AGREEMENT AMONG
AMR INVESTMENT SERVICES TRUST
AMR INVESTMENT SERVICES, INC.
and
CONSECO FUND GROUP
CONSECO CAPITAL MANAGEMENT, INC.
THIS AGREEMENT is made and entered into as of the 10th day of December,
1997, by and among AMR Investment Services Trust ("AMR Trust"), AMR Investment
Services, Inc. ("AMR"), Conseco Fund Group ("Conseco Trust") and Conseco Capital
Management, Inc. ("Adviser").
WHEREAS, the International Equity Portfolio ("Portfolio") is a series
of AMR Trust and the International Fund ("Fund") is a series of Conseco Trust;
WHEREAS, the Portfolio and the Fund are each a series of separate
open-end management investment companies and each have the same investment
objectives and substantially the same investment policies;
WHEREAS, AMR serves as the manager of the Portfolio and Adviser and its
affiliates serve as the investment adviser, administrator, sponsor and
distributor of the Fund;
WHEREAS, the Fund desires to invest all of its investable assets in the
Portfolio in exchange for a beneficial interest in the Portfolio (the
"Investment") on the terms and conditions set forth in this Agreement; and
WHEREAS, the Portfolio believes that accepting the Investment is in the
best interests of the Portfolio and that the interests of existing investors in
the Portfolio will not be diluted as a result of its accepting the Investment;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein made and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows.
ARTICLE I
THE INVESTMENT
1.1 Agreement to Effect the Investment. The Fund agrees to assign,
transfer and deliver all of the Fund's investable assets ("Assets") to the
Portfolio at each Closing (as hereinafter defined). The Portfolio agrees in
exchange therefor to issue to the Fund a beneficial interest ("Interest") in the
Portfolio equal in value to the net value of the Assets of the Fund conveyed to
the Portfolio on that date of Closing, which Interest shall be fully redeemable
in accordance with the Investment Company Act of 1940, as amended ("1940 Act")
and the AMR Trust's registration thereunder.
ARTICLE II
CLOSING AND CLOSING DATE
2.1 Time of Closing. The conveyance of the Assets in exchange for the
Interest, as described in Article I, together with related acts necessary to
consummate such transactions, shall occur initially on the date the Fund
commences an offering of its shares to the public and at each subsequent date as
the Fund desires to make a further Investment in the Portfolio (each, a
"Closing"). All acts occurring at any Closing shall be deemed to occur
simultaneously as of the last daily determination of the Portfolio's net asset
value on the date of Closing.
2.2 Related Closing Matters. On each date of Closing, the Conseco
Trust, on behalf of the Fund, shall authorize the Fund's custodian to deliver
all of the Assets held by such custodian to the Portfolio's custodian. The
Fund's and the Portfolio's custodians shall acknowledge, in a form acceptable to
the other party, their respective delivery and acceptance of the Assets. The
Portfolio shall deliver to the Conseco Trust evidence acceptable to the Conseco
Trust of the Fund's ownership of the Interest. In addition, each party shall
deliver to each other party such bills of sale, checks, assignments, securities
instruments, receipts or other documents as such other party or its counsel may
reasonably request. Each of the representations and warranties set forth in
Article III shall be deemed to have been made anew on each date of Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 The Conseco Trust and Adviser. The Conseco Trust and Adviser each
represents and warrants to AMR Trust and AMR that:
(a) Organization. The Conseco Trust is a trust duly organized,
validly existing and in good standing under the laws of Massachusetts, the Fund
is a duly and validly designated series of the Conseco Trust, and the Conseco
Trust and the Fund have the requisite power and authority to own their property
and conduct their business as now being conducted and as proposed to be
conducted pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by the Conseco Trust and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Conseco Trust and the Fund and no other action or proceeding is
necessary for the execution and delivery of this Agreement by the Conseco Trust,
the performance by the Conseco Trust of its obligations hereunder and the
consummation by the Conseco Trust of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by the Conseco Trust and
constitutes a legal, valid and binding obligation of the Conseco Trust in
respect of the Fund, and is enforceable against them in accordance with its
terms.
(c) Authorization of Investment. The Investment has been duly
authorized by all necessary action on the part of the Board of Trustees of the
Conseco Trust.
