EXHIBIT 10.2
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CONSECO PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST,
the Trust
and
CONSECO BANK, INC.,
Administrator
FORM OF
ADMINISTRATION AGREEMENT
Dated as of May __, 2001
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Table of Contents
Page
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Section 1. Duties of Administrator.........................................2
Section 2. Records.........................................................5
Section 3. Compensation....................................................5
Section 4. Additional Information to be Furnished to Trust.................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..........................................9
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..........................................10
Section 21. Successor Administrator........................................10
SCHEDULE 1 - ADMINISTRATION FEE
EXHIBIT A - FORM OF POWER OF ATTORNEY
ADMINISTRATION AGREEMENT dated as of May __, 2001 (the "Administration
Agreement"), between CONSECO PRIVATE LABEL CREDIT CARD MASTER NOTE TRUST, a
business trust organized and existing under the laws of the State of Delaware
(herein, the "Trust"), and CONSECO BANK, INC., a Utah industrial loan
corporation, as administrator (herein, the "Administrator").
W I T N E S S E T H :
WHEREAS the Trust was formed December 26, 2000 by the filing of a
certificate of trust with Delaware Secretary of State and is governed pursuant
to a trust agreement dated as of December 22, 2000, as amended and restated by
the Amended and Restated Trust Agreement dated as of May __, 2001 (as amended
and restated, the "Trust Agreement"), among Conseco Bank, Inc., Conseco Finance
Credit Card Funding Corp. and Wilmington Trust Company, as owner trustee (the
"Owner Trustee");
WHEREAS the Trust has entered into a Master Indenture, dated as of May
1, 2001 (as amended, modified or supplemented from time to time in accordance
with the provisions thereof, the "Indenture"), among the Trust, U.S. Bank Trust
National Association, a national banking association, as indenture trustee (the
"Indenture Trustee") and Conseco Bank, Inc., as servicer, to provide for the
issuance of its asset backed notes (the "Notes");
WHEREAS the Trust has entered into certain agreements in connection
with the issuance of the Notes and of the beneficial ownership interest of the
Trust, including (i) a Transfer and Servicing Agreement, dated as May 1, 2001
(as amended, modified or supplemented from time to time in accordance with the
provisions thereof, the "Transfer and Servicing Agreement"), among Conseco Bank,
Inc. (the "Bank"), as Transferor, Conseco Finance Credit Card Funding Corp.
("Credit Card Funding Corp."), as Transferor, Conseco Bank, Inc., as Servicer
(in such capacity, the "Servicer"), and the Trust, and (ii) the Indenture (the
Transfer and Servicing Agreement, the Trust Agreement and the Indenture 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);
WHEREAS, Conseco Bank, Inc. and Conseco Finance Credit Card Funding
Corp. are the initial Owners under the Trust Agreement;
WHEREAS pursuant to the Related Agreements, the Trust 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 Trust (the holders of such
interest being referred to herein as the "Owners");
WHEREAS the Trust and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Trust 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
Trust 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 Trust 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.
(a) Duties with Respect to the Related Agreements.
(i) The Administrator shall consult with the Owner Trustee
regarding the duties of the Trust and the Owner Trustee under the
Related Agreements. The Administrator shall monitor the performance of
the Trust and shall advise the Owner Trustee when action is necessary
to comply with the Trust's or the Owner Trustee's duties under the
Related Agreements. The Administrator shall prepare for execution by
the Trust 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
Trust 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 Trust 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 Trust'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 each
Series Issuance Date and the annual delivery of Opinions of
Counsel as to the Collateral, and the annual
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delivery of the Officers' Certificate and certain other
statements as to compliance with the Indenture (Sections 3.06
and 3.09);
(10) the identification to the Indenture Trustee in
an Officer's Certificate of a Person with whom the Trust 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 Trust
has knowledge and the action, if any, the Trust is taking in
connection with such default (Section 3.07(d));
(12) the delivery to the Indenture Trustee of any
Account Schedule received by the Trust (Section 3.07(g));
(13) the delivery to the Indenture Trustee, within
120 days after the end of each fiscal year of the Trust of an
Officer's Certificate with respect to various matters relating
to compliance with the Indenture (Section 3.09);
(14) the preparation and obtaining of documents and
instruments required for the release of the Trust from its
obligation under the Indenture (Section 3.10);
(15) the delivery of notice to the Indenture Trustee
of each Event of Default and each default by the Servicer or
the Transferors under the Transfer and Servicing Agreement and
each default by any seller or transferor under a Receivables
Purchase Agreement (Section 3.19);
(16) the monitoring of the Trust'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);
(17) 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 Section 5.02 of the Indenture shall have occurred
and be continuing (Section 5.05);
(18) 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);
(19) 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);
(20) 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
and the Rating Agencies of notices with respect to such
supplemental indentures (Sections 10.01, 10.02 and 10.03);
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(21) the execution of new Notes conforming to any
supplemental indenture (Section 10.06);
(22) the preparation of all Officers' Certificates,
Opinions of Counsel and Independent Certificates with respect
to any requests by the Trust to the Indenture Trustee to take
any action under the Indenture (Section 12.01(a));
(23) 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));
(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.
(i) In addition to the duties of the Administrator set forth
above, the Administrator shall perform all duties and obligations of
the Trust under the Related Agreements and shall perform such
calculations and shall prepare for execution by the Trust 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 Trust or the Owner Trustee to prepare, file
or deliver pursuant to the Related Agreements, and at the request of
the Trust or the Owner Trustee shall take all appropriate action that
it is the duty of the Trust 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 Trust, 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 Trust and
shall be, in the Administrator's opinion, no less favorable to the
Trust 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 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. In furtherance thereof, the Owner Trustee shall, on behalf
of the Trust, 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
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the attorney-in-fact of the Trust for the purpose of executing on
behalf of the Trust all such documents, reports, filings, instruments,
certificates and opinions.
(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 Owners of the
proposed action and the Owners 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
Trust and the compromise of any action, claim or lawsuit
brought by or against the Trust (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
Owners 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 Trust directs the Administrator not to take on its behalf.
Section 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 Trust, 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
Administrator's obligations under this Agreement, the Administrator shall be
entitled to the amount set forth on Schedule 1 which shall be payable in
accordance with the applicable Indenture Supplement. The Owners 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.
Section 4. Additional Information to be Furnished to Trust. The
Administrator shall furnish to the Trust from time to time such additional
information regarding the Collateral as the Trust shall reasonably request.
Section 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 Trust or the Owner Trustee with respect to the
manner in which it accomplishes the performance of its
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obligations hereunder. Unless expressly authorized by the Trust, the
Administrator shall have no authority to act for or represent the Trust or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the Trust
or the Owner Trustee.
Section 6. No Joint Venture. Nothing contained in this Agreement shall
(a) constitute the Administrator and either of the Trust 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 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 Trust, the Owner
Trustee or the Indenture Trustee.
Section 8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the termination of the
Trust, 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 Trust with at least 60 days prior written
notice.
(c) Subject to Section 8(e) and (f), the Trust may remove the
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 Trust,
the Administrator may be removed immediately upon written notice of termination
from the Trust 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 Trust);
(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.
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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 Trust and
the Indenture Trustee within seven 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 Trust 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 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 Trust 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 Trust and take all reasonable steps requested to assist the
Trust in making an orderly transfer of the duties of the Administrator.
Section 10. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed as follows:
(a) if to the Trust or the Owner Trustee, to
Conseco Private Label Credit Card Master Note Trust
c/o Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to Credit Card Funding Corp., to
Conseco Finance Credit Card Funding Corp.
1100 Landmark Towers
▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier:
Telephone:
Attention:
---------------
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(c) if to the Administrator, to
Conseco Bank, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telecopier:
Telephone:
Attention:
---------------
(d) if to the Indenture Trustee, to
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier:
Telephone:
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, by a written amendment duly executed and delivered by the Trust and the
Administrator with the written consent of the Owner Trustee and the Owners,
without the consent of any of the Noteholders, (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 Trust and the Administrator; provided,
however, the Trust 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 Trust 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 Trust and the Administrator, 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 Owners, 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 Owners; 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.
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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.
Section 12. Successors and Assigns. This Agreement may not be assigned
by the Administrator unless such assignment is previously consented to in
writing by the Trust, the Owners 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 Trust, the Owners, 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 Trust, the Owners
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 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 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, 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
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 this Agreement shall affect any obligation the Bank may have in any other
capacity.
Section 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 Trust and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of the Trust have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Trust hereunder, as to all of which recourse shall be had
solely to the assets of the Trust. For all purposes of this Agreement, in the
performance of any duties or obligations of the Trust 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.
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.
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Section 20. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Administrator shall not at any time with
respect to the Trust or the Transferors acquiesce, petition or otherwise invoke
or cause the Trust or the Transferors to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Trust or the 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 Trust or the
Transferors or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Trust 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. Notwithstanding the provisions of
Section 8 of this Agreement, 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 provided that the
successor Administrator shall have agreed in writing to be bound by the terms of
this Agreement in the same manner as the initial Administrator is bound, but
otherwise shall not be required to comply with the provisions of Section 8 of
this Agreement. "Administrator" shall mean initially Conseco Bank, Inc. and
thereafter its 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.
CONSECO PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:
-------------------------------------------
Name:
Title:
CONSECO BANK, INC.
as Administrator,
By:
-------------------------------------------
Name:
Title:
Acknowledged and Accepted:
By: CONSECO BANK, INC.,
as Transferor and Owner
By:
------------------------------
Name:
Title:
By: CONSECO FINANCE CREDIT CARD FUNDING CORP.,
as Transferor and Owner
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,
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 May ___, 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.
CONSECO PRIVATE LABEL CREDIT CARD
MASTER NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:
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Name:
Title: