AMENDED AND RESTATED 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 ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and Conseco Services LLC (the
"Administrator"), an Indiana limited liability company having its principal
office and place of business at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and
is amended as of December 31, 1997.
WITNESSETH:
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end diversified management investment
company;
WHEREAS, the Trust has established several separate series of shares, each
of which represents a separate portfolio of investments, and may establish
additional series of shares (each series now or hereafter listed on Schedule A
hereto, as such schedule may be amended from time to time, shall be referred to
herein as a "Fund"); and
WHEREAS, the Trust desires to retain the administrator to provide
administrative services to each Fund, and the Administrator is willing to
provide said services directly or through other entities;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties mutually agree as follows:
1. Employment; Duties Of The Administrator
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1.1 The Trust hereby employs the Administrator as administrator of each Fund,
and the Administrator agrees to provide the services set forth herein in
return for the compensation under Paragraph 2.
1.2 Subject to the supervision and direction of the Board of Trustees of the
Trust (the "Trustees"), the Administrator shall supervise each Fund's
business and affairs and shall provide the services required for the
effective administration of each Fund to the extent not otherwise provided
by employees, agents or contractors of the Trust. These services shall
include: (i) furnishing, without cost to each Fund, such office space,
equipment, facilities and personnel as needed in connection with the
Fund's operations, (ii) supervising the preparation and filing of all
documents required for compliance by each Fund with the federal and state
securities laws, (iii) monitoring and reporting on compliance by each Fund
with its investment policies and restrictions, (iv) furnishing clerical
and bookkeeping services as needed by each Fund in connection with its
operation (including establishing appropriate expense accruals,
maintaining expense files and coordinating payment of invoices), (v)
maintaining the books and records required by the 1940 Act, (vi) fund
accounting, (vii) assisting in the preparation and distribution of annual
and other reports to shareholders of each Fund, (viii) monitoring and
reporting on compliance with NASD rules, (ix) monitoring and reporting on
compliance with applicable Internal Revenue Code provisions and
regulations, (x) supervising the preparation and filing of any federal,
state and local income tax returns, (xi) preparing for meetings of the
Trustees and shareholders, (xii) permitting its directors, officers and
employees to serve, without compensation from the Trust or each Fund, as
Trustees or officers of the Trust, (xiii) overseeing the determination and
publication of each Fund's net asset value per share in accordance with
the Fund's policies, and (xiv) overseeing relations with, and the
performance of, agents engaged by the Trust, such as its transfer agent,
custodian, independent accountants and legal counsel. Nothing contained
herein shall be deemed to relieve or deprive the Trustees of their
responsibility for and control of the conduct of the affairs of the Trust
or the Funds.
1.3 The administrative services provided hereunder will exclude (i) portfolio
custodial services provided by the Trust's custodian, (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. Administration Fees
-------------------
2.1 As compensation for the services rendered and the expenses assumed by the
Administrator pursuant to this Agreement, each Fund shall pay the
Administrator a fee computed at the annual rate set forth on Schedule A,
as such schedule may be amended from time to time.
2.2 The administration fee shall be accrued daily by each Fund and paid to the
Administrator at the end of each calendar month. In the case this
Agreement becomes effective or terminates with respect to any Fund before
the end of any month, the administration fee for that month shall be
calculated on the basis of the number of business days during which it is
in effect for that month.
3. Expenses
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Each Fund shall bear all expenses of its operation (including its
proportionate share of the general expenses of the Trust) not specifically
assumed by the Administrator. Expenses borne by each Fund shall include,
but are not limited to, (i) organizational and offering expenses of the
Fund and expenses incurred in connection with the issuance of shares of
the Fund; (ii) fees of the Trust's custodian and transfer agent; (iii)
expenditures in connection with meetings of shareholders and Trustees,
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other than those called solely to accommodate the Administrator; (iv)
compensation and expenses of Trustees who are not interested persons of
the Trust or the Administrator ("Disinterested Trustees"); (v) the costs
of any liability, uncollectible items of deposit and other insurance or
fidelity bond; (vi) the cost of preparing, printing, and distributing
prospectuses and statements of additional information, any supplements
thereto, proxy statements, and reports for existing shareholders; (vii)
legal, auditing, and accounting fees; (viii) trade association dues; (ix)
filing fees and expenses of registering and maintaining registration of
shares of the Fund under applicable federal and state securities laws; (x)
brokerage commissions; (xi) taxes and governmental fees; and (xii)
extraordinary and non-recurring expenses.