(d) No Bankruptcy Proceedings. Neither the Conseco Trust nor
the Fund is under the jurisdiction of a court in a proceeding under Title 11 of
the United States Code (the "Bankruptcy Code") or similar case within the
meaning of Section 368(a)(3)(A) of the Bankruptcy Code.
(e) Fund Assets. The Fund's Assets will, at the initial
Closing, consist solely of cash.
(f) Fiscal Year. The fiscal year end for the Fund is October
31.
(g) Auditors. The Conseco Trust has appointed Coopers &
Xxxxxxx as the Fund's independent public accountants to certify the Fund's
financial statements in accordance with Section 32 of the 1940 Act.
(h) Registration Statements. The Conseco Trust and Adviser (1)
have reviewed the Portfolio's registration statement on Form N-1A, as filed with
the Securities and Exchange Commission ("SEC"), and the Conseco Trust
understands and agrees to the Portfolio's policies and methods of operation as
described therein, and (2) have provided to AMR Trust and AMR the Trust's most
recent registration statement on Form N-1A, as filed with the SEC, and all
exhibits contained or incorporated therein.
(i) Errors and Omissions Insurance Policy. The Conseco Trust
has in force an errors and omissions liability insurance policy insuring the
Fund against loss up to at least $2,000,000 for negligence or wrongful acts.
(j) SEC Filings. The Conseco Trust has duly filed all forms
and other documents (collectively, "SEC Filings") required to be filed under the
Securities Act of 1933, as amended ("1933 Act"), the Securities Exchange Act of
1934 ("1934 Act") and the 1940 Act (collectively, the "Securities Laws") in
connection with the registration of the Fund shares, any meetings of the Fund
shareholders and its registration as an investment company. The SEC Filings
regarding the Fund were prepared in accordance with the requirements of the
Securities Laws, as applicable, and the rules and regulations of the SEC
thereunder, and do not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(k) 1940 Act Registration. The Conseco Trust is duly
registered as an open-end management investment company under the 1940 Act and
the Fund and its shares are registered or qualified in any states where such
registration or qualification is necessary and such registrations or
qualifications are in full force and effect.
3.2 The Portfolio and AMR. The Portfolio and AMR each represents and
warrants to the Conseco Trust and Adviser that:
(a) Organization. AMR Trust is a trust duly organized, validly
existing and in good standing under the common law of the State of New York, the
Portfolio is a duly and validly designated series of AMR Trust, and AMR Trust
and the Portfolio have the requisite power and authority to own their property
and conduct their business as now being conducted and as proposed to be
conducted pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by AMR Trust on behalf of the Portfolio and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
action on the part of AMR Trust by its Board of Trustees and no other action or
proceeding is necessary for the execution and delivery of this Agreement by AMR
Trust, the performance by AMR Trust of its obligations hereunder and the
consummation by AMR Trust of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by AMR Trust and constitutes a
legal, valid and binding obligation of AMR Trust enforceable against it in
accordance with its terms.
(c) Authorization of Issuance of Interest. The issuance by the
Portfolio of the Interest in exchange for the Investment by the Fund of its
Assets has been duly authorized by all necessary action on the part of the Board
of Trustees of AMR Trust. When issued in accordance with the terms of this
Agreement, the Interest will be validly issued, fully paid and non-assessable by
the Portfolio.
(d) No Bankruptcy Proceedings. Neither AMR Trust nor the
Portfolio is under the jurisdiction of a court in a proceeding under Title 11 of
the Bankruptcy Code or similar case within the meaning of Section 368(a)(3)(A)
of the Bankruptcy Code.
(e) Fiscal Year. The fiscal year end of the Portfolio is
October 31.
(f) Auditors. The Portfolio has appointed Ernst & Young LLP as
the Portfolio's independent public accountants to certify the Portfolio's
financial statements in accordance with Section 32 of the 1940 Act.
(g) Registration Statement. AMR Trust and AMR have reviewed
the Conseco Trust's registration statement on Form N-1A which were provided to
the AMR Trust and AMR pursuant Section 3.1(h) of this Agreement to the extent
that such registration statement and exhibits relate to the Fund.
