EXHIBIT 8.1 and 23.1
May 16, 2008
To the Persons Listed on
the Appendix hereto
| | Re: | | Advanta Business Card Master Trust
AdvantaSeries Class A(2008-A1) Asset Backed Notes
and Class A(2008-A2) Asset Backed Notes |
Ladies and Gentlemen:
We have acted as special counsel to Advanta Bank Corp. (the “Bank”) and Advanta Business Receivables Corp. (both as described below) and to Advanta Business Card Master Trust, a common law trust organized under the laws of the State of Delaware (the “Issuer” or the “Trust”) as issuer of the asset backed notes described below in connection with the transactions described in (a) the Trust Agreement dated as of August 1, 2000, as amended by Amendment No. 1 to the Trust Agreement, dated as of May 9, 2006 (the “Trust Agreement”), between Advanta Business Receivables Corp., a Nevada corporation, as Transferor (the “Transferor”) and Wilmington Trust Company, a Delaware corporation, as owner trustee (the “Owner Trustee”); (b) the Master Indenture dated as of August 1, 2000, as amended by Amendment No. 1 to the Master Indenture, dated as of May 9, 2006 (the “Master Indenture”), between the Issuer, as issuer, and Deutsche Bank Trust Company Americas (formerly known as Bankers Trust Company), a New York banking corporation, as indenture trustee (the “Indenture Trustee”); (c) the Transfer and Servicing Agreement dated as of August 1, 2000, as amended by Amendment No. 1 to the Transfer and Servicing Agreement, dated as of May 9, 2006 (the “Transfer and Servicing Agreement”), among the Transferor, the Bank, a Utah industrial bank, as servicer (the “Servicer”), and the Issuer, as issuer; (d) the AdvantaSeries Indenture Supplement dated as of November 1, 2004 (the “AdvantaSeries Indenture Supplement”) between the Issuer and the Indenture Trustee; (e) the Class A(2008-A1) Terms Document, dated as of May 16, 2008, between the Issuer and the Indenture Trustee (the “Class A(2008-A1) Terms Document”) and the Class A(2008-A2) Terms Document, dated as of May 16, 2008, between the Issuer and the Indenture Trustee (the “Class A(2008-A2) Terms Document” and, together with the Class A(2008-A1) Terms Document, the “Terms Documents”); (f) the form of Class A(2008-A1) Asset Backed Notes (the “Class A(2008-A1) Notes”) and the form of the Class A(2008-A2) Asset Backed Notes (the “Class A(2008-A2) Notes” and, together with the Class A(2008-A1) Notes, the “Offered Notes” or the “Issued Notes”) to be issued by the Trust; (g) the Receivables Purchase Agreement dated as of August 1, 2000 (the “Receivables Purchase Agreement”)
To the Persons Listed on
the Appendix hereto
May 16, 2008
Page 2
between the Servicer, as seller, and the Transferor, as purchaser, pursuant to which the Servicer has agreed to sell and the Transferor has agreed to purchase certain credit card receivables (the “Receivables”); and (h) the Administration Agreement dated as of August 1, 2000 (the “Administration Agreement”) between the Issuer and the Servicer, as administrator.
The Transferor has conveyed and has agreed to convey from time to time additional Receivables to the Issuer, and the Issuer proposes to issue, on the date hereof, the Offered Notes (which will be offered pursuant to a prospectus dated May 7, 2008 (the “Prospectus”) and a prospectus supplement dated May 9, 2008 (the “Prospectus Supplement”)). Terms used and not defined herein that are defined in the Trust Agreement or in the Master Indenture shall have the meanings provided in the Trust Agreement or the Master Indenture, as the case may be.
We have reviewed originals or copies, identified to our satisfaction, of the Trust Agreement, the Master Indenture, the Transfer and Servicing Agreement, the AdvantaSeries Indenture Supplement, the Terms Documents, the Receivables Purchase Agreement, the Administration Agreement, and such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below (collectively, the “Transaction Documents”). In all examinations made by us in connection with this opinion, we have assumed the genuineness of all signatures, the completeness and authenticity of all records and documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies thereof.
In rendering this opinion, we have assumed that the Issued Notes will be issued in accordance with the Transaction Documents; that the Issuer will be governed by the terms of the Trust Agreement; that the parties thereto (including the Noteholders) will comply with the terms of the Transaction Documents; and that there are no arrangements, understandings or agreements among any of the parties relating to the issuance of the Issued Notes other than those evidenced by the Transaction Documents. We have relied on representations from the Servicer contained in an officer’s certificate, a copy of which is attached hereto, that 100% of the Beneficial Interest in the Trust (as defined in such officer’s certificate) is owned directly by the Servicer or Advanta Business Services Holding Corp., which is a Subchapter C corporation within the meaning of the Internal Revenue Code of 1986, as amended (the “Code”). We have not independently verified the accuracy of these representations.
We have made such examination of law, as we have deemed necessary or appropriate for the purpose of this opinion. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies or by facsimile or other means of electronic transmission, and the authenticity of the originals of such latter documents. We have assumed that each party to the Transaction Documents has been duly organized and is validly existing and in good standing under the laws of the jurisdiction in which it was organized, and that each Transaction Document has been duly authorized, executed and delivered by, and, to the extent applicable, is a valid, binding and enforceable agreement or obligation (as applicable) of, each party thereto.
To the Persons Listed on
the Appendix hereto
May 16, 2008
Page 3
The advice below was not written to be used, is not intended to be used and cannot be used by any taxpayer for purposes of avoiding United States federal income tax penalties that may be imposed. The advice is written to support the promotion or marketing of the transaction addressed in this opinion. Each taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor.
We are providing the foregoing disclaimer to satisfy obligations we have under Circular 230, governing standards of practice before the Internal Revenue Service.
Based upon the foregoing, and subject to the qualifications stated herein, we are of the opinion that, for Federal income tax purposes:
1. Although no transaction closely comparable to that contemplated herein has been the subject of any Treasury regulation, revenue ruling or judicial decision, following the issuance of the Issued Notes, the Issuer will not be classified as an association or as a publicly traded partnership taxable as a corporation for Federal income tax purposes. As a result, we are of the opinion that following the issuance of the Issued Notes, the Issuer will not be subject to Federal income tax.
2. Although no transaction closely comparable to that contemplated herein has been the subject of any Treasury regulation, revenue ruling or judicial decision, the Offered Notes will be characterized as debt for Federal income tax purposes.
3. The issuance of the Issued Notes will not adversely affect the tax characterization as debt of Notes of any outstanding Series, Class or Tranche that were characterized as debt for Federal income tax purposes at the time of their issuance.
4. The issuance of the Issued Notes will not cause or constitute an event in which gain or loss would be recognized by any Noteholder.
You should be aware that this opinion represents conclusions as to the application to the Issuer and the Notes of existing law, regulations, and administrative rules and practices. Our analysis is based on provisions of the Code and the Treasury Regulations promulgated thereunder as in effect on the date hereof and on existing judicial and administrative interpretations thereof. These authorities are subject to change and to differing interpretations, which could apply retroactively. There are no existing regulations under section 385 of the Code defining instruments as equity or indebtedness for Federal income tax purposes. Furthermore, there are no controlling regulations, published rulings, or judicial decisions involving securities with terms substantially the same as the Issued Notes that discuss, for Federal income tax
To the Persons Listed on
the Appendix hereto
May 16, 2008
Page 4
purposes whether the securities constitute equity or debt. In general, whether a transaction constitutes the issuance of indebtedness for Federal income tax purposes is a question of fact, the resolution of which is based primarily upon the economic substance of the instruments and the transaction pursuant to which they are issued rather than the form of the transaction or the manner in which the instruments are labeled. The Internal Revenue Service and the courts have set forth various factors to be taken into account in determining whether or not a transaction constitutes the issuance of indebtedness for Federal income tax purposes, which we have reviewed as they apply to this transaction. Therefore, our opinion regarding the characterization of the Offered Notes as debt for Federal income tax purposes is based upon rulings and judicial decisions under the Code involving situations that we consider to be analogous and an analysis of all of the facts and circumstances surrounding the issuance and sale of the Offered Notes. Our opinion is not binding on the courts or the Internal Revenue Service.
We do not express any opinion, either implicitly or otherwise, on any issues not expressly addressed herein. This opinion letter is based upon the current state of the law and facts as of the date hereof and we hereby expressly disclaim any obligation to advise you of any changes that may occur hereafter with respect to any of the matters addressed herein.
Finally, the Bank and the Transferor have informed us that prior to October 26, 2005, Wolf, Block, Schorr and Solis-Cohen LLP was counsel to the Bank and the Transferor and delivered the Tax Opinions required with respect to issuances prior to that date by the Issuer. We have not been asked to and have not investigated any matters covered by any such Tax Opinions nor reviewed any of the transaction documents relating to such Tax Opinions.
The foregoing opinions are being rendered for the benefit only of the addressees listed on the Appendix attached hereto in connection with the transactions contemplated by the documents referred to above and may not be disclosed to, quoted to or relied upon by any other person or entity or for any other purpose without the express prior written consent of the undersigned. However, each of you (and each of your employees, representatives or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by the documents referred to herein and all materials of any kind (including opinions or other tax analyses) that are provided to you relating to such tax treatment and tax structure.
