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Exhibit 1.1
ADVANTA BUSINESS CARD MASTER TRUST
ASSET-BACKED NOTES, SERIES 2000-[____]
$[_________] CLASS A NOTES
$[_________] CLASS B NOTES
$[_________] CLASS C NOTES
UNDERWRITING AGREEMENT
__________, 2000
[__________________________________________]
as Representative of the several Underwriters
[Address]
Ladies and Gentlemen:
1. Introductory. Advanta Business Receivables Corp., a Nevada
corporation (the "Company"), and Advanta Bank Corp., a Utah industrial loan
corporation ("Advanta"), propose, subject to the terms and conditions stated
herein, to cause Advanta Business Card Master Trust, a Delaware common law trust
(the "Issuer") to sell to the Underwriters named in Schedule A hereto (the
"Underwriters"), for whom [_______________] is acting as representative (the
"Representative") an aggregate of $[_________] principal amount of the Class A
Notes, $[_____________] principal amount of the Class B Notes, and $[_________]
principal amount of the Class C Notes (collectively, the "Offered Securities"),
of the Issuer. The Offered Securities will be issued under a Master Indenture
(the "Indenture") dated as of [________], 2000 and an Indenture Supplement dated
as of [_________], 2000 (the "Indenture Supplement"), each between the Issuer
and [______________], as indenture trustee (the "Trustee").
The Company has previously purchased or will purchase from Advanta
receivables in a portfolio of MasterCard(R) business revolving credit card
accounts (as more fully defined in the Purchase Agreement and the Transfer
Agreement, the "Receivables") and certain related rights (together with the
Receivables, and as more fully defined in the Purchase Agreement, the "Purchased
Assets") pursuant to the Receivables Purchase Agreement (the "Purchase
Agreement") dated as of [________], 2000 by and between the Company and Advanta.
The Issuer will acquire the Receivables and the other Purchased Assets
pursuant to the Transfer and Servicing Agreement (the "Transfer Agreement")
dated as of [_______, 2000 by and among the Company, as transferor, Advanta, as
servicer, and the Issuer. Pursuant to the Transfer Agreement, Advanta has agreed
to service the Receivables.
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Capitalized terms used herein without definition shall have the
meanings set forth in the Indenture, the Purchase Agreement, the Transfer
Agreement or the Trust Agreement. As used herein, the term "Transaction
Documents" means the Indenture, the Indenture Supplement, the Offered
Securities, the Purchase Agreement, the Transfer Agreement and the Letter of
Representations among the Issuer, the Trustee and The Depository Trust Company.
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.
___________), including a representative form of prospectus supplement
and the related preliminary prospectus or prospectuses, 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 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") specifically relating to the Offered
Securities pursuant to Rule 424 under the Act. The registration
statement as amended at the date hereof is hereinafter referred to as
the "Registration Statement." The term "Base Prospectus" means the
prospectus dated ___________, 2000 filed pursuant to Rule 424(b) under
the Act relating to all offerings of securities under the Registration
Statement. The term "Prospectus" means the Base Prospectus together
with the Prospectus Supplement. The term "Preliminary Prospectus" means
any preliminary prospectus supplement specifically relating to the
Offered Securities, together with the Base Prospectus. As used herein,
the terms "Registration Statement," "Prospectus," "Base Prospectus" and
"Preliminary Prospectus" shall include in each case the documents, if
any, incorporated by reference therein (but not including any
Computational Materials, ABS Term Sheets or Collateral Term Sheets
described in Section 5A of this Agreement). If the Company has filed an
abbreviated registration statement to register additional debt
securities pursuant to Rule 462(b) under the Act (the "Rule 462(b)
Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462(b)
Registration Statement. 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 ("XXXXX"). 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
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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 conforms, and the Prospectus and any further
amendments to supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act, and the rules and regulations of the Commission thereunder,
and did not 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, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
following information in the Prospectus Supplement furnished on behalf
of such Underwriter: on the cover page the price to public per note and
the total price to the public, the information in each of the tables
under the caption "Underwriting", the concession and reallowance
figures appearing in the third, fourth and fifth paragraphs under the
caption "Underwriting", the information contained in the seventh,
eighth and ninth paragraphs under the caption "Underwriting" and the
discount and commission table on page S-[__] under "Underwriting"
(collectively, the "Provided Information") and the information in the
last paragraph under the caption "Underwriting". In addition, the
statements in "Description of the Notes," "The Indenture" and
"Description of the Purchase Agreement" in the Base Prospectus and
"Description of Series Provisions " in the Prospectus Supplement, to
the extent they constitute a summary of the Notes, the Indenture, the
Purchase Agreement and the Transfer Agreement, constitute a fair and
accurate summary thereof;
(c) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (but not including any Computational
Materials, ABS Term Sheets or Collateral Term Sheets described in
Section 5A of this Agreement), 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 of the Commission thereunder,
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
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Act, as applicable, and the rules and regulations of the Commission
thereunder 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in the Provided Information;
(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, Advanta, the Issuer 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 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; the Issuer has
been duly formed [and is validly existing] as a common law [business]
trust under the laws of Delaware; 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; the Issuer has the power and
authority to own its properties and conduct its business to the extent
described in the Prospectus and to perform its obligations under the
Transaction Documents to which it is a party; and each of the Company
and Advanta has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction;
(f) As of the Time of Delivery, 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;
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(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 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, Advanta and the
Issuer, 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, Advanta and the Issuer 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 Purchase Agreement, the Transfer
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, Advanta and the Issuer 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, Advanta or the Issuer is a party
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or by which the Company, Advanta or the Issuer or any of their
subsidiaries is bound or to which any of the property or assets of the
Company, Advanta or the Issuer is subject, nor will such action result
in any violation of the provisions of the Articles of Incorporation,
By-laws or Trust Agreement of the Company, Advanta, or the Issuer, as
applicable, or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company, Advanta or the Issuer 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 any of them for the issue and sale of the Offered
Securities by the Issuer, the consummation by the Company, Advanta or
the Issuer 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, Advanta or the Issuer is a party or of which any property of
the Company, Advanta or the Issuer 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, Advanta or the Issuer, 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 Xxxxxxx's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(l) None of the Company, Advanta and the Issuer is in violation of its
respective Articles of Incorporation, Trust Agreement or By-laws, and
none of the Company, Advanta and the Issuer is in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(m) None of the Company, Advanta and the Issuer is and, after giving
effect to the offering and sale of the Offered Securities and other
transactions contemplated hereby, will be, an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
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(n) As of the Initial Cut-off Date, the computer tape of the Initial
Designated Accounts made available to the Representative by Advanta and
the Company was accurate in all material respects;
(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 Purchase Agreement and the
Transfer Agreement, the Company and the Issuer, respectively, will
acquire the Receivables and the other Purchased Assets, 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 constituting a material portion of the
aggregate Receivables in the Initial Designated Accounts 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 Purchase Agreement and the
Transfer Agreement will treat the transactions contemplated by the
Purchase Agreement and the Transfer 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. 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;
(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 Purchase Agreement, the Transfer Agreement and the
Indenture and in connection with the execution, delivery and issuance
of the Offered Securities and with the transfer of the Receivables and
the other Purchased Assets, have been paid or will be paid by the
Company prior to the Closing Date; and
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(w) Xxxxxx Xxxxxxxx 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.
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 continue 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
and 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 Issuer, 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 will be represented initially by
one or more definitive global certificates in registered form which will be
deposited by or on behalf of the Issuer with The Depository Trust Company
("DTC") or, on DTC's behalf, with DTC's designated nominee or custodian and duly
endorsed to DTC or in blank by an effective endorsement. The Company will cause
the Issuer to transfer the Offered Securities in book-entry form to 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 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 office of DTC or its
designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be [9:00] a.m., New York City time, on [__________],
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 6 hereof, including the cross receipt for
the Offered Securities and any additional documents requested by the
Underwriters pursuant to Section 6(q) hereof, will be delivered at the offices
of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (the "Closing Location"), and the Offered Securities will be delivered at
the Designated Office, 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 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are authorized or
obligated by law or executive order to close.
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
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offer the Offered Securities for sale upon the terms and conditions set forth in
the Prospectus.
(b) Each of the Underwriters agrees that if it is a foreign broker or
dealer not eligible for membership in the National Association of
Securities Dealers, Inc. (the "NASD"), it will not effect any
transaction in the Offered Securities within the United States or
induce or attempt to induce the purchase of or sale of the Offered
Securities within the United States, except that you shall be permitted
to make sales to the other Underwriters or to their United States
affiliates; provided that such sales are made in compliance with an
exemption of certain foreign brokers or dealers under Rule 15a-6 under
the Exchange Act, and in conformity with the Rules of Fair Practice of
the NASD as such rules apply to non-NASD brokers or dealers.
(c) Each Underwriter further represents that:
(i) it has not offered or sold and, prior to the expiry of six
months from the Closing Date, will not offer or sell, any Offered
Securities to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for purposes of their
business, or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services 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
any supplement to the Registration Statement (including any
post-effective amendment and any filing under Rule 462(b) under the
Act) or Prospectus prior to the Time of Delivery 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
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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) The Company will furnish the Underwriters with copies of the
Prospectus in such quantities as the Underwriters may from time to time
reasonably request, and, if the delivery of a prospectus is required at
any time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the
Offered Securities and if at such time any event shall have occurred 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 in order to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act or the
Exchange Act or the Trust Indenture Act, will notify the Representative
and promptly will file such document which will correct such statement
or omission and will prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representative may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Offered Securities at any time nine months or more
after the time of issue of the Prospectus, upon the Representative's
request will, at the Company's expense, prepare and deliver to such
Underwriter as
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many copies as such Underwriter may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act.
(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 from the date hereof and continuing to
and including the later of the Time of Delivery or the termination of
the syndicate, which shall in no event exceed 30 days from the Time of
Delivery, neither the Company nor Advanta will offer, sell, contract to
sell or otherwise dispose of, except as provided hereunder, 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 Trustee and each Rating Agency pursuant to Section 3.06 of
the Transfer Agreement, as soon as such statement is furnished to
Advanta.
(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 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 and (iv) 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 Xxxxxxx 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
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affiliates shall take any action inconsistent with the Issuer's
ownership of such Receivables, other than as permitted by the
Transaction Documents.
(k) To the extent, if any, that the rating provided with respect to the
Offered Securities by any of the Rating Agencies that initially rate
the Offered Securities is conditional upon the furnishing of documents
or the taking of any other reasonable actions by the Company or
Advanta, the Company and Advanta will use their best efforts to
furnish, as soon as practicable, such documents and take (or cause the
taking of) any such other actions.
(l) Each of the Company and Advanta will use the net proceeds received
by it from the issuance of the Offered Securities in the manner
specified in the Prospectus under the caption "Use of Proceeds."
(m) The Company will file with the Commission within fifteen days of
the issuance of the Offered Securities a current report on Form 8-K
setting forth specific information concerning the Offered Securities
and the Receivables to the extent that such information is not set
forth in the Prospectus. The Company will also file with the Commission
a current report on Form 8-K setting forth all Computational Materials,
ABS Term Sheets and Collateral Term Sheets (as such terms are defined
herein) provided to the Company by any Underwriter within the
applicable time periods allotted for such filing pursuant to the
No-Action Letters (as such term is defined herein).
5A. Investor Information. Each Underwriter may prepare and provide to
prospective investors certain Computational Materials, ABS Term Sheets or
Collateral Term Sheets in connection with its offering of the Offered
Securities, subject to the following conditions:
(a) Such Underwriter shall comply with the requirements of the
No-Action Letter of May 20, 1994 issued by the Commission to Xxxxxx,
Peabody Acceptance Corporation I, Xxxxxx, Xxxxxxx & Co. Incorporated
and Xxxxxx Structured Asset Corporation, as made applicable to other
issuers and underwriters by the Commission in response to the request
of the Public Securities Association dated May 24, 1994 (collectively,
the "Xxxxxx/PSA Letter"), and the requirements of the No-Action Letter
of February 17, 1995 issued by the Commission to the Public Securities
Association (the "PSA Letter" and, together with the Xxxxxx/PSA Letter,
the "No-Action Letters").
(b) For purposes hereof, "COMPUTATIONAL MATERIALS" shall have the
meaning given such term in the No-Action Letters, but shall include
only those Computational Materials that have been prepared or delivered
to prospective investors by any Underwriter. For purposes hereof, "ABS
TERM SHEETS" and "COLLATERAL TERM SHEETS" shall have the meanings given
such terms in the PSA Letter but shall include only those ABS Term
Sheets or Collateral Term Sheets that have been prepared or delivered
to prospective investors by any Underwriter.
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(c) Each Underwriter shall provide to the Company any Computational
Materials, ABS Term Sheets or Collateral Term Sheets which are provided
to investors by it no later than the date preceding the date such
Computational Materials, ABS Term Sheets or Collateral Term Sheets are
required to be filed pursuant to the applicable No-Action Letters. Each
Underwriter may provide copies of the foregoing in a consolidated or
aggregated form including all information required to be filed.
(d) In the event that the Company or any Underwriter discovers an error
in the Computational Materials, ABS Term Sheets or Collateral Term
Sheets, the Underwriter that prepared such material shall prepare
corrected Computational Materials, ABS Term Sheets or Collateral Term
Sheets, as applicable, and deliver them to the Company for filing
pursuant to Section 5(o).