(h) Errors and Omissions Insurance Policy. AMR Trust and AMR
have in force an errors and omissions liability insurance policy insuring the
Portfolio against loss up to at least $10,000,000 for negligence or wrongful
acts.
(i) SEC Filings. AMR Trust has duly filed all SEC Filings
required to be filed with the SEC pursuant to the 1934 Act and the 1940 Act in
connection with any meetings of its investors and its registration as an
investment company. Beneficial interests in the Portfolio are not required to be
registered under the 1933 Act because such interests are offered solely in
private placement transactions that do not involve any "public offering" within
the meaning of Section 4(2) of the 1933 Act. The SEC Filings regarding the
Portfolio were prepared in accordance with the requirements of the Securities
Laws, as applicable, and the rules and regulations of the SEC thereunder, and do
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(j) 1940 Act Registration. AMR Trust is duly registered as an
open-end management investment company under the 1940 Act and such registration
is in full force and effect.
(k) Tax Status. The Portfolio is taxable as a partnership
under the Internal Revenue Code of 1986, as amended (the "Code").
3.3 AMR. AMR represents and warrants to the Conseco Trust and Adviser
that:
(a) Organization. AMR is a Delaware corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite power and authority to conduct its business as
now being conducted.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by AMR have been duly authorized by all necessary action on the
part of AMR and no other action or proceeding is necessary for the execution and
delivery of this Agreement by AMR. This Agreement has been duly executed and
delivered by AMR and constitutes a legal, valid and binding obligation of AMR.
(c) Advisers Act. AMR is duly registered as an investment
adviser under the Investment Advisers Act of 1940, as amended (the "Advisers
Act").
3.4 Adviser. Adviser represents and warrants to the AMR Trust and AMR
that:
(a) Organization. Adviser is a corporation validly existing
and in good standing under the laws of Delaware and has the requisite power and
authority to conduct its business as now being conducted.
(b) Authorization of Agreement. The execution and delivery of
this Agreement by Adviser have been duly authorized by all necessary action on
the part of Adviser and no other action or proceeding is necessary for the
execution and delivery of this Agreement by Adviser. This Agreement has been
duly executed and delivered by Adviser and constitutes a legal, valid and
binding obligation of Adviser.
ARTICLE IV
COVENANTS
4.1 The Conseco Trust and Adviser. The Conseco Trust and Adviser
covenant as follows:
(a) Advance Review of Certain Documents. Either the Conseco
Trust or Adviser will furnish to AMR Trust and AMR, at least five business days
prior to filing or first use, as the case may be, with a draft of any amendment
or supplement to its Form N-1A registration statement to the extent that such
document relates to the Fund. Any proposed advertisement or sales literature
relating to the Fund will be furnished to AMR Trust and AMR by the party
responsible for preparing such materials at least two business days prior to the
filing of such materials with appropriate regulators or first use, whichever is
sooner. The Conseco Trust and Adviser will include in all such materials which
relate to the Fund any disclosures that may be required by law, and will include
in all such materials any material comments reasonably made by AMR or AMR Trust
prior to such filing or first use. However, AMR and AMR Trust will not be liable
for any errors or omissions in such documents, whether or not they make any
objection thereto, except to the extent such errors or omissions result from
information provided by AMR or AMR Trust. The Conseco Trust and Adviser will not
make any other written or oral representation for general publication about the
AMR Trust or AMR without their prior written consent.
(b) Tax Status. The Fund will qualify for treatment as a
regulated investment company under Subchapter M of the Code for all fiscal
periods of the Fund and Portfolio during which this Agreement is in effect,
except to the extent a failure to so qualify may result from any action or
omission of the Portfolio.
(c) Investment Securities. The Fund will own no investment
security other than its Interest in the Portfolio.
(d) Proxy Voting. If requested to vote on matters pertaining
to AMR Trust or the Portfolio, the Fund will (1) call a timely meeting of
shareholders of the Fund for the purpose of seeking instructions from
shareholders regarding such matters, (2) vote the Fund's Interest proportionally
as instructed by Fund shareholders, and (3) vote the Fund's Interest with
respect to the shares held by Fund shareholders who do not give voting
instructions in the same proportion as the shares of Fund shareholders who do
give voting instructions.
(e) Auditors. As long as the Fund's independent public
accountants differ from those of the Portfolio, the Fund shall be responsible
for any reasonable costs and expenses associated with the need for the
Portfolio's independent public accountants to provide information to the Fund's
independent public accountants.
4.2 Indemnification by Adviser.
---------------------------
(a) Indemnification. Adviser will indemnify and hold harmless
AMR Trust, the Portfolio, AMR and their respective trustees, directors, officers
and employees and each other person who controls AMR Trust, the Portfolio or
AMR, as the case may be, within the meaning of Section 15 of the 1933 Act (each
a "Covered Person" and collectively "Covered Persons"), against any and all
losses, claims, demands, damages, liabilities and expenses (each a "Liability"
and collectively the "Liabilities") (including, unless Adviser elects to assume
the defense pursuant to paragraph (b), the reasonable cost of investigating and
defending against any claims therefor and any counsel fees incurred in
connection therewith), joint or several, which:
(1) arise out of any misstatement of a material fact or an omission of
a material fact provided by Adviser in the Conseco Trust's registration
statement (including amendments and supplements thereto) or in
advertisements or sales literature prepared by Adviser or an affiliate
of Adviser on behalf of the Conseco Trust, other than a misstatement or
omission arising from information provided by AMR Trust, the Portfolio
or AMR;
(2) result from the failure of any representation or warranty made by
Adviser to be accurate when made or the failure of such parties to
perform any covenant contained herein or otherwise to comply with the
terms of this Agreement; or
(3) arise out of any unlawful or negligent act or omission by Adviser
or any director, officer, employee or agent of Adviser;
provided, however, that in no case shall Adviser be liable with respect to any
claim made against any Covered Person unless the Covered Person shall have
notified Adviser in writing of the nature of the claim within a reasonable time
after the summons, other first legal process or formal or informal initiation of
a regulatory investigation or proceeding shall have been served upon or provided
to a Covered Person, or any federal, state or local tax deficiency has come to
the attention of Adviser, the Portfolio or a Covered Person. Failure to notify
Adviser of such claim shall not relieve it from any liability that it may have
to any Covered Person otherwise than on account of the indemnification contained
in this Section.
(b) Assumption of Defense. Adviser is entitled to participate
at its own expense in the defense or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but, if Adviser elects to assume
the defense, such defense shall be conducted by legal counsel acceptable to the
applicable Covered Persons, which acceptance shall not be unreasonably withheld
or delayed. In the event Adviser elects to assume the defense of any such suit
and retain such counsel, each Covered Person and any other defendant or
defendants may retain additional counsel, but shall bear the fees and expenses
of such counsel unless (1) Adviser shall have specifically authorized the
retaining of such counsel or (2) the parties to such suit include any Covered
Person and Adviser, and any such Covered Person has been advised by counsel that
one or more legal defenses may be available to it that may not be available to
Adviser, in which case Adviser shall not be entitled to assume the defense of
such suit notwithstanding its obligation to bear the fees and expenses of such
counsel. Adviser shall not be liable to indemnify any Covered Person for any
settlement of any claim affected without Adviser' written consent, which consent
shall not be unreasonably withheld or delayed. The indemnities set forth in
paragraph (a) will be in addition to any liability that the Adviser might
otherwise have to a Covered Person.
4.3 AMR and AMR Trust. AMR and AMR Trust, on behalf of the
Portfolio, covenants as follows:
(a) Advance Review of Certain Documents. AMR and AMR Trust
will furnish to the Conseco Trust or Adviser, at least five business days prior
to filing or first use, as the case may be, with a draft of any amendment or
supplement to its Form N-1A registration statement to the extent that such
document relates to any material change concerning the Portfolio. AMR and AMR
Trust will not make any written or oral representation for general publication
about the Conseco Trust, Fund or Adviser without their prior written consent.
(b) Tax Status. The Portfolio will qualify to be taxed as a
partnership under the Code for all periods during which this Agreement is in
effect, except to the extent that the failure to so qualify results in whole or
in part from any action or omission of the Fund.
(c) Availability of Interests. Conditional upon the Conseco
Trust complying with the terms of this Agreement, the Portfolio shall permit the
Fund to make additional Investments in the Portfolio on each business day on
which shares of the Fund are sold to the public; provided, however, that the
Portfolio may refuse to permit the Fund to make additional Investments in the
Portfolio on any day on which (1) the Portfolio has refused to permit all other
investors in the Portfolio to make additional Investments in the Portfolio or
(2) the Trustees of the Portfolio have reasonably determined that permitting
additional Investments by the Fund in the Portfolio could constitute a breach of
their fiduciary duties to the Portfolio.
4.4 Indemnification by AMR.
-----------------------
(a) Indemnification. AMR will indemnify and hold harmless the
Conseco Trust, the Fund, Adviser, their respective trustees, directors, officers
and employees and each other person who controls the Conseco Trust, the Fund or
Adviser, as the case may be, within the meaning of Section 15 of the 1933 Act
(each a "Covered Person" and collectively, "Covered Persons"), against any and
all losses, claims, demands, damages, liabilities and expenses (each a
"Liability" and collectively the "Liabilities") (including, unless AMR elects to
assume the defense pursuant to paragraph (b), the reasonable costs of
investigating and defending against any claims therefor and any counsel fees
incurred in connection therewith), joint or several, including liabilities
incurred directly by the Conseco Trust, the Fund or Adviser or indirectly by the
Conseco Trust, the Fund or Adviser through the Fund's Investment in the
Portfolio, which
(1) arise out of or are based upon any Securities Laws, any other
statute or common law or are incurred in connection with or as a result
of any formal or informal administrative proceeding or investigation by
a regulatory agency, insofar as such Liabilities arise out of or are
based upon the ground or alleged ground that any direct or indirect
omission or commission by AMR or the Portfolio (either during the
course of its daily activities or in connection with the accuracy of
its representations or its warranties in this Agreement) caused or
continues to cause the Adviser, the Conseco Trust or the Fund to
violate any federal or state securities laws or regulations or any
other applicable domestic or foreign law or regulations or common law
duties or obligations, but only to the extent that such Liabilities do
not arise out of and are not based upon an omission or commission of
the Conseco Trust, Fund or Adviser;
(2) arise out of the Portfolio or AMR having caused the Conseco Trust
or the Fund to fail to qualify as a regulated investment company under
the Code;
(3) arise out of any misstatement of a material fact or an omission of
a material fact in the AMR Trust's registration statement (including
amendments and supplements thereto) or included at the request of AMR
or the Portfolio in advertising or sales literature used by the Fund,
other than a misstatement of a material fact or an omission arising
from information provided by the Conseco Trust, Fund or Adviser;
(4) result from the failure of any representation or warranty made by
the AMR Trust, the Portfolio or AMR to be accurate when made or the
failure of such parties to perform any covenant contained herein or
otherwise to comply with the terms of this Agreement; or
(5) arise out of any unlawful or negligent act or omission by the
Portfolio, AMR or any director, trustee, officer, employee or agent of
such persons;
provided, however, that in no case shall AMR be liable with respect to any claim
made against any such Covered Person unless such Covered Person shall have
notified AMR in writing of the nature of the claim within a reasonable time
after the summons, other first legal process or formal or informal initiation of
a regulatory investigation or proceeding shall have been served upon or provided
to a Covered Person or any federal, state or local tax deficiency has come to
the attention of the Conseco Trust, Adviser or a Covered Person. Failure to
notify AMR of such claim shall not relieve it from any liability that it may
have to any Covered Person otherwise than on account of the indemnification
contained in this paragraph.
(b) Assumption of Defense. AMR is entitled to participate at
its own expense in the defense or, if it so elects, to assume the defense of any
suit brought to enforce any such liability, but, if AMR elects to assume the
defense, such defense shall be conducted by legal counsel acceptable to the
applicable Covered Persons, which consent shall not be unreasonably withheld or
delayed. In the event AMR elects to assume the defense of any such suit and
retain such counsel, each Covered Person and any other defendant or defendants
in the suit may retain additional counsel but shall bear the fees and expenses
of such counsel unless (1) AMR shall have specifically authorized the retaining
of such counsel or (2) the parties to such suit include any Covered Person and
AMR, and any such Covered Person has been advised by counsel that one or more
legal defenses may be available to it that may not be available to AMR, in which
case AMR shall not be entitled to assume the defense of such suit
notwithstanding the obligation to bear the fees and expenses of such counsel.
