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EXHIBIT 4.5
WILMINGTON TRUST COMPANY, AS OWNER TRUSTEE OF
ADVANTA BUSINESS CARD MASTER TRUST
Issuer
and
ADVANTA BANK CORP.
Administrator
ADMINISTRATION AGREEMENT
Dated as of August 1, 2000
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TABLE OF CONTENTS
PAGE
1. Duties of Administrator......................................................................... 2
2. Records......................................................................................... 6
3. Compensation.................................................................................... 6
4. Additional Information to be Furnished to Issuer................................................ 7
5. Independence of Administrator................................................................... 7
6. No Joint Venture................................................................................ 7
7. Other Activities of Administrator............................................................... 7
8. Term of Agreement; Resignation and Removal of Administrator..................................... 7
9. Action upon Termination, Resignation or Removal................................................. 8
10. Notices......................................................................................... 8
11. Amendments...................................................................................... 9
12. Successors and Assigns......................................................................... 10
13. GOVERNING LAW.................................................................................. 10
14. Headings....................................................................................... 10
15. Counterparts................................................................................... 10
16. Severability................................................................................... 11
17. Not Applicable to ABC in Other Capacities...................................................... 11
18. Limitation of Liability of Owner Trustee....................................................... 11
19. Third-Party Beneficiary........................................................................ 11
20. Nonpetition Covenants.......................................................................... 11
21. Successor Administrator........................................................................ 11
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ADMINISTRATION AGREEMENT, dated as of August 1, 2000 (the
"Administration Agreement"), between WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as owner trustee (the "Owner Trustee") of ADVANTA BUSINESS
CARD MASTER TRUST, a common law trust organized and existing under the laws of
the State of Delaware (herein, the "Issuer"), and ADVANTA BANK CORP., a Utah
industrial loan corporation ("ABC"), as administrator (herein, the
"Administrator").
W I T N E S S E T H :
WHEREAS, the Issuer has entered into a Master Indenture, dated as of
August 1, 2000 (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Indenture"), between the Issuer and
Bankers Trust Company, a New York banking corporation, as indenture trustee (the
"Indenture Trustee") to provide for the issuance of its asset backed notes (the
"Notes");
WHEREAS, the Issuer and the Owner Trustee have entered, and from time
to time in the future may enter, into certain agreements in connection with the
issuance of the Notes and of the beneficial ownership interest in the Issuer,
including, without limitation, (i) the Transfer and Servicing Agreement, dated
as of August 1, 2000 (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Transfer and Servicing Agreement"),
among Advanta Business Receivables Corp., as Transferor (the "Transferor"), ABC,
as Servicer (in such capacity, the "Servicer"), and the Issuer, (ii) the Trust
Agreement, dated as of August 1, 2000 (as amended, modified or supplemented from
time to time in accordance with the provisions thereof, the "Trust Agreement"),
(iii) one or more Letters of Representations (the "Letters of Representations"),
among the Issuer, the Indenture Trustee, and The Depository Trust Company, (iv)
one or more Indenture Supplements (as defined in the Indenture) and (v) the
Indenture (the Transfer and Servicing Agreement, the Letters of Representations,
the Trust Agreement, the Indenture and the Indenture Supplements, together with
any other agreements entered into by the Issuer or the Owner Trustee from time
to time in connection with the Notes and the beneficial ownership interest in
the Issuer, being hereinafter referred to collectively as the "Related
Agreements") (capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in the Transfer and Servicing Agreement, or
if not defined therein, in the Indenture or the Trust Agreement);
WHEREAS, pursuant to the Related Agreements, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (a) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "Collateral")
and (b) the beneficial ownership interest in the Issuer (the holder of such
interest being referred to herein as the "Owner");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Related Agreements as the
Issuer and the Owner Trustee may from time to time request;
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WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. Duties of Administrator.
(a) Duties with Respect to the Related Agreements.
The Administrator shall consult with the Owner Trustee regarding the
duties of the Issuer and the Owner Trustee under the Related Agreements. The
Administrator shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the Issuer's or the Owner
Trustee's duties under the Related Agreements. The Administrator shall prepare
for execution by the Issuer or the Owner Trustee or shall cause the preparation
by other appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to any Related Agreement.
In furtherance of the foregoing, the Administrator shall take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to take pursuant
to the Indenture including, without limitation, such of the foregoing as are
required with respect to the following matters under the Indenture (references
are to sections of the Indenture):
(i) the preparation of or obtaining of the documents and
instruments required for authentication of the Notes, if any, and delivery of
the same to the Indenture Trustee (Section 2.03);
(ii) the duty to cause the Note Register to be kept, to
appoint a successor Transfer Agent and Registrar, if necessary, and to give the
Indenture Trustee notice of any appointment of a new Transfer Agent and
Registrar and the location, or change in location, of the Transfer Agent and
Registrar and Note Register (Section 2.05);
(iii) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
collateral (Sections 2.11 and 8.09);
(iv) the duty to direct the Indenture Trustee to deposit with
any Paying Agent the sums specified in the Indenture and the preparation of an
Issuer Order directing the investment of such funds in Eligible Investments
(3.03);
(v) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
(vi) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.03);
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(vii) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of the
Indenture, the Notes, the Collateral and each other related instrument and
agreement (Section 3.04);
(viii) the preparation of all supplements, amendments,
financing statements, continuation statements, if any, instruments of further
assurance and other instruments necessary to protect the Collateral (Section
3.05);
(ix) the obtaining of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel as to the Collateral
(Section 3.06);
(x) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted to perform
its duties under the Indenture (Section 3.07(b));
(xi) the delivery of notice to the Indenture Trustee of the
occurrence of any Servicer Default of which the Issuer has knowledge and the
action, if any, the Issuer is taking in connection with such default (Section
3.07(d));
(xii) the delivery to the Indenture Trustee, within 120 days
after the end of each fiscal year of the Issuer of an Officer's Certificate with
respect to various matters relating to compliance with the Indenture (Section
3.09);
(xiii) the preparation and obtaining of documents,
certificates, opinions and instruments required in connection with the
consolidation or merger by the Issuer with or into any other Person or the sale
of the Issuer's assets substantially as an entirety to any Person (Section
3.10);
(xiv) the delivery of notice to the Indenture Trustee and the
Rating Agencies of (1) each Event of Default, (2) each default by the Servicer
or the Transferor under the Transfer and Servicing Agreement and (3) each
default by a Seller under a Receivables Purchase Agreement (Section 3.19);
(xv) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(xvi) the removal of the Indenture Trustee, if necessary and
in compliance with the Indenture, and the appointment of a successor (Section
6.08);
(xvii) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal of
any co-trustee or separate trustee (Section 6.10);
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(xviii) the furnishing to the Indenture Trustee of the names
and addresses of Noteholders after receipt of a written request therefor from
the Indenture Trustee (Section 7.01);
(xix) the preparation of various reports to be filed with the
Indenture Trustee and the Commission, as applicable (Section 7.03);
(xx) notifying the Indenture Trustee if and when the Notes are
listed on any stock exchange (Section 7.04);
(xxi) the opening of one or more accounts in the Trust's name
or on behalf of the Trust (Section 8.03);
(xxii) the preparation of an Issuer Order or Issuer Request
and Officer's Certificate and the obtaining of an Opinion of Counsel and
Independent Certificates, if necessary, for the release of the Collateral
(Sections 8.09 and 8.10);
(xxiii) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to such supplemental
indentures (Sections 10.01, 10.02 and 10.03);
(xxiv) the execution of new Notes conforming to any
supplemental indenture (Section 10.06);
(xxv) the preparation and delivery of all Officers'
Certificates and the obtaining of Opinions of Counsel and Independent
Certificates, if necessary, with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture (Section 12.01(a));
(xxvi) the preparation and delivery of Officers' Certificates
and the obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 12.01(b));
(xxvii) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment and notice
provisions (Section 12.06);
(xxviii) compliance with the provisions of the Transfer and
Servicing Agreement applicable to the Issuer; and
(xxix) compliance with any reasonable directive of the
Indenture Trustee with respect to the exercise of any remedy if an Event of
Default shall have occurred and be continuing with respect to any Series and the
Notes of such Series shall have been accelerated pursuant to Section 5.03 of the
Indenture.
(b) Additional Duties.
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(i) In addition to the duties of the Administrator set forth
above, but subject to Section 1(c)(ii), the Administrator shall perform all
duties and obligations of the Issuer under the Related Agreements and shall
perform such calculations and shall prepare for execution by the Issuer and
shall cause the preparation by other appropriate persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Related Agreements, and at the request of the Issuer shall take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to take pursuant
to the Related Agreements. Subject to Section 1(c)(ii) and 5 of this Agreement,
and in accordance with the directions of the Issuer, the Administrator shall
administer, perform or supervise the performance of such other activities in
connection with the Collateral (including the Related Agreements) as are not
covered by any of the foregoing provisions and as are expressly requested by the
Owner Trustee and are reasonably within the capability of the Administrator.
(ii) The Administrator shall perform the duties of the
Transferor specified in Section 9.02 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Owner Trustee,
and any other duties expressly required to be performed by the Transferor or the
Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be in accordance with any
directions received from the Issuer or the Owner Trustee and shall be, in the
Administrator's opinion, no less favorable to the Issuer than would be available
from unaffiliated parties.
(iv) It is the intention of the parties hereto that the
Administrator shall, and the Administrator hereby agrees to, prepare, file and
deliver on behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer to
prepare, file or deliver pursuant to the Related Documents. In furtherance
thereof, the Owner Trustee shall, on behalf of the Issuer, execute and deliver
to the Administrator and its agents, and to each successor Administrator
appointed pursuant to the terms hereof, one or more powers of attorney
substantially in the form of Exhibit A hereto, appointing the Administrator the
attorney-in-fact of the Issuer for the purpose of executing on behalf of the
Issuer all such documents, reports, filings, instruments, certificates and
opinions.
(v) The Administrator shall indemnify, defend and hold
harmless the Owner Trustee and its successors, assigns, directors, officers,
agents, employees and servants from and against any and all Expenses (as defined
in the Trust Agreement), subject to the terms of Section 7.02 of the Trust
Agreement.
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(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Owner Trustee of the proposed action and
the Owner Trustee shall not have withheld consent or provided an alternative
direction. For the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or
lawsuit brought by or against the Issuer (other than
in connection with the collection or enforcement of
the Collateral);
(C) the amendment, change or modification of the Related
Agreements;
(D) the appointment of successor Transfer Agents and
Registrars, successor Paying Agents and successor
Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators, or the
consent to the assignment by the Transfer Agent and
Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, (x) make
any payments from its own funds to the Noteholders, the holders of Trust
Beneficial Interests or Certificates or any other Person under the Related
Agreements, (y) sell or foreclose upon the Collateral pursuant to Section 5.05
of the Indenture other than pursuant to a written directive of the Indenture
Trustee or (z) take any other action that the Issuer directs the Administrator
not to take on its behalf.
2. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Owner
Trustee, the Indenture Trustee and the Transferor at any time during normal
business hours.
3. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to $5,000 per month which shall be payable in accordance with the
applicable Indenture Supplement, to the extent provided for therein. The
Transferor shall be responsible for payment of the Administrator's fees (to the
extent not paid pursuant to the applicable Indenture Supplement) and shall
reimburse the Administrator for any of its liabilities and extra out-of-pocket
expenses related to its performance hereunder or under any Related Document.
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4. Additional Information to be Furnished to Issuer. The Administrator
shall furnish to the Issuer from time to time such additional information
regarding the Collateral as the Issuer shall reasonably request.
5. Independence of Administrator. For all purposes of this Agreement,
the Administrator shall be an independent contractor and shall not be subject to
the supervision of the Issuer or the Owner Trustee with respect to the manner in
which it accomplishes the performance of its obligations hereunder. Unless
expressly set forth herein or expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
6. No Joint Venture. Nothing contained in this Agreement shall (i)
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) be construed to impose
any liability as such on any of them or (iii) be deemed to confer on any of them
any express, implied or apparent authority to incur any obligation or liability
on behalf of the others.
7. Other Activities of Administrator. Nothing herein shall prevent the
Administrator or its affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of the
Issuer, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(e) and (f), the Administrator may resign its
duties hereunder by providing the Issuer with at least sixty (60) days prior
written notice.
(c) Subject to Section 8(e) and (f), the Issuer may remove the
Administrator without cause by providing the Administrator with at least sixty
(60) days prior written notice.
(d) Subject to Section 8(e) and (f), at the sole option of the Issuer,
the Administrator may be removed immediately upon written notice of termination
from the Issuer to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default, shall not
cure such default within thirty (30) days (or, if such default cannot be cured
in such time, shall not give within thirty (30) days such assurance of cure as
shall be reasonably satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been vacated
within sixty (60) days, in respect of the
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Administrator in any involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect or appoint a
receiver, conservator, liquidator, assignee, custodian, trustee, sequestrator or
similar official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
the Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors, shall
admit in writing its inability to pay its debts generally as they become due or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this Section 8(d) shall occur, it shall give written notice
thereof to the Issuer and the Indenture Trustee within seven (7) days after the
happening of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section 8 shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be effective
only after satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b), (c) or
(d), respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b), (c) or (d), respectively, the Administrator shall cooperate with the
Issuer and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
Advanta Business Card Master Trust
x/x Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxxx
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0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(b) if to the Administrator, to
Advanta Bank Corp.
00000 Xxxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxx 00000
Attn: Treasury Department
(c) if to the Indenture Trustee, to
Bankers Trust Company
Four Albany Street, 10th Floor
New York, New York 10006
(d) if to the Transferor, to
Advanta Business Receivables Corp.
000 Xxxxxx Xxxx, Xxxxx 000
Xxxx, Xxxxxx 00000
Attn: Treasury Department
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand-delivered
to the address of such party as provided above, except that notices to the
Indenture Trustee, the Transferor, the Administrator or the Issuer are effective
only upon receipt.
11. Amendments. This Agreement may be amended from time to time, by a
written amendment duly executed and delivered by the Issuer and the
Administrator, with the written consent of the Owner Trustee, without the
consent of any of the Noteholders, the Transferor or the Owner, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or modifying in any manner the rights of the
Noteholders or Owner; provided, however, that (i) such amendment will not, as
evidenced by an Officer's Certificate of the Administrator addressed and
delivered to the Owner Trustee, materially and adversely affect the interests of
any Noteholder or the Owner and (ii) the Rating Agency Condition will have been
satisfied with respect to such amendment.
This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by the Issuer and the Administrator, with
the written consent of the Owner Trustee, the Holders of Notes representing more
than 50% of the Outstanding Amount of each
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adversely affected Series, the Transferor and the Owner, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of
Noteholders or the Owner; provided, however, that, without the consent of the
Holders of all of the Notes then outstanding, no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Collateral or distributions that are
required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid portion of the Outstanding Amount of the Notes, the Holders of which
are required to consent to any such amendment.
Prior to the execution of any such amendment or consent, the
Administrator shall furnish written notification of the substance of such
amendment or consent to each Rating Agency. Promptly after the execution of any
such amendment or consent, the Administrator shall furnish written notification
of the substance of such amendment or consent to the Indenture Trustee.
It shall not be necessary for the consent of Noteholders pursuant to
this Section 11 to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
12. Successors and Assigns. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
the Issuer, the Transferor and the Owner Trustee and subject to the satisfaction
of the Rating Agency Condition in respect thereof. An assignment with such
consent and satisfaction, if accepted by the assignee, shall bind the assignee
hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer, the Transferor, the Owner
Trustee or the Rating Agencies to a corporation or other organization that is a
successor (by merger, consolidation or purchase of assets) to the Administrator,
provided that such successor organization executes and delivers to the Issuer,
the Transferor and the Owner Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS
PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
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16. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
17. Not Applicable to ABC in Other Capacities. Nothing in this
Agreement shall affect any obligation ABC may have in any other capacity, other
than as Administrator.
18. Limitation of Liability of Owner Trustee. Notwithstanding anything
contained herein to the contrary, this instrument has been signed by Wilmington
Trust Company not in its individual capacity but solely in its capacity as Owner
Trustee of the Issuer and in no event shall Wilmington Trust Company in its
individual capacity or any beneficial owner of the Issuer have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the
assets of the Issuer. For all purposes of this Agreement, in the performance of
any duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles IV, V, VI and VII of the Trust Agreement.
19. Third-Party Beneficiary.
(a) The Owner Trustee is a third-party beneficiary to this Agreement
and is entitled to the rights and benefits hereunder and may enforce the
provisions hereof as if it were a party hereto.
(b) Solely with respect to any amounts owing to the Indenture Trustee
pursuant to Section 6.07 of the Indenture, the Indenture Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
20. Nonpetition Covenants. Notwithstanding any prior termination of
this Agreement, the Administrator shall not at any time with respect to the
Issuer or the Transferor acquiesce, petition or otherwise invoke or cause the
Issuer or the Transferor to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
or the Transferor under any Federal or state bankruptcy, insolvency or similar
law or appointing a receiver, conservator, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Issuer or the
Transferor or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Issuer or the Transferor; provided,
however, that this Section 20 shall not operate to preclude any remedy described
in Article V of the Indenture.
21. Successor Administrator. In the event of a servicing transfer
pursuant to Article V of the Transfer and Servicing Agreement, the successor
servicer under the Transfer and Servicing Agreement shall, upon the date of such
servicing transfer, become the successor Administrator hereunder.
"Administrator" shall mean initially ABC and thereafter its permitted successors
and assigns as provided in Section 12 or any successor Administrator as provided
in this Section 21.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Administration
Agreement to be duly executed and delivered as of the day and year first above
written.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
Advanta Business Card Master Trust
/s/ Xxxxx Xxxxxxx
By: ______________________________________
Name: Xxxxx Xxxxxxx
Title: Financial Services Officer
ADVANTA BANK CORP.,
as Administrator
/s/ Xxxx X.Xxxxx
By: ______________________________________
Name: Xxxx X. Xxxxx
Title: President
Acknowledged and Accepted:
ADVANTA BUSINESS RECEIVABLES CORP.,
as Transferor
/s/ Xxxxxxx Xxxx
By: ___________________________________________
Name: Xxxxxxx Xxxx
Title: Vice President - Finance
[Signature Page to Administration Agreement]
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EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF DELAWARE )
)ss.:
COUNTY OF NEW CASTLE )
KNOW ALL MEN BY THESE PRESENTS, that Wilmington Trust Company, as owner
trustee of Advanta Business Card Master Trust, a Delaware common law trust
("Trust"), does hereby make, constitute and appoint Advanta Bank Corp., as
Administrator under the Administration Agreement (as defined below), and its
agents and attorneys, as attorneys-in-fact to execute on behalf of the Trust all
such documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust to prepare, file or deliver pursuant to the
Related Documents (as defined in the Administration Agreement), including,
without limitation, to appear for and represent the Trust in connection with the
preparation, filing and audit of federal, state and local tax returns pertaining
to the Trust, and with full power to perform any and all acts associated with
such returns and audits that the Trust could perform, including without
limitation, the right to distribute and receive confidential information, defend
and assert positions in response to audits, initiate and defend litigation, and
to execute waivers of restriction on assessments of deficiencies, consents to
the extension of any statutory or regulatory time limit, and settlements. For
the purpose of this Power of Attorney, the term "Administration Agreement" means
the Administration Agreement, dated as of August 1, 2000, between the Trust and
Advanta Bank Corp., as Administrator, and as such may be amended from time to
time.
This power of attorney is coupled with an interest and shall survive
and not be affected by the subsequent bankruptcy, insolvency or dissolution of
the Trust.
All powers of attorney for this purpose heretofore filed or executed by
the Trust are hereby revoked.
EXECUTED this 18th day of August, 2000.
WILMINGTON TRUST COMPANY,
as Owner Trustee of
Advanta Business Card Master Trust
By:_______________________________________
Name:
Title:
A-1