6. 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
continue 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 reasonable satisfaction;
(b) The Underwriters shall have received an opinion, dated the Closing
Date, of [_____________] as special counsel for Advanta, satisfactory
in form and substance to the Representative and its counsel to the
effect that:
(i) Advanta (x) has been duly incorporated and is validly
existing as an industrial loan corporation under the laws of the State
of Utah, with power and authority to own its properties and conduct its
business as described in the Prospectus and (y) has the power,
authority and legal right to acquire and own the Designated Accounts
and the Receivables, to sell and assign the Receivables to the Company
pursuant to the Purchase Agreement and to service the Designated
Accounts and Receivables pursuant to the Transfer Agreement;
(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 Xxxxxxx had and at all times
since the time of execution thereof has had and does
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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, and, as of the Closing
Date, will have executed and delivered, each Transaction Document to
which it is a party;
(iv) This Agreement has been duly authorized, executed and
delivered by Xxxxxxx;
(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 Purchase Agreement and the Transfer 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; and
(vii) To such counsel's knowledge, there are no actions,
proceedings or investigations pending before any court, administrative
agency or other tribunal (v) asserting the invalidity of this
Agreement, any of the Transaction Documents or the Notes, (w) seeking
to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement or the Transaction
Documents, (x) which might materially and adversely affect the
performance by Advanta of its obligations under, or the validity or
enforceability of, this Agreement or any of the Transaction Documents
to which it is a party or (y) seeking adversely to affect the federal
income tax attributes of the Notes as described in the Base Prospectus
under the heading "Federal Income Tax Consequences."
(c) The Underwriters shall have received an opinion, dated the Closing
Date, of [_____________] as special 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 Designated Accounts and the
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Receivables, to sell and assign the Receivables to the Issuer pursuant
to the Transfer Agreement;
(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, and, as of the Closing
Date, will have 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 Purchase Agreement and the Transfer 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, (y) any rule, order,
statute or regulation known to such counsel to be currently applicable
to the Company or (z) any agreement or other instrument, known to such
counsel, to which the Company is a party or by which it is bound; and
(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."
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(d) The Underwriters shall have received an opinion dated the Closing
Date, of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx 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, including the
allocation of Collections provisions thereof, 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 conservator or receiver were appointed for a seller
or transferor that is a bank, or if a seller or transferor that is not
a bank became a debtor in a bankruptcy case, delays or reductions in
payment of your notes could occur," "Material Legal Aspects of the
Receivables," "ERISA Considerations" and "Federal Income Tax
Consequences" and the statements in the Prospectus Supplement under the
headings "Summary of Terms-Tax Status" and " - ERISA Considerations"
and "ERISA Considerations," to the extent they constitute matters of
law or legal conclusions with respect thereto, have been reviewed by us
and are correct in all material respects.
(v) This Agreement, the Transaction Documents and the Notes
conform in all material respects to the descriptions thereof contained
in the Prospectus.
(vi) The Indenture has been duly qualified under the TIA and
complies as to form with the TIA and the rules and regulations of the
Commission thereunder. The Trust 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 "U.S. Federal Income Tax Consequences", the Notes will properly
be characterized as indebtedness and 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.
(viii) The Indenture constitutes the legal, valid and binding
obligation of the Issuer under the laws of the State of New York.
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(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 appear on their face to
be appropriately responsive in all material respects to the applicable
requirements of the Act and the Rules and Regulations; such counsel has
no reason to believe that either the Registration Statement or the
Prospectus, as of such respective dates, contained any untrue statement
of a material fact or omitted 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,
or that the Prospectus, as amended or supplemented as of the date of
such opinion, 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 (except that such counsel
may express no opinion as to (x) any financial statements, supporting
schedules or other financial or statistical information included in the
Registration Statement or the Prospectus or (y) the exhibits to the
Registration Statement.
(x) If the FDIC is appointed as conservator or receiver for
Advanta and if a court were to determine that the Company has a
security interest in the Receivables and the proceeds thereof, the
court would hold that the security interest of the Company would be
enforceable against Advanta with respect to the Receivables and such
proceeds.
(e) The Underwriters shall have received from [___________________],
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 Underwriters shall have received an opinion, dated the Closing
Date, of [____________________], special Utah counsel for Advanta,
satisfactory in form and substance to the Representative and its
counsel with respect to (i) certain matters relating to the transfer of
the Receivables from Advanta to the Company and (ii) the perfection of
the security interest in favor of the Company in the Receivables and
the proceeds thereof.
(g) The Underwriters shall have received an opinion, dated the Closing
Date, of [___________________], special Nevada counsel for 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 interests in favor of the Issuer in the
Receivables and the proceeds thereof.
(h) The Underwriters shall have received a certificate from each of the
Company and Advanta, dated the Closing Date, of two Vice Presidents or
more senior officers of the Company or Advanta, as the case may be, in
which such officers, to the best of their knowledge after reasonable
investigation, shall state that (u) the representations and warranties
of the Company and Advanta, as the case may be, in this Agreement
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are true and correct in all material respects on and as of the Closing
Date, (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, (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 officers' attention that would lead such
officers 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) in the officer's certificate for
Advanta only, 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 credit card business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(i) The Underwriters shall have received an opinion of
[________________], counsel to the Owner Trustee, dated the Closing
Date, satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Owner Trustee is duly incorporated and validly
existing as a banking corporation in good standing under the laws of
the State of Delaware;
(ii) The Owner Trustee has the power and authority to execute,
deliver and perform the Trust Agreement and to consummate the
transactions contemplated thereby;
(iii) The Trust Agreement has been duly authorized, executed
and delivered by the Owner Trustee and constitutes a legal, valid and
binding obligation of the Owner Trustee, enforceable against the Owner
Trustee in accordance with its terms;
(iv) Each of the Indenture, the Trust Agreement and the
Transfer Agreement (collectively referred to in this subsection (j) as
the "Trust Documents") has been duly executed and delivered by the
Owner Trustee, as Owner Trustee on behalf of the Issuer;
(v) Neither the execution, delivery or performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of the Trust Documents, nor the consummation of the
transactions by the Owner Trustee, in its individual capacity or as
Owner Trustee, as the case may be, contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification
with, or the taking of any other action in respect of, any governmental
authority or agency of the State of Delaware or the United States of
America governing the banking or trust powers of the Owner Trustee;
(vi) Neither the execution, delivery and performance by the
Owner Trustee, in its individual capacity or as Owner Trustee, as the
case may be, of the Trust Documents,
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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; and
(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 Underwriters shall have received an opinion of
[_______________], special Delaware counsel to the Issuer, dated the
Closing Date, satisfactory in form and substance to the Representative
and its counsel, to the effect that:
(i) The Issuer is validly existing as a common law trust under
the laws of the State of Delaware.
(ii) The Trust Agreement constitutes a legal, valid and
binding obligation of the Owner Trustee and the Transferor, enforceable
against the Owner Trustee and the Transferor, in accordance with its
terms;
(iii) The Trust Agreement authorizes the Issuer to execute and
deliver the Transfer Agreement and the Indenture, to issue the Notes
and the Transferor Certificate and to Grant the Trust Estate to the
Indenture Trustee as security for the Notes;
(iv) The Issuer has the power and authority, pursuant to the
Trust Agreement to execute, deliver and perform its obligations under
the Trust Agreement, the Indenture and the Transfer Agreement
(collectively referred to in this subsection (j) as the "Trust
Documents"), the Notes and the Owner Certificate and has duly
authorized, executed and delivered such agreements and obligations;
(v) When the Transferor Certificate is duly executed and
issued by the Issuer and duly authenticated by the Owner Trustee in
accordance with the Trust Agreement, the Transferor Certificate will be
validly issued and entitled to the benefits of the Trust Agreement;
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(vi) Neither the execution, delivery and performance by the
Issuer of the Trust Documents, the Notes or the Transferor Certificate,
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) No creditor of the holder of the Transferor
Certificate shall have any right to obtain possession of, or otherwise
exercise legal or equitable remedies with respect to, the property of
the Issuer except in accordance with the terms of the Trust Agreement;]
[(ix) The Issuer may not be terminated or revoked by any
holder of a Certificate, and the dissolution, termination or bankruptcy
of any holder of a Certificate shall not result in the termination or
dissolution of the Issuer, except to the extent otherwise provided in
the Trust Agreement;] [(x) There is no excise or other tax imposed by
the State of Delaware upon the perfection of a security interest in the
Receivables;]
[(xi) There is no excise or other tax imposed by the State of
Delaware upon the transfer of the Receivables to or from the Issuer;]
[(xii) There is no personal property tax imposed by the State
of Delaware upon or measured by the corpus of the Issuer;]
[(xiii) The characterization of the Issuer for federal income
tax purposes, whether as a trust, partnership or association taxable as
a corporation, will be determinative of the character of the Issuer
under the laws of the State of Delaware concerning any tax imposed on
or measured by income;]
[(xiv) Assuming the Issuer will be taxed as a partnership for
federal income tax purposes, there will be no income tax imposed by the
State of Delaware upon the Issuer entity;]
[(xv) 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 purpose of ascertaining such income, the amount of
taxable income as computed for federal income tax purposes will be
determinative, whether such amount is computed based upon a
characterization of the transaction as a sale or as a loan;]
(xvi) There is no document or stamp tax imposed by the State
of Delaware upon
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the issuance of the Notes;
(xvii) There is no income tax imposed by the [City of
Wilmington, Delaware] upon the Issuer and the [City of Wilmington,
Delaware] is prohibited by Delaware State law from imposing a personal
property tax upon or measured by the corpus of the Issuer; and
(xviii) The Transferor is the sole beneficial owner of the
Issuer.
(k) The Underwriters shall have received an opinion of
[___________________], 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 has been duly incorporated and is
validly existing as a banking corporation under the laws of the State
of [_______________] and has the power and authority to enter into and
take all action required of it and accept the trusts imposed by the
Indenture and to act as Indenture Trustee under the Indenture;
(ii) The acknowledgment by the Indenture Trustee of the
Administration 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) The Indenture Trustee is duly authorized and empowered to
exercise trust powers under applicable law;
(v) Neither the execution and delivery of the Notes, the
acknowledgment of the Administration Agreement, the execution, delivery
nor 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 [__________________] governing
the banking or trust powers of the Indenture Trustee or (B) the
Certificate of Incorporation or Bylaws of the Indenture Trustee.
(vi) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the
State of [__________________] 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 Agreement.
(l) [The Underwriters shall have received an opinion dated the Closing
Date, of Wolf, Block, Xxxxxx and Xxxxx - Xxxxx LLP, special counsel to
the Company and Advanta, satisfactory in form and substance to the
Representative and its counsel, to
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the effect that transfer of the Receivables from Advanta to the Company
would constitute an absolute sale rather than a borrowing of Advanta
secured by the Receivables and would not be property of the estate of
Advanta under Section 541(a) of the Bankruptcy Code, and the rights of
the Company to the Receivables would not be impaired by the operation
of Section 362(a) of the Bankruptcy Code.]
(m) You shall have received reliance letters addressed to the
Representative, dated as of the Closing Date, allowing the
Representative to rely on each opinion of counsel delivered to a Rating
Agency, the Indenture Trustee, the Company or Advanta in connection
with the issuance of the Notes.
(n) At the Time of Delivery, [_________________________] 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 [__________________] 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;
(o) Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall not have
been any change, or any development involving a prospective change, in
or affecting the Company or Advanta (other than as contemplated in the
Registration Statement) which, in the reasonable judgment of the
Representative, would be expected to have an adverse effect on either
(a) the ability of such person to consummate the transactions
contemplated by, or to perform its respective obligations under, this
Agreement or any of the Transaction Documents to which it is a party or
(b) the Receivables that, in either case, would make it impractical or
inadvisable to proceed with the offering or the delivery of the Offered
Securities as contemplated by the Registration Statement and the
Prospectus (and any supplements thereto);
(p) At the Time of Delivery, (i) the Class A Notes, the Class B Notes
and the Class C Notes shall be rated by Xxxxx'x Investors Service, Inc.
("Moody's") at least "Aaa", "A-2", and "Baa2", respectively, (ii) the
Class A Notes, the Class B Notes and the Class C Notes shall be rated
by Fitch IBCA, Inc. ("Fitch") at least "AAA", "A" and "BBB",
respectively and (iii) the Class A Notes, the Class B Notes and the
Class C Notes shall be rated by Standard & Poor's Rating Services
("Standard & Poor's") at least "AAA", "A" and "BBB", respectively.
(q) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a general
moratorium on commercial banking activities declared by either Federal
or New York State authorities; or (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this clause (iii) in the judgment of the
Representative makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Offered Securities on the
terms and in the manner contemplated in the Prospectus;
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If any of the conditions specified in this Section 6 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.
7. 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 Provided Information and provided further
that such Provided Information was not based upon Company-Provided
Information (as defined below) and (ii) any losses, claims, damages,
liabilities, joint or several, and expenses whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Computational Materials, ABS Term Sheets
or Collateral Term Sheets distributed by any Underwriter; provided,
however, that the Company and Advanta shall not be liable in any such
case if such untrue statement or alleged untrue statement of a material
fact was made in reliance upon and in conformity with Derived
Information provided by such Underwriter expressly for use in the
Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statement or alleged untrue statement did not
derive from an inaccuracy in the Company-Provided Information used in
the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets. The foregoing indemnity agreement is in
addition to any liability which each of the Company and Advanta may
otherwise have to the Underwriters or any person who controls such
Underwriter.
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(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and Advanta, their respective directors and
officers and each person, if any who controls the Company or Advanta,
as the case may be, within the meaning of Section 15 of the Act,
against (i) any losses, claims, damages or liabilities, joint or
several, to which the Company, Advanta or such indemnified person may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (x) an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or (y) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
the Registration Statement or the Prospectus in reliance upon and in
conformity with the Provided Information and provided that such
Provided Information was not based upon Company-Provided Information
(as defined herein); 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 and (ii) any losses, claims,
damages and expenses described in the indemnity contained in subsection
(a) of this Section 7, but only with respect to untrue statements or
alleged untrue statements made in the Computational Materials,
Collateral Term Sheets or ABS Term Sheets furnished by such Underwriter
to the extent that such untrue statement or alleged untrue statement of
a material fact was made in reliance upon and in conformity with
Derived Information provided by it expressly for use in the
Computational Materials, the ABS Term Sheets or the Collateral Term
Sheets and the untrue statements or alleged untrue statements were not
derived from any inaccuracy in the Company-Provided Information used in
the preparation of such Computational Materials, ABS Term Sheets or
Collateral Term Sheets. The foregoing indemnity agreement is in
addition to any liability which the Underwriters may otherwise have to
each of the Company and Advanta.
(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; but
the omission so to notify the indemnifying party shall not relieve it
from any liability which it may have to any indemnified party otherwise
than under such subsection except to the extent it has been materially
prejudiced by such failure. 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
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indemnifying party); provided, however, that if the defendants in any
such action include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised in writing
(with a copy to the indemnifying party) by counsel that representation
of such indemnified party and the indemnifying party is inappropriate
under applicable standards of professional conduct due to actual or
potential differing interests between them, the indemnified party or
parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. It is understood
that the indemnifying party shall, in connection with any such action
or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of only
one separate firm of attorneys together with appropriate local counsel
at any time from all indemnified parties not having actual or potential
differing interests with any other indemnified party. The indemnifying
party will not be liable for any settlement entered into without its
consent and will not be liable to such indemnified party under this
Section 7 for any legal or other expenses incurred by such indemnified
party in connection with the defense thereof unless (i) the indemnified
party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party
shall not have employed counsel reasonably satisfactory to the
indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party; and
provided that, if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) Each Underwriter severally agrees, except to the extent any loss,
claim, damage or liability described in this subsection (d) occurs
because Company-Provided Information (defined below) is not accurate
and complete in all material respects, to indemnify and hold harmless
the Company and Advanta, and their respective directors, officers,
managers and controlling persons within the meaning of Section 15 of
the Act, against any and all losses, claims, damages or liabilities,
joint or several, to which they 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 any untrue
statement of a material fact contained in the Derived Information
provided by such Underwriter, or arise out of or are based upon 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 agrees to reimburse each such indemnified party for any
legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any
such loss, claim, damage, liability or action, provided that, in no
event shall any Underwriter be responsible under this clause (d) for
any amount in excess of the underwriting discount applicable to the
Offered Securities purchased by such Underwriter hereunder. Each
Underwriter's obligations under this Section 7(d) shall be in addition
to any liability which each Underwriter may otherwise have to the
Company or Advanta.
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(e) Each of the Company and Xxxxxxx agrees to indemnify and hold
harmless the Underwriters, each of the Underwriters' officers and
directors and each person who controls the Underwriters within the
meaning of Section 15 of the Act against any and all losses, claims,
damages or liabilities, joint or several, to which they 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 any untrue statement of a material fact contained in the
Company-Provided Information provided by the Company and Advanta, or
arise out of or are based upon 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 agrees to
reimburse each such indemnified party for any legal or other expenses
reasonably incurred by him, her or it in connection with investigating
or defending or preparing to defend any such loss, claim, damage,
liability or action as such expenses are incurred. The Company and
Advanta's obligation under this Section 7(e) shall be in addition to
any liability which they may otherwise have to the Underwriters.
The procedures set forth in Section 7(c) shall be equally applicable to
Sections 7(d) and 7(e).
(f) For purposes of this Section 7, the term "DERIVED INFORMATION"
means such portion, if any, of the information delivered to the Company
or Advanta by the Underwriters for filing with the Commission as:
(i) is not contained in the Prospectus without taking into
account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral Term
Sheets, ABS Term Sheets or Computational Materials (as such terms are
interpreted in the No-Action Letters).
"COMPANY-PROVIDED INFORMATION" means any computer tape furnished to the
Underwriters by the Company concerning the Receivables or any other
information furnished by the Company to the Underwriters that is relied
on or is reasonably anticipated by the parties hereto to be relied on
by the Underwriters in the course of the Underwriters' preparation of
its Derived Information or the Provided Information.
(g) If the indemnification provided for in this Section 7 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
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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 (g) 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 (g). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this subsection (g) 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 (g), 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 (g) to contribute are
several in proportion to their respective underwriting obligations and
not joint.
(h) The obligations of the Company and Advanta under this Section 7
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 7
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.
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8. 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 Section 10 hereof. 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.
9. Reimbursement of Expenses. 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 6 have not been met, or
(y) the Underwriters terminate the engagement pursuant to Section 12 or because
any conditions precedent in Section 6 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. In addition, whether
or not the Offered Securities are issued or sold:
(a) 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 9(b)
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 6(g);
(iii) filing fees in connection with the transactions
contemplated hereby including, but not limited to, the Commission;
(iv) the Trustee's fees and expenses and reasonable fees and
expenses of counsel to the Trustee;
(v) the costs and expenses of printing the Prospectus (except
the amount to be paid by the Underwriters in Section 9(b) 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
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the Offered Securities;
(vii) all expenses in connection with the qualification of the
Offered Securities under state securities laws, including the fees and
disbursements of counsel in connection with the Blue Sky Survey, if
applicable;
(viii) the cost of preparing the Offered Securities;
(ix) the cost or expenses of any transfer agent or registrar;
and
(x) all other costs and expenses incident to the performance
of their obligations hereunder which are not otherwise specifically
provided for in this Section 9; 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.
(b) It is understood and agreed that, except as provided in Sections 7
and 10, the Underwriters will pay (i) securities transfer taxes on
resale of any of the Offered Securities by them, (ii) 50% of the costs
and expenses of printing the Prospectus and the Prospectus Supplement,
(iii) any advertising expenses connected with any offers they may make
and (iv) fees and expenses of counsel to the Underwriters.
10. 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 8 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 9, and the respective obligations of the
Company and the Underwriters pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder, the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8, 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 7 and 9 hereof.
11. Notices. All statements, requests, notices and agreements 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
[_______________________________],
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Attention: [________________];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., 00000 Xxxxx Xxxxxxxx Xxxx, Xxxxxx, Xxxx, 00000, Attention:
[_______________], provided, however, that any notice to an Underwriter pursuant
to Section 7(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.
12. Termination.
(a) This Agreement may be terminated by you in your absolute discretion
at any time upon the giving of notice at any time prior to the Closing
Date: (i) if there has been any material adverse change in the
condition, financial or otherwise, of the Company or Advanta, or in the
earnings, business affairs or business prospects of the Company or
Advanta, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak or escalation of hostilities or
other calamity or crisis the effect of which on the financial markets
of the United States is such as to make it, in your reasonable
judgment, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) if trading
generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or
any other governmental authority, or (iv) if a banking moratorium has
been declared by either federal or New York authorities. In the event
of any such termination, no party will have any liability to any other
party hereto, except as otherwise provided in Section 7 hereof.
(b) This Agreement may not be terminated by the Company or Advanta
without the written consent of the Underwriters, except in accordance
with law.
(c) Notwithstanding anything herein to the contrary, in the event the
Company or Advanta does not perform any obligation under this Agreement
or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the
Underwriters' obligations hereunder may be immediately cancelled by the
Underwriters by notice thereof to the Company or Advanta. Any such
cancellation shall be without liability of any party to any other party
except that the provisions of Sections 7 and 10 hereof shall survive
any such cancellation.
13. 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 7 and 8 hereof, the officers, directors and managers 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
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Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. 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.
15. Time of the Essence. Time shall be of the essence of this
Agreement.
16. 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.
17. 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.
18. Miscellaneous. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
[SIGNATURE PAGE FOLLOWS]
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If you are in agreement with the foregoing, please sign and return to
us a counterpart hereof for each of the Company and Advanta and for each of the
Underwriters and each counsel to the parties hereto, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, Advanta, and the Company.
Very truly yours,
ADVANTA BUSINESS RECEIVABLES CORP.
By:_______________________________
Name:
Title:
ADVANTA BANK CORP.
By:_______________________________
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
[_____________________________________]
as Representative of the Underwriters
By: [_____________________________]
By:___________________________
Authorized Representative
Signature Page to Underwriting Agreement
33
SCHEDULE A
Underwriter Class A Class B Class C
----------- ------- ------- -------
Total
------- ------- -------
Purchase Price to Public
(as a percentage of
the principal amount of
each class of Offered Securities)*
Class A: %
Class B: %
Class C: %
