OH&S DRAFT
12/19/00
EXHIBIT 10.2
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WILMINGTON TRUST COMPANY, AS TRUSTEE OF THE
CONSECO PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST
Issuer
and
CONSECO BANK, INC.
Administrator
ADMINISTRATION AGREEMENT
Dated as of [*], 2001
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Table of Contents
Page
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SECTION 1. DUTIES OF ADMINISTRATOR....................................... 1
SECTION 2. RECORDS....................................................... 5
SECTION 3. COMPENSATION.................................................. 5
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER.............. 5
SECTION 5. INDEPENDENCE OF ADMINISTRATOR................................. 5
SECTION 6. NO JOINT VENTURE.............................................. 6
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR............................. 6
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR................................................. 6
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL............... 7
SECTION 10. NOTICES....................................................... 7
SECTION 11. AMENDMENTS.................................................... 8
SECTION 12. SUCCESSORS AND ASSIGNS........................................ 8
SECTION 13. GOVERNING LAW................................................. 9
SECTION 14. HEADINGS...................................................... 9
SECTION 15 COUNTERPARTS.................................................. 9
SECTION 16. SEVERABILITY.................................................. 9
SECTION 17. NOT APPLICABLE TO CONSECO BANK IN OTHER CAPACITIES............ 9
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE...................... 9
SECTION 19. THIRD-PARTY BENEFICIARY....................................... 9
SECTION 20. NONPETITION COVENANTS......................................... 9
SECTION 21. SUCCESSOR ADMINISTRATOR....................................... 10
SCHEDULE 1 - ADMINISTRATION FEE
EXHIBIT A - FORM OF POWER OF ATTORNEY
ADMINISTRATION AGREEMENT dated as of [*], 2001 (the "Administration
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Agreement"), between Wilmington Trust Company, not in its individual capacity
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but solely as Owner Trustee, on behalf of the CONSECO PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST, a business trust organized and existing under the laws of the
State of Delaware (herein, the "Issuer"), and CONSECO BANK, INC., a Utah
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industrial loan corporation, as administrator (herein, the "Administrator").
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W I T N E S S E T H :
WHEREAS the Issuer was formed pursuant to a trust agreement dated as of
[*], 2001 (the "Trust Agreement"), between Conseco Bank, Inc., Conseco Finance
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Credit Card Funding Corp. and Wilmington Trust Company, as owner trustee (the
"Owner Trustee");
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WHEREAS the Issuer has entered into a Master Indenture, dated as of the
Closing Date (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Indenture"), between the Issuer and
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U.S. Bank Trust National Association, a national banking association, as
indenture trustee (the "Indenture Trustee") to provide for the issuance of its
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asset backed notes (the "Notes");
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WHEREAS the Issuer has entered into certain agreements in connection with
the issuance of the Notes and of the beneficial ownership interest of the
Issuer, including (i) a Transfer and Servicing Agreement, dated as of the
Closing Date (as amended, modified or supplemented from time to time in
accordance with the provisions thereof, the "Transfer and Servicing Agreement"),
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among Conseco Bank, Inc., as Transferor (in such capacity, the "Bank"), Conseco
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Finance Credit Card Funding Corp., as Transferor ("Funding Corp."), Conseco
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Bank, Inc., as Servicer (in such capacity, the "Servicer"), and the Issuer, and
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(ii) the Indenture (the Transfer and Servicing Agreement, the Trust Agreement
and the Indenture being hereinafter referred to collectively as the "Related
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Agreements") (capitalized terms used herein and not defined herein shall have
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the meanings assigned to such terms in the Transfer and Servicing Agreement, or
if not defined therein, in the Indenture);
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")
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and (b) the beneficial ownership interest in the Issuer (the holder of such
interest being referred to herein as the "Owner");
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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;
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 agree as follows:
Section 1. Duties of Administrator.
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(a) Duties with Respect to the Related Agreements.
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(i) 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):
(1) 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);
(2) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Registrar and
the location, or change in location, of the Note Register (Section
2.05);
(3) the furnishing of the Indenture Trustee, the Servicer, any
Noteholder or the Paying Agent with the names and addresses of
Noteholders after receipt of a written request therefor from the
Indenture Trustee, the Servicer, any Noteholder or the Paying Agent,
respectively (Section 2.09(a));
(4) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of collateral (Section 2.11);
(5) 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);
(6) the direction to Paying Agents to pay to the Indenture
Trustee all sums held in trust by such Paying Agents (Section 3.03);
(7) 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 instrument and
agreement (Section 3.04);
(8) 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);
(9) the obtaining of the Opinion of Counsel on the Closing Date
and the annual delivery of Opinions of Counsel as to the Collateral,
and the annual delivery of the Officers' Certificate and certain other
statements as to compliance with the Indenture (Sections 3.06 and
3.09);
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(10) 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));
(11) 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));
(12) 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);
(13) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligation under the
Indenture (Section 3.10);
(14) the delivery of notice to the Indenture Trustee of each
Event of Default and each default by the Servicer or the Bank under
the Transfer and Servicing Agreement (Section 3.19) or Funding Corp.
under the Receivables Agreement;
(15) 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);
(16) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default specified in clause (a) or
(b) of Section 5.02 of the Indenture shall have occurred and be
continuing (Section 5.05);
(17) 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 (Sections
6.08 and 6.10);
(18) the preparation of an Issuer Request and Officers'
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);
(19) 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);
(20) the execution of new Notes conforming to any supplemental
indenture (Section 10.06);
(21) the preparation of all Officers' Certificates, Opinions of
Counsel and Independent Certificates with respect to any requests by
the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 12.01(a));
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(22) 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));
(23) the notification of each Rating Agency of the information
required pursuant to Section 12.05 of the Indenture (Section 12.05);
(24) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 12.06); and
(25) compliance with the administrative provisions of the
Transfer and Servicing Agreement.
(b) Additional Duties.
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(i) In addition to the duties of the Administrator set forth above,
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 Sections 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 Administrator
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 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 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 Agreements. 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
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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.
(c) Non-Ministerial Matters.
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(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 Transferor of the proposed action
and the Transferor shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence, "non-
ministerial matters" shall include, without limitation:
(1) the amendment of or any supplement to the Indenture;
(2) 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);
(3) the amendment, change or modification of the Related
Agreements;
(4) the appointment of successor 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 Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(5) 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, (A) make any
payments from its own funds to the Noteholders or the Owner under the
Related Agreements, (B) sell the Collateral pursuant to Section 5.05 of the
Indenture other than pursuant to a written directive of the Indenture
Trustee or (C) take any other action that the Issuer directs the
Administrator not to take on its behalf.
Section 2. Records. The Administrator shall maintain appropriate books of
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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, the Servicer and the Transferors at any time
during normal business hours.
Section 3. Compensation. As compensation for the performance of the
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Administrator's obligations under this Agreement, the Administrator shall be
entitled to the amount set forth on Schedule 1 which shall be payable in
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accordance with the applicable Indenture Supplement. The Transferors 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 (including
without limitation those expenses set forth in Section 1(a)(ii) of this
Agreement).
Section 4. Additional Information to be Furnished to Issuer. The
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Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
Section 5. Independence of Administrator. For all purposes of this
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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 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.
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Section 6. No Joint Venture. Nothing contained in this Agreement shall (a)
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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, (b) be construed to impose any
liability as such on any of them or (c) 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.
Section 7. Other Activities of Administrator. Nothing herein shall prevent
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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.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
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(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
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duties hereunder by providing the Issuer with at least 60 days prior written
notice.
(c) Subject to Section 8(e) and (f), the Issuer may remove the
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Administrator without cause by providing the Administrator with at least 60 days
prior written notice.
(d) Subject to Section 8(e) and (f), at the sole option of the Issuer, the
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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 30 days (or, if such default cannot be cured in
such time, shall not give within 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 60 days, in respect of the 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,
conservator, 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
days after the happening of such event.
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(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.
Section 9. Action upon Termination, Resignation or Removal. Promptly upon
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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.
Section 10. Notices. Any notice, report or other communication given
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hereunder shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to
Conseco Private Label Credit Card Master Note Trust
c/o Wilmington Trust Company
_______________________
_______________________
_______________________
(b) if to the Bank, to
Conseco Bank, Inc.
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention:_____________
(c) if to Funding Corp., to
Conseco Bank, Inc.
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Attention:_____________
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(d) if to the Administrator, to
Conseco Bank, Inc.
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▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention:_____________
(e) if to the Indenture Trustee, to
U.S. Bank Trust National Association
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▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporation Trust
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 are effective only upon receipt.
Section 11. Amendments. This Agreement may be amended from time to time,
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by a written amendment duly executed and delivered by the Issuer, the
Administrator and the Transferors, with the written consent of the Owner
Trustee, without the consent of any of the Noteholders or the Owner, (i) to cure
any ambiguity, (ii) to correct or supplement any provisions herein which may be
inconsistent with any other provisions herein, (iii) to add any other provisions
with respect to matters or questions arising under this Agreement which shall
not be inconsistent with the provisions of this Agreement, (iv) to change,
modify, delete or add any other obligation of the Issuer and the Administrator;
provided, however, the Issuer and the Administrator shall have delivered to the
Indenture Trustee an Officer's Certificate, dated the date of any such action,
stating that each of the Issuer and the Administrator reasonably believes that
such action will not have an Adverse Effect, unless the Owner Trustee and the
Indenture Trustee shall consent thereto.
This Agreement may also be amended from time to time, by a written
amendment duly executed and delivered by the Issuer, the Administrator and the
Transferors, with the written consent of the Owner Trustee, the holders of Notes
evidencing not less than a majority in the Outstanding Amount of the Notes 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 Receivables 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.
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Section 12. Successors and Assigns. This Agreement may not be assigned by
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the Administrator unless such assignment is previously consented to in writing
by the Issuer, the Transferors 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 Transferors, 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 Transferors 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.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
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WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 14. Headings. The section headings hereof have been inserted for
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convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 15. Counterparts. This Agreement may be executed in counterparts,
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each of which when so executed shall together constitute but one and the same
agreement.
Section 16. Severability. Any provision of this Agreement that is
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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.
Section 17. Not Applicable to Conseco Bank in Other Capacities. Nothing in
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this Agreement shall affect any obligation Conseco Bank may have in any other
capacity.
Section 18. Limitation of Liability of Owner Trustee. Notwithstanding
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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.
Section 19. Third-Party Beneficiary.
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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.
Section 20. Nonpetition Covenants. Notwithstanding any prior termination
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of this Agreement, the Administrator shall not at any time with respect to the
Issuer or the Transferors acquiesce, petition or otherwise invoke or cause the
Issuer or the Transferors to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
or the
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Transferors 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 Transferors or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer or the Transferors; provided, however, that this
Section 20 shall not operate to preclude any remedy described in Article V of
the Indenture.
Section 21. Successor Administrator. In the event of a servicing transfer
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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 Conseco Bank, Inc. and thereafter its
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permitted successor and assigns as provided in Section 12 or any successor
Administrator as provided in this Section 21.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the
CONSECO PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST
By:_________________________________
Name:
Title:
CONSECO BANK, INC.
as Administrator,
By:_________________________________
Name:
Title:
Acknowledged and Accepted:
By: CONSECO BANK, INC.,
as Transferor
By:_________________________________
Name:
Title:
By: CONSECO FINANCE CREDIT CARD FUNDING CORP.,
as Transferor
By:_________________________________
Name:
Title:
[Signature Page to Administration Agreement]
SCHEDULE 1
The Administration Fee shall equal $______ per annum.
EXHIBIT A
[Form of Power of Attorney]
POWER OF ATTORNEY
STATE OF DELAWARE )
)
COUNTY OF ______________ )
KNOW ALL MEN BY THESE PRESENTS, that Conseco Private Label Credit Card
Master Note Trust, a Delaware business trust ("Trust"), does hereby make,
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constitute and appoint Conseco Bank, Inc., 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 Agreements (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 _____ __, 2001, between the Trust and Conseco Bank, Inc.,
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 or dissolution of the Trust.
All powers of attorney for this purpose heretofore filed or executed by the
Trust are hereby revoked.
EXECUTED this ____ day of _________, 2001.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the
CONSECO PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST
By:___________________________________
Name:
Title: