Exhibit 1.2
EXECUTION COPY
ADVANTA BUSINESS CARD MASTER TRUST
AdvantaSeries Class A(2008-A2) Asset Backed Notes
UNDERWRITING AGREEMENT
May 9, 2008
Greenwich Capital Markets, Inc.
600 Steamboat Road
Greenwich, CT 06830
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center, 11th Floor
New York, New York 10080
Ladies
and Gentlemen:
1. Introductory .
Advanta Business Receivables Corp., a Nevada corporation (the
“Company" ), proposes, subject to the terms and
conditions stated herein, to cause Advanta Business Card Master
Trust, a Delaware common law trust (the “ Issuer
”), to issue $125,000,000 aggregate principal amount of
Advanta Business Card Master Trust
AdvantaSeries Class A(2008-A2) Asset Backed Notes (the
“ Class A(2008-A2) Notes ” or the
“Offered Notes ”) and $122,000,000 aggregate
principal amount of AdvantaSeries Class A(2008-A1) (the
“ Class A(2008-A1) Notes ” and together
with the Class A(2008-A2) 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 A(2008-A1) Terms Document
and the Class A(2008-A2) Terms Document, each dated as of
May 16, 2008 (the AdvantaSeries Indenture Supplement,
together with such terms document, 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 Class A(2008-A2) 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 333-141065), 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
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the time of
effectiveness, including all material incorporated by reference
therein and 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 May 7, 2008 (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 A(2008-A2) 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 Representatives 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 A(2008-A2) Notes on the line across from “
Price to Public ,” (ii) in the table listing the
Underwriters and the Principal Amount of Class A(2008-A2)
Notes under the heading “ Underwriting ” in the
final Prospectus Supplement, (iii) in the fifth paragraph
under the heading “ Underwriting ” in the final
Prospectus Supplement, and (iv) in the tenth 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 at the Internet
website at www.advanta.com/staticpool and 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,
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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
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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
March 31, 2008 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;
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(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, 2007, 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 December 31, 2007;
(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;
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(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
May 16, 2008 (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 Greenwich Capital Markets, Inc. and Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the “ Representatives
”), for the account of each Underwriter, against payment by
the Representatives (by or on behalf of 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 Representatives
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 Representatives 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 Representatives for checking at least 24
hours prior to the Time of Delivery at the Closing Location.
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4. Offering by the
Underwriters .
(a) It
is understood that upon the authorization by the Representatives 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;
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(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
Representatives (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 Representatives promptly after reasonable notice
thereof; will advise the Representatives, 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 Representatives 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
Representatives, 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
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additional 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
Representatives may reasonably request to qualify the Offered Notes
for offering and sale under the securities laws of such states as
the Representatives 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 Representatives 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 Representatives.
(f) So
long as any Offered Notes shall be outstanding, Advanta will
deliver or cause to be delivered to the Representatives 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 Representatives may reasonably
request in connection with any filing with the NASD relating to the
Offered Notes should the Representatives 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 Representatives 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
Representatives 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 communication described in the preceding
sentence is an “Underwriter Permitted Written
Communication.” Each of t
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