EXHIBIT 99.2k(2)
FORM OF SHAREHOLDER SERVICING AGREEMENT
SHAREHOLDER SERVICING AGREEMENT (the "Agreement"), dated July __, 1998,
between Conseco Strategic Income Fund (the "Fund") and Conseco Services LLC
("Conseco Services").
WHEREAS, the Fund is a closed-end, non-diversified management investment
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"), and its shares of beneficial interest are registered under the
Securities Act of 1933, as amended; and
WHEREAS, the Fund desires to retain Conseco Services to provide shareholder
servicing and market information with respect to the Fund, and Conseco Services
is willing to render such services;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth below, the parties hereto agree as follows:
1. The Fund hereby employs Conseco Services, for the period and on the
terms and conditions set forth herein, to provide the following services:
(a) Undertake to make public information pertaining to the Fund on an
ongoing basis and to communicate to investors and prospective investors the
Fund's features and benefits (including periodic seminars or conference calls,
responses to questions from or current or prospective shareholders and specific
shareholder contact where appropriate);
(b) Make available to investors and prospective investors market price,
net asset value, yield and other information regarding the Fund, if reasonably
obtainable, for the purpose of maintaining the visibility of the Fund in the
investor community;
(c) At the request of the Fund, provide certain economic research and
statistical information and reports, if reasonable obtainable, on behalf of the
Fund and consult with representatives and Trustees of the Fund in connection
therewith, which information and reports shall include: (i) statistical and
financial market information with respect to the Fund's market performance; and
(ii) comparative information regarding the Fund and other closed-end management
investment companies with respect to (x) the net asset value of their respective
shares, (y) the respective market performance of the Fund and such other
companies, and (z) other relevant performance indicators; and
(d) At the request of the Fund, provide information to and consult with
the Board of Trustees of the Fund with respect to applicable strategies designed
to address market value discounts, which may include share repurchases, tender
offers, modifications to dividend policies or capital structure, repositioning
or restructuring of the Fund, conversion of the Fund to an open-end investment
company, liquidation or merger, including providing information concerning the
use and impact of the above strategic alternatives by other market participants.
2. The Fund will pay Conseco Services a fee computed weekly and monthly
quarterly at an annualized rate of 0.10% of the Fund's average weekly value of
the total assets of
the Fund minus the sum of accrued liabilities (other than the aggregate
indebtedness constituting financial leverage).
3. The Fund acknowledges that the shareholder services of Conseco Services
provided for hereunder do not include any advice as to the value of securities
or regarding the advisability of purchasing or selling any securities for the
Fund's portfolio. No provision of this Agreement shall be considered as
creating, nor shall any provision create, any obligation on the part of Conseco
Services, and Conseco Services is not hereby agreeing, to: (i) furnish any
advice or make any recommendations regarding the purchase or sale of portfolio
securities or (ii) render any opinions, valuations or recommendations of any
kind or to perform any such similar services in connection with providing the
services described in Section 1 hereof.
4. Nothing herein shall be construed as prohibiting Conseco Services or its
affiliates from providing similar or other services to any other clients
(including other registered investment companies or the investment managers
thereof), so long as Conseco Services' services to the Fund is not impaired
thereby.
5. The term of this Agreement shall commence upon the date referred to
above, shall be in effect for a period of two years and shall thereafter
continue for successive one year periods provided that the agreement may be
terminated by either party upon 60 days written notice of the intention to
terminate.
6. The Fund will furnish Conseco Services with such information as Conseco
Services believes appropriate to its assignment hereunder (all such information
so furnished being the "Information"). The Fund recognizes and confirms that
Conseco Services (a) will use and rely primarily on the Information and on
information available from generally recognized public sources in performing the
services contemplated by this Agreement without having independently verified
the same and (b) does not assume responsibility for the accuracy or completeness
of the Information and such other information. To the best of the Fund's
knowledge, the Information to be furnished by the Fund when delivered, will be
true and correct in all material respects and will not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements contained therein not misleading. The Fund will promptly notify
Conseco Services if it learns of any material inaccuracy or misstatement in, or
material omission from, any Information thereto delivered to Conseco Services.
7. It is understood that Conseco Services is being engaged hereunder solely
to provide the services described above to the Fund and that Conseco Services is
not acting as an agent or fiduciary of, and shall have no duties or liability to
the current or future shareholders of the Fund, the current or future
shareholders of the Fund or any other third party in connection with its
engagement hereunder, all of which are hereby expressly waived.
8. The Fund agrees that Conseco Services shall have no liability to the
Fund of its shareholders for any act or omission to act by Conseco Services in
the course of its performance under this Agreement, in the absence of gross
negligence or willful misconduct on the part of Conseco Services. The Fund
agrees to the indemnification and other agreements set forth in the
Indemnification Agreement attached hereto, the provisions of which are
incorporated herein by reference and shall survive the termination, expiration
or supersession of this Agreement.
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9. No provision of this Agreement shall be construed to protect any
Trustee or officer of the Fund, or any director or officer of Conseco Services,
from liability to which such person would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence on the part of such person,
or reckless disregard by such person of obligations or duties hereunder.
10. This Agreement shall be construed in accordance with the laws of the
State of Indiana for contracts to be performed entirely therein and without
regard to the choice of law principles thereof.
11. This Agreement may not be assigned by either party without the prior
written consent of the other party.
12. This Agreement (including the attached Indemnification Agreement)
embodies the entire agreement and understanding between the parties hereto and
supersedes all prior agreements and understandings relating to the subject
matter hereof. If any provision of this Agreement is determined to be invalid or
unenforceable in any respect, such determination will not affect such provision
in any other respect or any other provision of this Agreement, which will remain
in full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an instrument in writing signed by both Conseco
Services and the Fund.
13. All notices required or permitted to be sent under this Agreement shall
be sent, if to the Fund:
Conseco Strategic Income Fund
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
or if to Conseco Services:
Conseco Services LLC
00000 X. Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
Attention:
or such other name or address as may be given in writing to the other parties.
Any notice shall be deemed to be given or received on the third day after
deposit in the U.S. mail with certified postage prepaid or when actually
received, whether by hand, express delivery service or facsimile transmission,
whichever is earlier.
14. This Agreement may be exercised on separate counterparts, each of which
is deemed to be an original and all of which taken together constitute one and
the same agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Shareholder
Servicing Agreement as of the date first above written.
CONSECO STRATEGIC INCOME FUND
By:
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Name:
Title:
CONSECO SERVICES LLC
By:
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Name:
Title:
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