AMR shall not be liable to indemnify any Covered Person for any settlement of
any such claim effected without AMR's written consent, which consent shall not
be unreasonably withheld or delayed. The indemnities set forth in paragraph (a)
will be in addition to any liability that the AMR Trust in respect of the
Portfolio might otherwise have to a Covered Person.
4.5 In-Kind Redemption. If the Fund desires to withdraw or redeem all
of its Interests in the Portfolio, the Portfolio can effect such redemption "in
kind" and in such a manner that the securities delivered to the Fund's custodian
for the account of the Fund will mirror, as closely as practicable, the
composition of the Portfolio immediately prior to such redemption. No other
withdrawal or redemption of any Interest in the Portfolio will be satisfied by
means of an "in kind" redemption except in compliance with Rule 18f-1 under the
1940 Act.
4.6 Reasonable Actions. Each party covenants that it will, subject to
the provisions of this Agreement, from time to time, as and when requested by
another party or in its own discretion, as the case may be, execute and deliver
or cause to be executed and delivered all such assignments and other
instruments, take or cause to be taken such actions, and do or cause to be done
all things reasonably necessary, proper or advisable in order to consummate the
transactions contemplated by this Agreement and to carry out its intent and
purpose.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions Precedent. The obligations of each party to consummate
the transactions provided for herein shall be subject to (a) performance by such
other parties of all the obligations to be performed by the other parties
hereunder on or before each Closing, and (b) all representations and warranties
of the other parties contained in this Agreement being true and correct in all
material respects as of the date hereof and, except as they may be affected by
the transactions contemplated by this Agreement, as of each date of Closing,
with the same force and effect as if made on and as of the time of such Closing.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Notification of Certain Matters. Each party will give prompt notice
to the other parties of (a) the occurrence or non-occurrence of any event the
occurrence or non-occurrence of which would be likely to cause either (1) any
representation or warranty contained in this Agreement to be untrue or
inaccurate, or (2) any condition precedent set forth in Article V hereof to be
unsatisfied in any material respect at the time of any Closing and (b) any
material failure of a party or any trustee, director, officer, employee or agent
thereof to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by such person hereunder; provided, however, that the
delivery of any notice pursuant to this Section 6.1 shall not limit or otherwise
affect the remedies available, hereunder or otherwise, to the party receiving
such notice.
6.2 Access to Information. The Portfolio and the Fund shall afford each
other access at all reasonable times to such party's officers, employees and
agents and to all its relevant books and records and shall furnish each other
party with all relevant financial and other data and information as reasonably
requested; provided, however, that nothing contained herein shall obligate any
party to provide another party with access to their books and records as they
relate to any series of the Conseco Trust or AMR Trust other than the Fund or
the Portfolio respectively, except as may be required to comply with applicable
law or any provision of this Agreement.
6.3 Confidentiality. Each party agrees that it shall hold in strict
confidence all data and information obtained from another party (unless such
information is or becomes readily ascertainable from public or published
information or trade sources) and shall ensure that its officers, employees and
authorized representatives do not disclose such information to others without
the prior written consent of the party from whom it was obtained, except if
disclosure is required by the SEC, any other regulatory body or the Fund's or
Portfolio's respective auditors, or in the opinion of counsel such disclosure is
required by law, and then only with as much prior written notice to the other
party as is practical under the circumstances.
6.4 Public Announcements. No party shall issue any press release or
otherwise make any public statements with respect to the matters covered by this
Agreement without the prior consent of the other parties hereto, which consent
shall not be unreasonably withheld; provided, however, that consent shall not be
required if, in the opinion of counsel, such disclosure is required by law,
provided further, however, that the party making such disclosure shall provide
the other parties hereto with as much prior written notice of such disclosure as
is practical under the circumstances.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination.
(a) This Agreement may be terminated by the mutual agreement of
all parties.
(b) This Agreement may be terminated at any time by the Conseco Trust
by redeeming all of the Fund's Interests in the Portfolio.
(c) This Agreement may be terminated on not less than 60 days'
prior written notice by AMR or the AMR Trust to the Fund and Adviser.
