ADMINISTRATION AGREEMENT
Between CONSECO FUND GROUP
and
CONSECO SERVICES, LLC
THIS ADMINISTRATION AGREEMENT is entered into as of this day
of January, 1997, by and between Conseco Fund Group (the Trust ), a
Massachusetts business trust having its principal office and place of
business at 00000 X. Xxxxxxxxxxxx Xx., Xxxxxx, Xxxxxxx, and Conseco
Services LLC (the Servicer ), an Indiana limited liability company having
its principal office and place of business at 00000 X. Xxxxxxxxxxxx Xx.,
Xxxxxx, Xxxxxxx.
WITNESSETH:
WHEREAS, the Trust is authorized to issue shares of beneficial
interest ( Shares ) in separate series, with each series representing
interests in a separate portfolio of securities and other assets (the
Funds ); and
WHEREAS, the Trust, on behalf of the Funds, desires the Servicer to
provide administrative services, and the Servicer desires to provide said
services directly or through other entities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants, conditions and agreements contained herein, and for
such other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the parties, each intending to be legally
bound hereby, mutually agree as follows:
1. Terms of Appointment: Duties of the Servicer
1.1 Subject to the terms and conditions set forth in this Agreement, the
Trust, on behalf of the Funds, hereby engages the Servicer to
provide, and the Servicer agrees to provide, administrative services
to the Trust, to its Funds and to the shareholders of each of the
respective Funds of the Trust ( Shareholders ) as set out hereunder
and in the currently effective prospectus and statement of additional
information ( Prospectus ) of the Trust on behalf of the applicable
Fund.
1.2 The Servicer agrees that it will perform the following services:
(a) The Servicer shall provide administrative services on behalf of
the Funds which may be agreed upon in writing between the Trust
and the Servicer and will include (i) administering the
corporate affairs of the Funds, including supervising the
preparation and filing of all documents required for compliance
by the Funds with applicable laws and regulations, (ii)
furnishing the Funds with such office space, equipment, and
personnel as is needed in connection with their operation,
(iii) furnishing clerical and bookkeeping services as are
needed by the Funds in connection with their operation, (iv)
supervising the maintenance of books and records, (v) assisting
in the preparation of annual and other reports to shareholders
of the Funds, the Securities and Exchange Commission, and any
appropriate governmental body, (vi) fund accounting, (vii)
reviewing and filing any federal, state and local income tax
returns pertaining to the Funds as requested by the Trust,
(viii) preparing for meetings of the Trust s Board of Trustees
and shareholders, (ix) permitting its officers and employees to
serve without compensation as Trustees or officers of the Trust
if elected to such positions, (x) overseeing the determination
and publication of the Funds net asset value in accordance
with the Funds policies as adopted from time to time by the
Trustees, and (xi) in general, supervising the performance of
t h e administrative functions necessary to the Funds in
connection with their operation, subject to the ultimate
supervision and direction of the Trustees.
(b) The administrative services provided hereunder will exclude
(i) portfolio custodial services provided by the Trust s
custodian bank, (ii) transfer agency services provided by the
Trust s transfer agent, (iii) distribution services provided by
the distributor of the Trust s Shares, Conseco Equity Sales,
Inc., and (iv) any administrative services provided by the
Trust s investment adviser pursuant to its investment advisory
agreements with the Trust.
2. Fees and Expenses
2.1 For the performance by the Servicer pursuant to this Agreement, the
Trust agrees on behalf of the Funds to pay the Servicer annual fees
as set out below:
(a) From each Fund, a fee of .20% per annum of its Class A shares
average daily net assets.
(b) From each Fund, a fee of .20% per annum of its Class Y shares
average daily net assets.
The fees and the extraordinary expenses identified under Section 2.2
below may be changed from time to time subject to mutual written
agreement between the Trust and the Servicer.
2.2 In addition to the fees paid under Section 2.1 above, the Trust
agrees on behalf of the Funds to reimburse the Servicer for any
extraordinary expenses incurred by the Servicer at the request of the
Trust and upon the prior consent of the Trustees.
2.3 The Trust agrees on behalf of the Funds to pay all fees and
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reimbursable expenses promptly. The Servicer will xxxx the Trust
monthly in arrears.
3. Representations and Warranties of the Servicer and the Trust
3.1 The Servicer represents and warrants to the Trust that:
(a) It is a limited liability company duly organized and existing,
in good standing, under the laws of the State of Indiana.
(b) It is duly qualified to carry on its business in the State of
Indiana.
(c) It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement.
(d) A l l requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
(e) It has and will continue to have access to the necessary
facilities equipment and personnel to perform its duties and
obligations under this Agreement.
3.2 The Trust represents and warrants to the Servicer that:
(a) It is a business trust duly organized and existing, in good
standing, under the laws of the Commonwealth of Massachusetts.
(b) It is empowered under applicable laws and by its Agreement and
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
(c) All corporate proceedings required by said Agreement and
Declaration of Trust and By-Laws have been taken to authorize
it to enter into and perform this Agreement.
(d) It is an open-end diversified investment management company
registered under the Investment Company Act of 1940, as amended
(the 1940 Act ).
(e) A registration statement under the Securities Act of 1933, as
amended, and the 1940 Act, on behalf of the Funds is currently
effective and will remain effective, and appropriate securities
filings have been made and will continue to be made with
respect to all Shares of the Funds being offered for sale.
4. Confidentiality
Subject to the duty of the Trust or the Servicer to comply with
applicable law, each party hereto shall treat as confidential all
information with respect to the other party received pursuant to this
Agreement.
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5. Indemnification
The Servicer and its shareholders, officers, directors or employees
shall not be responsible for, and the Trust shall on behalf of the
applicable Fund indemnify and hold the Servicer harmless from, any
and all losses, expenses and liability arising out of the Servicer s
activities hereunder, except for willful misconduct, bad faith or
negligence of the Servicer or that of its employees or the reckless
disregard by the Servicer of its obligations and duties hereunder.
Nothing herein shall in any way constitute a waiver or limitation of
any rights which may exist under any federal securities laws.
6. Standard of Care
The Servicer shall at all times act in good faith and use its best
efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement. The Servicer assumes no
responsibility and shall not be liable for loss or damage due to
errors unless said errors are caused by its negligence, bad faith, or
willful misconduct or that of its employees or subcontractors.
7. Covenants of the Servicer
The Servicer shall keep records relating to the services to be
performed hereunder in the form and manner as it may deem advisable.
To the extent required by Section 31 of the 1940 Act and the Rules
thereunder, the Servicer agrees that all said records prepared or
maintained by the Servicer relating to the services to be performed
hereunder are the property of the Trust, and will be preserved,
maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Trust on and in
accordance with its request.
8. Additional Funds
In the event that the Trust establishes one or more series of Shares
in addition to the existing Funds with respect to which it desires to
have the Servicer render administrative services under the terms
hereof, it shall so notify the Servicer in writing. If the Servicer
agrees in writing to provide said services, such series of Shares
shall become a Fund hereunder.
9. Amendment
This Agreement may be amended or modified by a written Agreement
executed by both parties and authorized or approved by a resolution
of the Trustees of the Trust.
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10. Assignment
10.1 Except as provided in Section 10.3 below, neither this agreement nor
any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
10.2 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
10.3 The Servicer may, without further consent on the part of the Trust,
subcontract for the performance hereof with an affiliate or a non-
affiliate of the Servicer, provided, however, that the Servicer shall
be fully responsible to the Trust for the acts and omissions of any
subcontractor as it is for its own acts and omissions. The Servicer
s h all compensate any subcontractor retained pursuant to this
Agreement out of the fees it receives from the Funds pursuant to
Section 2.1 above.
11. Term of Agreement
This Agreement shall become effective on the date hereof and shall
continue in effect for two years from such date unless sooner
terminated as hereinafter provided, and shall continue in effect from
year to year thereafter so long as such continuation is approved at
least annually by (i) the Trustees of the Trust or by the vote of a
majority of the outstanding voting securities of the Fund(s) and (ii)
the vote of a majority of the Trustees of the Trust who are not
parties to this Agreement or interested persons of any such party,
with such vote being cast in person at a meeting called for the
purpose of voting on such approval.
12. Termination
This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
13. Applicable Law
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of
Indiana.
14. Force Majeure
In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure, or other causes reasonably beyond
its control, such party shall not be liable for damages to the other
resulting from such failure to perform or otherwise from such causes.
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15. Consequential Damages
Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or
for any consequential damages arising out of any act or failure to
act hereunder.
16. Merger of Agreement
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
17. Limitations of Liability of the Trustees and Shareholders
A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of the Commonwealth of Massachusetts and
notice is hereby given that this instrument is executed on behalf of
the Trustees of the Trust as Trustees, and not individually, and that
the obligations of this instrument are not binding upon any of the
Trustees or Shareholders individually but are binding only upon the
assets and property of the Trust.
18. Counterparts
This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested by their duly authorized officers on the day
and year first above written.
CONSECO FUND GROUP
ATTEST:
By:
[title]
CONSECO SERVICES, LLC
ATTEST:
By:
[title]
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