ADVANTA BUSINESS CARD MASTER
TRUST
AdvantaSeries Class B(2007-B1) Asset Backed
Notes
Deutsche Bank
Securities Inc.
60 Wall Street, 19th Floor
New York, New York, 10005
1.
Introductory . Advanta Business Receivables Corp., a Nevada
corporation (the “Company” ), proposes, subject
to the terms and conditions stated herein, to cause Advanta
Business Card Master Trust, a Delaware common law trust (the
“ Issuer ”), to issue $100,000,000 aggregate
principal amount of Advanta Business Card Master Trust
AdvantaSeries Class B(2007-B1) Asset Backed Notes (the
“ Class B(2007-B1) Notes ” or the
“Offered Notes ”) and $200,000,000 aggregate
principal amount of AdvantaSeries Class A(2007-A1) Asset
Backed Notes (the “ Class A(2007-A1) Notes
”) and $25,000,000 aggregate principal amount of
AdvantaSeries Class D(2007-D1) Asset Backed Notes (the
“ Class D Notes ” and together with the
Class A(2007-A1) Notes and Class B(2007-B1) Notes, the
“ Notes ”). The Issuer is a common law trust
formed pursuant to a Trust Agreement, dated as of August 1,
2000 (the “ Trust Agreement ”) between the
Company and Wilmington Trust Company, as owner trustee (the “
Owner Trustee ”), as amended by Amendment No. 1
to the Trust Agreement, dated as of May 9, 2006, between the
Company and the Owner Trustee. The Notes will be issued pursuant to
a Master Indenture, dated as of August 1, 2000 (the “
Master Indenture ”), between the Issuer and Deutsche
Bank Trust Company Americas, as indenture trustee (the “
Indenture Trustee ”), as amended by Amendment
No. 1 to the Master Indenture, dated as of May 9, 2006,
between the Owner Trustee and the Indenture Trustee, as
supplemented by the AdvantaSeries Indenture Supplement with
respect to the Notes dated as of November 1, 2004 and, with
respect to the Notes, as further supplemented by the
Class B(2007-B1) Terms Document, the Class A(2007-A1)
Terms Document and the Class D(2007-D1) Terms Document, each
dated as of February 21, 2007 (the
AdvantaSeries Indenture Supplement, together with such terms
documents, the “ Indenture Supplement ” and
together with the Master Indenture, the “ Indenture
”).
The assets of the
Issuer will include Receivables and payments thereon in a portfolio
of MasterCard and VISA revolving business purpose credit card
accounts originated by Advanta Bank Corp.
The Receivables
are transferred to the Issuer pursuant to a Transfer and Servicing
Agreement, dated as of August 1, 2000 (the “Transfer
and Servicing Agreement” ), among the Company, Advanta
Bank Corp. ( “Advanta” ), as servicer (in such
capacity, the “Servicer” ), and the Issuer, as
amended by Amendment No. 1 to the Transfer and Servicing
Agreement, dated as of May 9, 2006, among the Company, the
Servicer and the Issuer. The Receivables transferred to the Issuer
by the Company are acquired by the Company from Advanta, pursuant
to a Receivables Purchase Agreement, dated as of August 1,
2000 (the “ Receivables Purchase Agreement ”),
between the Company and Advanta. Advanta granted a security
interest in the Receivables to the Indenture Trustee for the
benefit of the Noteholders pursuant to a letter agreement dated as
of August 1, 2000 (the “ Security Agreement
”), between Advanta and the Indenture Trustee.
Advanta has agreed
to provide notices and perform on behalf of the Issuer certain
other administrative obligations required by the Transfer and
Servicing Agreement, the Master Indenture and each indenture
supplement for each series of notes issued by the Issuer, pursuant
to an Administration Agreement, dated as of August 1, 2000
(the “ Administration Agreement ”), between
Advanta, as administrator (in such capacity, the “
Administrator ”), and the Issuer. The Transfer and
Servicing Agreement, the Receivables Purchase Agreement, the
Indenture, the Trust Agreement, the Security Agreement and the
Administration Agreement are referred to herein, collectively, as
the “ Transaction Documents .”
This Underwriting
Agreement is referred to herein as this “ Agreement
.” To the extent not defined herein, capitalized terms used
herein have the meanings assigned in the Transaction
Documents.
Advanta and the
Company hereby agree with the underwriters for the Offered Notes
listed on Schedule A hereto (the
“Underwriters ”) as follows:
2.
Representations, Warranties and Covenants 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
has prepared and filed with the Securities and Exchange Commission
(the “ Commission ”) in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the
“ Act ”), a shelf registration statement on Form
S-3 (having the registration number 333-137522), including a form
of prospectus, relating to the Offered Notes. The registration
statement as amended has been declared effective by the Commission.
If any post-effective amendment has been filed with respect
thereto, prior to the execution and delivery of this Agreement, the
most recent such amendment has been declared effective by the
Commission. Such registration statement, as amended at the time of
effectiveness, including all material incorporated by reference
therein and
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including all
information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430B
under the Act, is referred to in this Agreement as the “
Registration Statement .” The Company proposes to file
with the Commission pursuant to Rule 424(b) under the Act
(“Rule 424(b)”) a supplement (the “
Prospectus Supplement ”) to the prospectus included in
the Registration Statement (such prospectus, in the form it appears
in the Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b) is
hereinafter referred to as the “ Base Prospectus
”) relating to the Offered Notes and the method of
distribution thereof. The Base Prospectus and the Prospectus
Supplement, together with any amendment thereof or supplement
thereto, is hereinafter referred to as the “
Prospectus .”
(b) Prior to the
time the first contract of sale for the Offered Notes was entered
into (the “ Time of Sale ”), the Company had
prepared a preliminary Prospectus, dated February 12, 2007
(subject to completion). As used herein, “Preliminary
Prospectus” means, with respect to any date or time referred
to herein, the most recent preliminary Prospectus (as amended or
supplemented, if applicable), which has been prepared and delivered
by the Company to the Underwriters in accordance to the provisions
hereof.
(c) Subject to the
terms and conditions herein set forth, Advanta agrees to cause the
Company to sell and deliver the Offered Notes to the several
Underwriters as hereinafter provided, and each Underwriter, upon
the basis of the representations, warranties and covenants herein
contained, but subject to the conditions hereinafter stated, agrees
to purchase, severally and not jointly, from the Company the
respective principal amount of the Class B(2007-B1) Notes set
forth opposite such Underwriter’s name in Schedule A to
this Agreement. The Offered Notes are to be purchased by the
Underwriters at the purchase price(s) set forth in Schedule A
to this Agreement.
(d) The Company
and Advanta understand that the Underwriters intend (i) to
make a public offering of their respective portions of the Offered
Notes as soon after the Registration Statement and this Agreement
have become effective as in the judgment of the Representative is
advisable and (ii) initially to offer the Offered Notes upon
the terms set forth in the Prospectus.
(e) No stop order
suspending the effectiveness or use of the Registration Statement
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 and on the effective date of
the Registration Statement, the Registration Statement and the
Prospectus conformed in all respects to the requirements of the Act
and the rules and regulations of the Commission under the Act (the
“ Rules and Regulations ”), and did not include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading, and on the date of this
Agreement, the Registration Statement and the Prospectus conform,
and at the time of filing of the Prospectus pursuant to Rule 424(b)
such documents will conform in all respects to the requirements of
the Act and the Rules and Regulations, and on the Closing Date the
Registration Statement and the Prospectus
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will conform in
all respects to the requirements of the Act and the Rules and
Regulations and the Trust Indenture Act, and neither of such
documents on the date of this Agreement and on the Closing Date
contain or will contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however , that this representation and warranty
shall not apply to any statements or omissions made in reliance
upon and in conformity with written information furnished to the
Company by any Underwriter specifically for use therein, it being
understood and agreed that the only information provided by the
Underwriters for inclusion in the Registration Statement, the
Preliminary Prospectus or the Prospectus is (i) set forth on
the cover page of the final Prospectus Supplement under the column
Class B(2007-B1) Notes on the line across from “
Price to Public ,” (ii) in the table listing the
Underwriters and the Principal Amount of Class B(2007-B1) Notes
under the heading “ Underwriting ” in the final
Prospectus Supplement, (iii) in the fourth paragraph under the
heading “ Underwriting ” in the final Prospectus
Supplement, and (iv) in the sixth paragraph under the heading
“ Underwriting ” in the Preliminary Prospectus
Supplement and the final Prospectus Supplement (collectively, the
information in (i), (ii), (iii) and (iv), the “
Underwriters’ Information ”). In addition, the
statements in “Description of the Notes,” “The
Indenture” and “ Description of the Receivables
Purchase Agreement ” in the Base Prospectus and “
Description of Series and Tranche Provisions ” in the
Preliminary Prospectus Supplement and the final Prospectus
Supplement, to the extent they constitute a summary of the Notes or
the Transaction Documents, in each case, constitute a fair and
accurate summary thereof;
(f) The
Preliminary Prospectus at the Time of Sale did not and at the
Closing Date will not, contain any 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, not misleading (it being understood that no
representation or warranty is made with respect to the omission of
pricing and price-dependent information, which information shall of
necessity appear only in the final Prospectus); provided,
however , that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein, it being understood and
agreed that the only information provided by the Underwriters for
inclusion in the Preliminary Prospectus is the Underwriters’
Information, to the extent such information is included in the
Preliminary Prospectus;
(g) The
information contained in Annex II attached to the Preliminary
Prospectus and attached to the Prospectus (the “ Static
Pool Information ”)—of which information for
periods before January 1, 2006, and only that for periods
before January 1, 2006, is deemed not to be part of the
Preliminary Prospectus, the Prospectus or the Registration
Statement—at the Time of Sale did not and at the Closing Date
will not, when such information is considered together with the
Preliminary Prospectus or the Prospectus, as applicable, contain
any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading;
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(h) Other than the
Preliminary Prospectus and the Prospectus, neither the Company nor
Advanta (including any agents or representatives other than the
Underwriters in their capacity as such) has made, used, prepared,
authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act)
that constitutes an offer to sell or solicitation of an offer to
buy the Offered Notes;
(i) Since the
effective date of the Registration Statement, there has not been
any change, or any development involving a prospective change, in
or affecting the Company or Advanta or any of their respective
subsidiaries (other than as contemplated in the Registration
Statement or the Preliminary Prospectus) which would be expected to
have a material adverse effect on either (1) the ability of
such person to consummate the transactions contemplated by, or to
perform its respective obligations under, this Agreement or any of
the Transaction Documents to which it is a party or (2) the
Accounts or related Receivables considered in the
aggregate;
(j) The Company
has been duly formed and is validly existing as a corporation in
good standing under the laws of Nevada; Advanta has been duly
incorporated and is validly existing as an industrial bank in good
standing under the laws of Utah; each of the Company and Advanta
has the power and authority (corporate and/or other) to own its
properties and conduct its business to the extent described in the
Preliminary Prospectus and to perform its obligations under this
Agreement and the Transaction Documents to which it is a party; and
each of the Company and Advanta has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns
or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction;
(k) As of the Time
of Delivery (as defined in Section 3), each consent, approval,
authorization or order of, or filing with, any court or
governmental agency or body that is required to be obtained or made
by the Company, Advanta, the Issuer or their subsidiaries for the
consummation of the transactions contemplated by this Agreement and
the Transaction Documents shall have been obtained or made, except
for such consents, approvals, authorizations, registrations or
qualifications as may be required under Blue Sky laws;
(l) Any taxes,
fees and other governmental charges that are assessed and due from
the Company, Advanta, or the Issuer in connection with the issuance
of the Notes, the execution, delivery and issuance of this
Agreement and each Transaction Document shall have been paid or
will be paid at or prior to the Time of Delivery to the extent then
due;
(m) 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,
5
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;
(n) The Offered
Notes have been duly and validly authorized by the Company, the
direction by the Issuer to the Indenture Trustee to authenticate
the Offered Notes has been duly authorized by the Company and, when
issued pursuant to the Indenture and delivered pursuant to this
Agreement, the Offered Notes will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Issuer, enforceable in
accordance with their terms, and entitled to the benefits provided
by the Indenture under which they are to be issued, which Indenture
will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and
