
which we have Actual Knowledge.
8. The Receivables Purchase Agreement is effective to create a valid
ownership interest or security interest in favor of the Transferor in all of
ABC's right, title and interest in, to and under the Receivables transferred to
the Transferor pursuant to the Receivables Purchase Agreement. The perfection of
such ownership interest or security interest (to the extent comprising an
interest in accounts or general intangibles) is governed by Utah law.
9. The Transfer and Servicing Agreement is effective to create a valid
ownership interest or security interest in favor of the Trust in all of ABRC's
right, title and interest in, to and under the Receivables transferred to the
Trust pursuant to the Transfer and Servicing Agreement. The perfection of such
ownership interest or security interest (to the extent comprising an interest in
accounts or general intangibles) is governed by Nevada law.
10. The Indenture is effective to create a valid security interest in
favor of the Indenture Trustee, for the benefit of the Noteholders, in all of
the Trust's right, title and interest in, to and under the Receivables
transferred to the Indenture Trustee pursuant to the Indenture. The perfection
of such security interest (to the extent comprising an interest in accounts or
general intangibles) is governed by Delaware law.
11. The Security Agreement is effective to create a valid security
interest in favor of the Indenture Trustee, for the benefit of the Noteholders,
in all of ABC's right, title and interest in, to and under the Receivables in
which a security interest is granted to the Indenture Trustee pursuant to the
Security Agreement. The perfection of such security interest (to the extent
comprising an interest in accounts or general intangibles) is governed by Utah
law.
12. The Registration Statement is effective under the Securities Act of
1933, as amended (the "Securities Act"), and to our Actual Knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
under the Securities Act, and no proceedings for that purpose have been
initiated or threatened by the Commission.
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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13. At the time it became effective, the Registration Statement and the
Prospectus as of the date thereof and the Prospectus Supplement as of the date
thereof (in each case, other than any information incorporated by reference
therein and financial or statistical information included or incorporated by
reference therein, as to which no opinion is expressed) complied as to form in
all material respects with the requirements of the Securities Act and the rules
and regulations of the Commission thereunder.
14. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "TIA"), and complies as to form with the TIA and the
rules and regulations of the Commission thereunder. The Trust is not now, and
immediately following the sale of the Notes pursuant to the Underwriting
Agreement, will not be, required to be registered pursuant to the Investment
Company Act of 1940, as amended.
15. The Documents and the Notes conform in all material respects to the
descriptions thereof contained in the Prospectus.
16. The statements in the Prospectus set forth under the captions
"Prospectus Summary - Tax Status" and " - ERISA Considerations," "Risk Factors -
If a receiver or conservator were appointed for a seller or a transferor that is
a bank, or if a seller or a transferor that is not a bank became a debtor in a
bankruptcy case, delays or reductions in payment of your notes could occur,"
"Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal
Income Tax Consequences," and the statements in the Prospectus Supplement set
forth under the captions "Summary of Terms - Tax Status," " - ERISA
Considerations," and "ERISA Considerations," to the extent that they constitute
matters of United States federal law or of New York State law, or legal
conclusions with respect thereto, while not purporting to discuss all possible
consequences of an investment in the Notes, provide a fair and accurate summary
of such law or conclusions.