We hereby consent to the filing of this letter as Exhibit 8.1 to the Registration Statement on Form S-3 (File No. 333-141065) and to the references to this firm under the headings “Prospectus Summary –Tax Status”, “Federal Income Tax Consequences” and “Legal Matters” in the Base Prospectus and “Summary of Terms –Tax Status” and “Legal Matters” in the Final Prospectus Supplement, without implying or admitting that we are “experts” within the meaning of the Securities Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Base Prospectus or the Prospectus Supplement.
Very truly yours,
/s/ McKee Nelson LLP
APPENDIX
| |
| Advanta Business Card Master Trust |
| c/o Wilmington Trust Company |
| Rodney Square North |
| 1100 North Market Street |
| Wilmington, Delaware 19890-0001 |
| |
| Advanta Business Receivables Corp. |
| 2215 B Renaissance Drive, |
| Suite 5 |
| Las Vegas, Nevada 89119 |
| |
| Advanta Bank Corp. |
| 11850 South Election Road |
| Draper, Utah 84020 |
| |
| Deutsche Bank Trust Company Americas, |
| as Indenture Trustee |
60 Wall Street, 26th Floor |
| New York, New York 10005 |
| |
| Greenwich Capital Markets, Inc., |
| as a Representative of the Class A(2008- |
| A1) Underwriters and as a Representative |
| of the Class A(2008-A2) Underwriters |
| 600 Steamboat Road |
| Greenwich, Connecticut 06830 |
| |
| Merrill Lynch, Pierce, Fenner & Smith |
| Incorporated, |
| as a Representative of the Class A(2008- |
| A1) Underwriters and as a Representative |
| of the Class A(2008-A2) Underwriters |
4 World Financial Center, 11th Floor |
| New York, New York 10080 |
| |
| Moody’s Investors Service, Inc. |
| 7 World Trade Center |
250 Greenwich Street – 24th Floor |
| New York, New York 10007 |
| |
| Standard & Poor’s Ratings Services, |
| a division of The McGraw-Hill Companies, Inc. |
| 55 Water Street |
| New York, New York 10041 |
| |
| Wilmington Trust Company, |
| as Owner Trustee |
| Rodney Square North |
| 1100 North Market Street |
| Wilmington, Delaware 19890-0001 |
ADVANTA BANK CORP.
In connection with the opinion that McKee Nelson LLP proposes to render regarding certain federal tax matters in connection with the execution and delivery of the Class A(2008-A1) Terms Document and the Class A(2008-A2) Terms Document, Advanta Bank Corp. (“ABC”) recognizes that McKee Nelson LLP will be relying on this certification as part of the factual basis for its opinion and hereby certifies to you as follows:
| 1. | | One hundred percent of the beneficial interests in the Trust and interests in any securities backed by the Trust other than (a) the Issued Notes and (b) any security for which a tax opinion satisfying the terms of the Transaction Documents has been delivered to the effect that such security constitutes debt for Federal income tax purposes (collectively, the “Beneficial Interest”) is owned directly by ABC, Advanta Business Receivables Corp. or Advanta Business Services Holding Corp. (“ABSHC”), each of which is a Subchapter C corporation within the meaning of the Code. |
| |
| 2. | | ABC will take or cause to be taken such acts or actions as may be necessary to ensure that the Trust complies with the private placement safe harbor from publicly traded partnership status (within the meaning of Section 7704 of the Internal Revenue Code of 1986) set forth in Treasury Regulation Section 1.7704-1(h)(1). To this end, for so long as ABC or ABSHC beneficially owns any of the AdvantaSeries Class D(2004-D1) Notes, Class D(2005-D1) Notes, Class D(2005-D2) Notes, Class D(2006-D1) Notes or Class D(2006-D2) Notes or the Series 1997-A Class C Notes or any of the Series 2007-A Class B Notes, Class C Notes or Class D Notes, such Notes will be beneficially owned at all times by a Subchapter C corporation within the meaning of the Code. |
Capitalized terms that are used but not defined herein shall have the meanings ascribed thereto in the form of opinion of McKee Nelson LLP delivered to us on the date hereof.
| | | | | | | |
| | | ADVANTA BANK CORP. | | |
| | | | | | | |
| | | By:
Name: | | /s/ Michael Coco Michael Coco | | |
| | | Title: | | Vice President and Treasurer | | |
| | | | | | | |
| Dated: May 16, 2008 | | | | | | |
