SERVICE AGREEMENT
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN REDACTED BECAUSE IT IS BOTH NOT MATERIAL AND WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
AGREEMENT dated as of January 1, 2001. between Xxxx Xxxxx Management. Inc. (“Xxxxx”), a New York Corporation with its principal offices at 0 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000, as Investment Adviser for The Xxxxx American Fund (the “Fund”). and Conseco Variable Insurance Company (the “Company”), a Texas corporation having its principal office and place of business at 00000 X. Xxxxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
In consideration of the promises and mutual covenants set forth in this Agreement, the Parties agree as follows:
| 1. | Services Provided |
The Company agrees to provide services to the Fund including the following:
| a) | responding to inquiries from the Company Contract owners using one or more Portfolios of the Fund as an investment vehicle regarding the services performed by the Company as they relate to the Fund; |
| b) | providing information to Xxxxx and to Contract owners with respect to shares attributable to Contract owner accounts; |
| c) | printing and mailing of shareholder communications from the Fund consistent with the Participation Agreement dated__________ (such as proxies, shareholder reports, annual and semi-annual financial statements and dividend, distribution and tax notices) as may be required; |
| d) | communication directly with Contract owners concerning the Fund’s operations; |
| e) | providing such other similar services as Xxxxx may reasonably request pursuant to the extent permitted or required under applicable statutes, rules, and regulations. |
| 2. | Expense Allocation |
Subject to Paragraph 3 hereof, the Company or its affiliates shall initially bear the costs of the following:
| a) | printing and distributing the Fund’s prospectus, statement of additional information and any amendments or supplements thereto, periodic reports to shareholders, Fund proxy material and other shareholder communications (collectively, the “Fund Materials”) to be distributed to prospective Contract owners; |
| b) | printing and distributing all sales literature or promotional material developed by the Company or its affiliates and relating to the contracts; |
| c) | servicing Contract owners who have allocated Contract value to a Portfolio, which servicing shall include, but is not limited to, the items listed in Paragraph 1 of this Agreement. |
| 3. | Payment of Expenses |
| a) | Xxxxx will pay the Company a quarterly fee equal to a percentage of the average daily net assets of the Portfolios attributable to Contracts, at the annual rate set forth in the following schedule (“Portfolio Servicing Fee”), in connection with the expenses incurred by the Company under Paragraph 2 hereof: [**] percent annually of all assets payable quarterly. |
| b) | From time to time, the Parties hereto shall review the Portfolio Servicing Fee to determine whether it reasonably approximates the incurred and anticipated costs, over time of the Company in connection with its duties hereunder. The Parties agree to negotiate in good faith any change to the Portfolio Servicing Fee proposed by a Party in good faith. |
| 4. | Term of Agreement |
This Agreement shall continue in effect for so long as Xxxxx or its successor(s) in interest, or any affiliate thereof, continues to perform in a similar capacity for the Fund, and for so long as any Contract value or any monies attributable to the Company is allocated to a Portfolio, provided, however, that either party may Terminate this Agreement upon a material breach of this Agreement by the other party that remains uncured for 60 days after written notice by the terminating party. However, Portfolio Servicing Fees shall in no event be paid to the Company more than one year after the termination of this Agreement.
| 5. | Indemnification |
| a) | The Company agrees to indemnify and hold harmless Xxxxx and its officers, directors and affiliates from any and all loss, liability and expense resulting from the gross negligence or willful wrongful act of the Company under this Agreement, except to the extent such loss, liability or expense is the result of the willful misfeasance. bad faith or gross negligence of Xxxxx in the performance of its duties, or by reason of the reckless disregard of its obligations and duties under this Agreement. |
| b) | Xxxxx agrees to indemnify and hold harmless the Company and its officers. directors and affiliates from any and all loss, liability and expense resulting from the gross negligence or willful wrongful act of Xxxxx under this Agreement, except to the extent such loss, liability or expense is the result of the willful misfeasance, bad faith or gross negligence of the Company in the performance of its duties, or by reason of the reckless disregard of its obligations and duties under this Agreement. |
| 6. | Notice |
Notices and communications required or permitted hereby will be given to the following persons at the following addresses and facsimile numbers, or such other persons, addresses or facsimile numbers as the Party receiving such notices or communications may subsequently direct in writing:
Xxxx Xxxxx Management, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
| 7. | Applicable Law |
Except insofar as the Investment Company Act of 1940 or other federal laws and regulations may be controlling, this Agreement will be construed and the provisions hereof interpreted under and in accordance with New York law, without regard for that state’s principles of conflict of laws.
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| 8. | Severability |
If any provision of this Agreement is held or made invalid by a court decision, statute, rule or otherwise, the remainder of this Agreement will not be affected thereby.
| 9. | Rights Cumulative |
The rights, remedies and obligations contained in this Agreement are cumulative and are in addition to any and all rights, remedies and obligations, at law or in equity, that the Parties are entitled to under federal and state laws.
| 10. | Assignment |
Neither this Agreement nor any rights or obligations hereunder may be assigned by either party without the prior written consent of the other party thereto.
| 11. | Amendment |
This Agreement may be amended or modified in whole or in part only by a written agreement executed by both parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers signing below.
| XXXX XXXXX MANAGEMENT, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Xxxxxxx X. Xxxx | ||
| Executive Vice President | ||
| CONSECO VARIABLE INSURANCE COMPANY | ||
| By: | /s/ [illegible] | |
| Name: | ||
| Title: | ||