4. Representations And Warranties Of The Administrator And The Trust
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4.1 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.
4.2 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) A registration statement under the Securities Act of 1933, as
amended, and the 1940 Act 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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5. Confidentiality
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Subject to the duty of the Trust or the Administrator to comply with
applicable law, each party agrees, on its own behalf and on behalf of its
employees, agents and contractors, to treat as confidential all
information with respect to the other party received pursuant to this
Agreement.
6. Delegation Of Duties
--------------------
The Administrator may delegate to a sub-administrator the performance of
any or all of its duties hereunder with respect to one or more Funds. The
Administrator shall be responsible to the Trust and the Funds for the acts
and omissions of any sub-administrator to the same extent as it is for its
own acts and omissions. The Administrator shall compensate any
sub-administrator retained pursuant to this Agreement out of the fees it
receives pursuant to Paragraph 2 above.
7. Liability
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7.1 The Administrator and its officers, directors or employees shall not be
liable for, and each Fund shall indemnify and hold the Administrator
harmless from, any and all losses, damages, or expenses resulting from any
action taken or omitted to be taken by the Administrator hereunder, except
a loss, damage or expense resulting from willful misfeasance, bad faith or
negligence of the Administrator or that of its officers, directors or
employees or the reckless disregard by the Administrator or its officers,
directors or employees of 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.
7.2 A copy of the Trust's Agreement and Declaration of Trust is on file with
the Secretary of the Commonwealth of Massachusetts, and notice is hereby
given that this Agreement is executed on behalf of the Trustees as
Trustees and not individually. The Administrator acknowledges and agrees
that the obligations of a Fund hereunder are not binding upon any of the
Trustees or shareholders of the Fund personally but are binding only upon
the assets and property of that Fund and no other.
8. Fund Records
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In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Administrator agrees that all records which it maintains on behalf of the
Trust are the property of the Trust, will be preserved for the periods
prescribed by Rule 31a-2 under the 1940 Act, and will be surrendered
promptly to the Trust upon request.
9. Additional Funds
----------------
In the event that the Trust establishes one or more series of shares with
respect to which it desires to have the Administrator render services
under this Agreement, it shall so notify the Administrator in writing. If
the Administrator agrees in writing to provide said services, such series
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of shares shall become a Fund hereunder upon execution of a new Schedule A
and approved by the Trustees.
10. Term Of Agreement
-----------------
This Agreement, as amended, shall become effective on the date above
written and shall continue in effect for two years from such date unless
sooner terminated as hereinafter provided. Thereafter, this Agreement
shall continue in effect with respect to each Fund from year to year so
long as such continuation is approved at least annually for each Fund by
(i) the Trustees or by the vote of a majority of the outstanding voting
securities of the Fund and (ii) the vote of a majority of the
Disinterested Trustees, with such vote being cast in person at a meeting
called for the purpose of voting on such approval.
11. Termination
-----------
This Agreement may be terminated by either party upon sixty (60) days'
prior written notice to the other. Termination of this Agreement with
respect to one Fund shall not affect the continued effectiveness of this
Agreement with respect to any other Fund.
12. Amendment
---------
This Agreement may be amended or modified by a written agreement executed
by both parties and authorized or approved by the Trustees.
13. Assignment
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Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written consent of the other
party. This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
14. Applicable Law
--------------
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of the State of Indiana, except
insofar as the 1940 Act may be controlling.
15. DEFINITIONS
------------
As used in this Agreement, the terms "majority of the outstanding voting
securities," "interested persons," and "assignment" shall have the meaning
as set forth in the 1940 Act. In addition, when the effect of a
requirement of the 1940 Act reflected in any provision of this Agreement
is modified, interpreted or relaxed by a rule, regulation or order of the
Securities and Exchange Commission, whether of special or of general
application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order.
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16. Severability
------------
The provisions of this Agreement shall be considered severable and if any
provision of this Agreement is deemed to be invalid or contrary to any
existing or future law, such invalidity shall not impair the operation of
or affect any other provision of this Agreement which is valid.
17. 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.
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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
CONSECO SERVICES LLC
ATTEST: By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
CONSECO FUND GROUP
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
SCHEDULE A
SERIES ANNUAL FEE
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Conseco Equity Fund .20%
Conseco Asset Allocation Fund .20%
Conseco Fixed Income Fund .20%
Conseco 20 Fund .20%
Conseco High Yield Fund .20%
Conseco International Fund .75%