duly qualified under the Trust Indenture Act and, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, the Indenture will constitute a valid and legally binding
instrument of the Issuer, enforceable in accordance with its terms,
except as enforceability may be limited by (i) bankruptcy,
insolvency, liquidation, receivership, moratorium, reorganization
or other similar laws affecting the enforcement of the rights of
creditors and (ii) general principles of equity, whether
enforcement is sought in a proceeding in equity or at law; assuming
the due authorization, execution and delivery thereof by the other
parties thereto, each of the other Transaction Documents to which
it is a party will constitute a valid and legally binding
obligation of the Company and Advanta, as applicable, enforceable
in accordance with its terms, except as enforceability may be
limited by (i) bankruptcy, insolvency, liquidation,
receivership, moratorium, reorganization or other similar laws
affecting the enforcement of the rights of creditors and
(ii) general principles of equity, whether enforcement is
sought in a proceeding in equity or at law; the execution, delivery
and performance by each of the Company and Advanta of the
Transaction Documents to which it is a party and the consummation
of the transactions contemplated thereby have been duly and validly
authorized by all necessary action and proceedings required of it;
and the Offered Notes, the Indenture, the Receivables Purchase
Agreement, the Transfer and Servicing Agreement and the other
Transaction Documents will conform in all material respects to the
descriptions thereof in the Preliminary Prospectus and the
Prospectus;
(o) The issue and
sale of the Offered Notes by the Issuer as contemplated hereby and
the compliance by the Company and Advanta with all of the
provisions of this Agreement, and the compliance by each of the
Company and Advanta with all of the provisions of all of the
Transaction Documents to which it is a party and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company and Advanta is a party
or by which the Company or Advanta or any of their subsidiaries is
bound or to which any of the property or assets of the Company or
Advanta is subject, nor will such action result in any violation of
the provisions of the Articles of Incorporation or By-laws of the
Company or Advanta, as applicable, or any statute or any order,
rule or regulation of any court or governmental
6
agency or body
having jurisdiction over the Company or Advanta or any of their
properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required to be obtained by the
Company or Advanta for the issue and sale of the Offered Notes by
the Issuer, the consummation by the Company or Advanta of the
transactions contemplated by this Agreement or the Transaction
Documents, except the registration under the Act of the Offered
Notes and the qualification of the Indenture under the Trust
Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state or
foreign securities or Blue Sky laws in connection with the purchase
and distribution of the Offered Notes by the
Underwriters;
(p) There are no
legal or governmental proceedings to which the Company or Advanta
is a party or of which any property of the Company or Advanta is
the subject (i) asserting the invalidity of this Agreement,
the Offered Notes or any other Transaction Documents, (ii) seeking
to prevent the issuance of the Offered Notes or the consummation of
any of the transactions contemplated by this Agreement or any
Transaction Document, (iii) which is reasonably expected to
materially and adversely affect the performance by the Company or
Advanta, of their respective obligations under, or the validity or
enforceability of, this Agreement, the Offered Notes or the other
Transaction Documents, as applicable, (iv) seeking to affect
adversely the federal income tax attributes of the Offered Notes
described in the Preliminary Prospectus and in the Prospectus or
(v) which is reasonably expected to, individually or in the
aggregate, have a material adverse effect on the Accounts, the
Receivables, the Company, Advanta or the Issuer; and, to the best
of the Company’s and Advanta’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(q) Neither the
Company nor Advanta is in violation of its respective Articles of
Incorporation or By-laws, and neither the Company nor Advanta is in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(r) None of the
Company, Advanta and the Issuer is and, after giving effect to the
offering and sale of the Offered Notes and the application of
proceeds therefrom and other transactions contemplated hereby, will
be, an “investment company” or an entity
“controlled” by an “investment company”, as
such terms are defined in the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”);
(s) The
Receivables had an aggregate outstanding balance determined as of
the close of business on December 31, 2006 in the amount set
forth in the Preliminary Prospectus Supplement;
(t) No selection
procedures materially adverse to the holders of the Offered Notes
were utilized in selecting those Receivables transferred by Advanta
to the Company from those Receivables available
therefor;
7
(u) The
Receivables have been acquired and will be acquired by the Company
under the Receivables Purchase Agreement and by the Issuer under
the Transfer and Servicing Agreement, the Company and the Issuer,
respectively, will acquire the Receivables, free and clear of any
lien, charge or encumbrance (other than as contemplated by the
Transaction Documents), but subject to the rights of the related
obligors;
(v) As of the date
hereof and as of the Time of Delivery, neither Advanta nor the
Company is obligated to repurchase Receivables in the Initial
Designated Accounts or in any Additional Designated Accounts (each
as defined in the Transfer and Servicing Agreement) constituting a
material portion of the aggregate Receivables in the Accounts (as
defined in the Transfer and Servicing Agreement) existing as of the
Time of Delivery;
(w) As of the date
hereof, the Company is wholly-owned by Advanta and the trust
beneficial interest of the Issuer is wholly-owned by the
Company;
(x) In accordance
with Generally Accepted Accounting Principles in the United States,
as currently in effect, each party to the Receivables Purchase
Agreement and the Transfer and Servicing Agreement will treat the
transactions contemplated by the Receivables Purchase Agreement and
the Transfer and Servicing Agreement as absolute assignments of the
Receivables to the Company and to the Issuer,
respectively;
(y) 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, 2005 and the
nine-month period ended September 30, 2006, as filed with the
SEC. Except as set forth in or contemplated in the Registration
Statement and the Preliminary Prospectus or as described by Advanta
Corp. in SEC filings or press releases of general distribution,
copies of which have been delivered to you, there has been no
material adverse change in the condition (financial or otherwise)
of Advanta Corp., the Company or Advanta since September 30,
2006;
(z) 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;
(aa) Any taxes,
fees and other governmental charges arising from the execution and
delivery by Advanta, the Company or the Issuer of this Agreement,
the Receivables Purchase Agreement, the Transfer and Servicing
Agreement and the Indenture and in connection with the execution,
delivery and issuance of the Offered Notes and with the transfer of
the Receivables have been paid or will be paid by the Company prior
to the Closing Date;
8
(bb) The Issuer
was not, on the date on which the first bona fide offer of the
Offered Notes was made, an “ineligible issuer” as
defined in Rule 405 under the Act;
(cc) KPMG LLP is
an independent public accountant with respect to Advanta and the
Company within the meaning of the Act and the rules and regulations
promulgated thereunder; and
(dd) The Indenture
has been duly qualified under the TIA and complies as to form with
the TIA and the rules and regulations of the Commission
thereunder.
All
representations, warranties and agreements made herein shall be
deemed made as of the date hereof and as of the Time of Delivery;
provided, however, that to the extent any representation or
warranty relates to a specific date, such representation and
warranty shall be deemed to relate only to such date.
3. Sale
and Delivery to the Underwriters; Closing . Subject to
the terms and conditions herein set forth, the Company agrees to
cause the Issuer to issue the Offered Notes and agrees to sell the
Offered Notes on February 21, 2007 (the “ Closing
Date ”) to each of the Underwriters, severally and not
jointly, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, the principal amount of the
Offered Notes set forth opposite the name of such Underwriter, and
at the purchase price set forth, in Schedule A
hereto.
The Offered Notes
shall be represented by one or more definitive global certificates
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (“ DTC ”). The Company
will cause the Issuer to transfer the Offered Notes in book-entry
form to Deutsche Bank Securities Inc. (the “
Representative ”), for the account of each
Underwriter, against payment by the Representative (by or on behalf
of each such Underwriter or otherwise) of the purchase price
therefor by wire transfer payable to the order of the Company in
federal (same day) funds (to such account or accounts as the
Company shall designate), by causing DTC to credit the Offered
Notes to the account of the Representative at DTC. The time and
date of such delivery and payment shall be 10:00 a.m., New
York City time, the Closing Date 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 will
be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof and the Offered Notes will
be delivered at the offices of McKee Nelson LLP, One Battery Park
Plaza, 34th Floor, New York, New York 10004 (the “ Closing
Location ”), all at the Time of Delivery. Final drafts of
the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto on the New York
Business Day preceding the Time of Delivery. For the purposes of
this Section 3, “ New York Business Day ”
shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are
authorized or obligated by law or executive order to close. The
Company will cause the global certificates referred to above to be
made available to the Representative for checking at least 24 hours
prior to the Time of Delivery at the Closing Location.
9
4.
Offering by Underwriters .
