ADMINISTRATION AGREEMENT
BETWEEN CONSECO FUND GROUP
AND
CONSECO SERVICES LLC
THIS ADMINISTRATION AGREEMENT is entered into as of this 2nd 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
"Administrator"), 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 Administrator to
provide administrative services, and the Administrator 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 ADMINISTRATOR
1.1 Subject to the terms and conditions set forth in this Agreement, the
Trust, on behalf of the Funds, hereby engages the Administrator to
provide, and the Administrator 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 Administrator agrees that it will perform the following services:
(a) The Administrator shall provide administrative services on behalf
of the Funds which may be agreed upon in writing between the
Trust and the Administrator and will include (i) furnishing the
Funds with such office space, equipment, and personnel as needed
in connection with their operation, (ii) 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, (iii)
monitoring and documenting compliance by the Funds with
applicable investment policies and restrictions, (iv) furnishing
clerical and bookkeeping services as needed by the Funds in
connection with their operation, including but not limited to
establishing appropriate expense accruals, maintaining expense
files and coordinating payment of invoices, (v) supervising the
maintenance of books and records, (vi) fund accounting, (vii)
assisting in the preparation of annual and other reports to
shareholders of the Funds, the Securities and Exchange Commission
and any appropriate governmental body, (viii) monitoring and
reporting on compliance with NASD rules, (ix) monitoring and
reporting on compliance with applicable Internal Revenue Code
provisions and regulations, (x) reviewing and filing any federal,
state and local income tax returns pertaining to the Funds as
requested by the Trust, (xi) providing Blue Sky services, (xii)
preparing for meetings of the Trust's Board of Trustees and
shareholders, (xiii) permitting its officers and employees to
serve without compensation as Trustees or officers of the Trust
if elected to such positions, (xiv) 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 (xv) in general, supervising the performance of the
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 Administrator pursuant to this Agreement, the
Trust agrees on behalf of the Funds to pay the Administrator 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 Administrator.
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2.2 In addition to the fees paid under Section 2.1 above, the Trust agrees on
behalf of the Funds to reimburse the Administrator for any extraordinary
expenses incurred by the Administrator 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 reimbursable
expenses promptly. The Administrator will xxxx the Trust monthly in
arrears.
3. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR AND THE TRUST
3.1 The Administrator 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) All 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 Administrator 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.
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4. CONFIDENTIALITY
Subject to the duty of the Trust or the Administrator 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.
5. INDEMNIFICATION
The Administrator 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 Administrator harmless from, any
and all losses, expenses and liability arising out of the Administrator's
activities hereunder, except for willful misconduct, bad faith or
negligence of the Administrator or that of its employees or the reckless
disregard by the Administrator 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 Administrator 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 Administrator 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 ADMINISTRATOR
The Administrator 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 Administrator agrees that all said records prepared or
maintained by the Administrator 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 Administrator render administrative services under the terms hereof,
it shall so notify the Administrator in writing. If the Administrator
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 Administrator may, without further consent on the part of the Trust,
subcontract for the performance hereof with an affiliate or a
non-affiliate of the Administrator, provided, however, that the
Administrator 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 Administrator shall 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.
l 3. 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.
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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: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx President
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Xxxxxxx X. Xxxxxxx [Title]
CONSECO SERVICES LLC
ATTEST: By: /s/ X.X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx President
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Xxxx X. Xxxxxx [Title]
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