We express no opinion as to:
(i) the existence of, or the right, title or interest of any of ABC,
ABRC, the Trust or any other Person in, to or under, any Receivables or any
other Collateral;
(ii) the perfection or priority of any security interest in any
Receivables or any other Collateral;
(iii) the accuracy or legal sufficiency of the description of any
Collateral in the Documents or in any Uniform Commercial Code financing
statement;
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To the Persons Listed on
the Appendix hereto
November 16, 2000
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(iv) the enforceability of any provision of the Documents by which any
Person agrees not to institute, consent to, or seek relief with respect to
itself or any third party pursuant to any bankruptcy, insolvency, receivership
or similar proceedings during specified periods of time;
(v) the enforceability of any waiver of rights or defenses set forth in
the Documents to the extent such rights or defenses may not be waived under
applicable law. Without limiting the foregoing, we note that certain rights and
duties described in Sections 1-102(3) and 9-501(3) of the New York UCC may not
be waived, released or disclaimed by agreement;
(vi) the characterization of the transfers of the Receivables or
interests therein contemplated by the Documents. As used herein the term
"security interest" has the meaning set forth in Section 1-201(37) of the New
York UCC, which definition includes both (a) an interest in personal property
which secures payment and (b) an interest of a buyer of accounts or chattel
paper which is subject to Article 9 of the New York UCC;
(vii) (a) any forum selection or waiver of venue provision; (b) any
waiver of jury trial provision; (c) whether a federal or State court outside the
State of New York would give effect to the choice of law provided in the
Documents; (d) any provision purporting to establish evidentiary standards or to
establish certain determinations as conclusive; or (e) the effect of the law of
any jurisdiction other than the State of New York wherein the enforcement of any
Document may be sought that limits the rates of interest legally chargeable or
collectible; and
(viii) any provision of the Documents (a) which authorizes or permits
(1) any Person to make determinations in its sole discretion or (2) any Person
to set-off or apply any deposit or property or any indebtedness with respect to
such Person's interest, (b) restricting access to legal or equitable remedies,
(c) purporting to appoint any Person as the attorney-in-fact of any other Person
or (d) stating that all rights or remedies of any Person are cumulative and may
be enforced in addition to any other right or remedy and that the election of a
particular remedy does not preclude recourse to any additional remedies.
We call your attention to the following:
(i) under certain circumstances described in Section 9-306 of
the New York UCC, the rights of a secured party to enforce a security
interest in proceeds of collateral may be limited; and
(ii) under certain circumstances described in Sections 9-307
and 9-308 of the New York UCC, purchasers of collateral may take the
same free of a security interest therein.
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To the Persons Listed on
the Appendix hereto
November 16, 2000
Page 10
Whenever our opinion with respect to any item is stated to be "to our
Actual Knowledge," we are referring to the actual present knowledge of the
particular Wolf, Block, Schorr and Solis- Cohen LLP attorneys who have been
involved in the transaction referred to herein. We have not undertaken any
independent investigation, examination or inquiry to determine the existence or
absence of any facts (and have not undertaken the review of any court file or
indices) and no inference as to our knowledge concerning any facts should be
drawn as a result of the limited representation undertaken by us.
The foregoing opinions are being rendered for the benefit only of the
Persons listed on the Appendix attached hereto in connection with the
transactions contemplated by the Documents and may not be disclosed to, quoted
to or relied upon by any other person or entity or for any other purpose without
the express prior written consent of the undersigned. This opinion letter is
based upon the current state of the law and facts as of the date hereof and we
hereby expressly disclaim any obligation to advise you of any changes which may
occur hereafter with respect to any of the matters addressed herein.
Very truly yours,
WOLF, BLOCK, SCHORR and SOLIS-COHEN LLP
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APPENDIX
Advanta Business Card Master Trust
c/o Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Advanta Business Receivables Corp.
639 Isbell Road
Suite 390
Reno, Nevada 89509
Advanta Bank Corp.
11850 South Election Road
Draper, Utah 84020
Bankers Trust Company,
as Indenture Trustee
Four Albany Street
New York, New York 10006
Moody's Investors Service, Inc.
99 Church Street
New York, NY 10007
Standard & Poor's Ratings Services,
a division of The McGraw-Hill
Companies, Inc.
55 Water Street
New York, New York 10041
Wilmington Trust Company,
as Owner Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Morgan Stanley & Co. Incorporated
as Representative of the Underwriters
1585 Broadway
New York, New York 10036
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SCHEDULE
1. Series 1997-A Indenture Supplement, dated as of August 1, 2000,
between the Trust and the Indenture Trustee;
2. Series 2000-A Indenture Supplement, dated as of September 1, 2000,
between the Trust and the Indenture Trustee; and
3. Series 2000-B Indenture Supplement, dated as of August 1, 2000,
between the Trust and the Indenture Trustee.