(a) It
is understood that upon the authorization by the Representative of
the release of the Offered Notes, the Underwriters propose and
agree to offer the Offered Notes for sale upon the terms and
conditions set forth in the Preliminary 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 Notes within the United
States or induce or attempt to induce the purchase of or sale of
the Offered Notes within the United States, except that such
Underwriter shall be permitted to make sales to the other
Underwriters or to their United States affiliates; provided that
such sales are made in compliance with an exemption of certain
foreign brokers or dealers under Rule 15a-6 under the Exchange
Act, and in conformity with the Rules of Fair Practice of the NASD
as such rules apply to non-NASD brokers or dealers.
(c) Each
Underwriter further represents that:
(i)
it has complied and will comply with all applicable provisions of
the Financial Services and Markets Act 2000 (
“FSMA” ) with respect to anything done by it in
relation to the Offered Notes in, from or otherwise involving the
United Kingdom; and
(ii)
it has only communicated or caused to be communicated and it will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the FSMA) received by it in connection with the
issue or sale of any Offered Notes in circumstances in which
Section 21(1) of the FSMA does not apply to the
issuer.
(d) In
relation to each Member State of the European Economic Area (which
is composed of the European Union, Norway and Liechtenstein) which
has implemented the Prospectus Directive (each, a
“Relevant Member State” ), each Underwriter has
represented and agreed that with effect from and including the date
on which the Prospectus Directive is implemented in that Relevant
Member State (the “Relevant Implementation Date”
) it has not made and will not make an offer of the Offered Notes
to the public in that Relevant Member State prior to the
publication of a prospectus in relation to the Offered Notes which
has been approved by the competent authority in that Relevant
Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in the
Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the
Relevant Implementation Date, make an offer of Offered Notes to the
public in that Relevant Member State at any time:
(i)
to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
10
(ii)
to any legal entity which has two or more of (1) an average of
at least 250 employees during the last financial year; (2) a
total balance sheet of more than € 43,000,000 and (3) an annual net turnover
of more than € 50,000,000, as shown in its last annual or
consolidated accounts; or
(iii)
in any other circumstances which do not require the publication by
the Company of a prospectus pursuant to Article 3 of the
Prospectus Directive.
For the
purposes of the above paragraph, the expression an “offer of
Offered Notes to the public” in relation to any Offered Notes
in any Relevant Member State means the communication in any form
and by any means of sufficient information on the terms of the
offer and the Offered Notes to be offered so as to enable an
investor to decide to purchase or subscribe the Offered Notes in
that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member
State.
(e) Each
Underwriter severally represents and agrees (i) that it did
not enter into any contract of sale for any Offered Notes prior to
the time it received the Preliminary Prospectus from the Company
and (ii) that it will, at any time that such Underwriter is
acting as an “underwriter” (as defined in
Section 2(a)(11) of the Act) with respect to the Offered
Notes, deliver to each investor to whom Offered Notes are sold by
it during the period prior to the filing of the Prospectus at or
prior to the applicable time of any such contract of sale with
respect to such investor, the Preliminary Prospectus.
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 the Prospectus which shall be reasonably
disapproved by the Representative promptly after reasonable notice
thereof; will advise the Representative, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
furnish the Representative with copies thereof, will file promptly
all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Agreement and for so long as the
delivery of a prospectus is required in connection with the
offering or sale of the Offered Notes; will 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 Preliminary Prospectus or
the Prospectus, of the suspension of the qualification of the
Offered Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or
supplementing of the Registration Statement, Preliminary Prospectus
or the Prospectus or for additional
11
information;
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of the Preliminary Prospectus or
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 Notes
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 Notes, provided that in connection therewith neither
the Company nor the Issuer shall be required to qualify as a
foreign corporation or entity or to file a general consent to
service of process in any state.
(c) If
at any time when a prospectus relating to the Offered Notes is
required to be delivered under the Act (or required to be delivered
but for Rule 172 under the Act), any event occurs as a result
of which the Preliminary Prospectus or the Prospectus, as then
amended or supplemented, would include an untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any
time to amend the Preliminary Prospectus or the Prospectus to
comply with the Act, the Company promptly will prepare and file
with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such
compliance and will furnish the Representative with copies thereof.
Neither the Underwriters’ consent to, nor the
Underwriters’ delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in
Section 7.
(d) As
soon as practicable, the Company will make generally available to
Noteholders and to the Underwriters an earnings statement or
statements of the Company which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act. The
Company will comply with the periodic reporting requirements under
the Exchange Act.
(e) During
the period beginning on the date hereof and continuing to and
including the Business Day following the Closing Date, neither the
Company nor Advanta will offer, sell, contract to sell or otherwise
dispose of any credit card backed securities with the same term and
other characteristics identical to the Offered Notes without the
prior written consent of the Representative.
(f) So
long as any Offered Notes shall be outstanding, Advanta will
deliver or cause to be delivered to the Representative the annual
statements as to compliance to be delivered by Advanta to the Owner
Trustee, the Indenture Trustee and each Rating Agency pursuant to
Section 3.05 of the Transfer and Servicing Agreement and the
independent registered public accountant’s agreed-upon
procedures report furnished to the Owner Trustee, the Indenture
Trustee, the Servicer and each Rating Agency pursuant to
Section 3.06 of the Transfer and Servicing Agreement in each
case as soon as such statement is furnished to the Owner Trustee,
the Indenture Trustee or the Rating Agencies, as the case may
be.
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(g) The
Company and Advanta will cooperate with the Underwriters and use
their best efforts to permit the Offered Notes to be eligible for
clearance and settlement through DTC.
(h) The
Company will furnish such information, execute such instruments and
take such actions, if any, as the Representative may reasonably
request in connection with any filing with the NASD relating to the
Offered Notes should the Representative determine that such filing
is required or appropriate.
(i) So
long as any of the Offered Notes 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
Notes or filed with the Commission pursuant to the Exchange Act or
any order of the Commission thereunder, (ii) all monthly
reports required to be delivered to or filed with the Indenture
Trustee, (iii) all notices or requests to or from the Rating
Agencies with respect to the Offered Notes that have been delivered
to or received by the Company, (iv) any order of the
Commission under the Act or the Exchange Act applicable to the
Issuer or to the Company, or pursuant to a “no-action”
letter obtained from the staff of the Commission by the Company and
affecting the Issuer or the Company and (v) from time to time,
any other publicly available information concerning the Company
filed with any government or regulatory authority, as the
Representative may reasonably request.
(j) At
the Time of Delivery, the electronic ledger used by Advanta as a
master record of the Receivables conveyed by Advanta to the Company
and, in turn, conveyed by the Company to the Issuer, shall be
marked in such a manner as shall clearly indicate the
Issuer’s absolute ownership of such Receivables, and from and
after the Time of Delivery, neither the Company nor Advanta nor any
of their affiliates shall take any action inconsistent with the
Issuer’s ownership of such Receivables, other than as
permitted by the Transaction Documents.
(k) To
the extent, if any, that the rating provided with respect to the
Offered Notes by any of the Rating Agencies that initially rate the
Offered Notes is conditional upon the furnishing of documents or
the taking of any other reasonable actions by the Company or
Advanta, the Company and Advanta will use their best efforts to
furnish, as soon as practicable, such documents and take (or cause
the taking of) any such other actions.
(l) Each
of the Company and Advanta will use the net proceeds received by it
from the issuance of the Offered Notes in the manner specified in
the Preliminary Prospectus Supplement and the Base Prospectus under
the caption “ Use of Proceeds .”
(m) The
Company will file with the Commission within four days of the
issuance of the Offered Notes a current report on Form 8-K setting
forth specific information concerning the Offered Notes and the
Receivables to the extent that such information is not set forth in
the Prospectus.
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6.
Underwriter Permitted Written Communications .
(a) Each
of the Underwriters severally, and not jointly, covenants and
agrees with the Company and Advanta that other than the Preliminary
Prospectus and the Prospectus, without Advanta’s prior
written approval, such Underwriter has not made, used, prepared,
authorized, approved or referred to and will not make, use,
prepare, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act)
that constitutes an offer to sell or the solicitation of an offer
to buy the Offered Notes, including, but not limited to any
“ABS informational and computational materials” as
defined in Item 1101(a) of Regulation AB under the Act;
provided, however , that each Underwriter may prepare and
convey one or more “written communications” (as defined
in Rule 405 under the Act) containing no more than the
following: information contemplated by Rule 134 under the Act
and included or to be included in the Preliminary Prospectus, plus
information included in a column or other entry showing the status
of the subscriptions for the Offered Notes and/or expected pricing
parameters of the Offered Notes and information customarily
included in confirmations of sales of securities and notices of
allocations. Each written communicat
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