(d) This Agreement may be terminated immediately at any time upon
written notice to the other parties in the event that formal proceedings are
instituted against another party to this Agreement by the SEC or any other
regulatory body relating to the Fund or the Portfolio, provided that the
terminating party has a reasonable belief that the institution of the proceeding
is not without foundation and will have a material adverse impact on the
terminating party.
(e) The indemnification obligations in Article IV shall survive the
termination of this Agreement.
7.2 Amendment. This Agreement may be amended, modified or supplemented
at any time in such manner as may be mutually agreed upon in writing by the
parties.
7.3 Waiver. At any time prior to any Closing, any party may (a) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein.
ARTICLE VIII
DAMAGES
8.1 Damages. The parties agree that, if this Agreement is breached, the
remedy of money damages would not be adequate and agree that injunctive relief
would be the appropriate relief.
ARTICLE IX
GENERAL PROVISIONS
9.1 Notices. All notices and other communications given or made
pursuant hereto shall to in writing and shall be deemed to have been duly given
or made when actually received in person or by fax, or three days after being
sent by certified or registered United States mail, return receipt requested,
postage prepaid, addressed as follows:
If to AMR or AMR Investment Services, Inc.
AMR Trust: 0000 Xxxx Xxxxxx Xxxxxxxxx, XX-0000
Xxxx Xxxxx, Xxxxx 00000
Attn.: Xxxxx X. Xxxxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
If to the Conseco Trust:
or the Fund
Conseco Services LLC
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Adviser: Conseco Capital Management
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxx
Cc: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
9.2 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
9.3 Headings. The headings and captions contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.4 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
9.5 Entire Agreement. This Agreement and the agreements and other
documents delivered pursuant hereto set forth the entire understanding between
the parties concerning the subject matter of this Agreement and incorporate or
supersede all prior negotiations and understandings. There are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them relating to the subject matter of this Agreement other than those
set forth herein. No representation or warranty has been made by or on behalf of
any party to this Agreement (or any officer, director, trustee, employee or
agent thereof) to induce any other party to enter into this Agreement or to
abide by or consummate any transactions contemplated by any terms of this
Agreement, except representations and warranties expressly set forth herein.
9.6 Successors and Assignments. Each and all of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and, except as otherwise specifically provided in this Agreement, their
respective successors and assigns. Notwithstanding the foregoing, no party shall
make any assignment of this Agreement or any rights or obligations hereunder
without the written consent of all other parties. As used herein, the term
"assignment" shall have the meaning ascribed thereto in the 1940 Act.
9.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without giving effect to the
choice of law or conflicts of law provisions thereof.
9.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing one or more counterparts.
9.9 Third Parties. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give any person, other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
9.10 Interpretation. Any uncertainty or ambiguity existing herein shall
not presumptively be interpreted against any party, but shall be interpreted
according to the application of the rules of interpretation for arm's length
agreements.
9.11 Limitation of Liability. The parties acknowledge that the Conseco
Trust and AMR Trust have entered into this Agreement solely on behalf of the
Fund and Portfolio, respectively, and that no other series of Conseco Trust or
AMR Trust shall have any obligation hereunder with respect to any liabilities
arising hereunder. The parties further acknowledge and agree that the
obligations of the AMR Trust and Conseco Trust under this Agreement are not
personally binding upon any shareholder or trustee of the AMR Trust or Conseco
Trust, but bind only the property of the Portfolio and the Fund, respectively.
The Adviser and the Conseco Trust represent that they have notice of the
provisions of the Declaration of Trust of the AMR Trust disclaiming shareholder
liability for acts or obligations of the AMR Trust. AMR and the AMR Trust
represent that they have notice of the provisions of the Declaration of Trust of
the Conseco Trust disclaiming shareholder liability for acts or obligations of
the Conseco Trust.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
first written above.
AMR INVESTMENT SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: President
--------------------------
AMR INVESTMENT SERVICES TRUST,
on behalf of itself and
the International Equity
Portfolio, a series thereof
By /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------
Title: President
--------------------------
CONSECO FUND GROUP,
on behalf itself and
the International Fund, a
series thereof
By /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
---------------------------
Title: Senior Vice President
--------------------------
CONSECO CAPITAL MANAGEMENT, INC.
By /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
---------------------------
Title: Senior Vice President
--------------------------
