SUB-ADMINISTRATION AGREEMENT
----------------------------
AGREEMENT made as of January 2, 1997, by and between Conseco Services
L.L.C. (the "Administrator"), the Administrator of the Conseco Fund Group (the
"Trust") and each portfolio series of the Fund listed on Exhibit A hereto (each,
a "Fund"; collectively, the "Funds"), and The Bank of New York, a New York trust
company (the "Sub-Administrator").
W I T N E S S E T H:
--------------------
WHEREAS, the Administrator is an Indiana limited liability company acting
pursuant to an Administration Agreement dated as of January 2, 1997 between the
Administrator and the Trust;
WHEREAS, the Trust is an investment company registered under the
Investment Administrator Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Administrator desires to retain the Sub-Administrator as its
agent to provide administration services for the Trust and each Fund and the
Sub-Administrator is willing to provide such services, all as more fully set
forth below;
NOW THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
-----------
The Administrator hereby appoints the Sub-Administrator as its agent for
the term of this Agreement to perform the services described herein for the
Trust and each Fund. The Sub-Administrator hereby accepts such appointment and
agrees to perform the duties hereinafter set forth.
2. Representations And Warranties.
------------------------------
The Administrator hereby represents and warrants to the Sub-Administrator,
which representations and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the jurisdiction
of its organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the
Administrator in accordance with all requisite action and constitutes a valid
and legally binding obligation of the Administrator, enforceable in accordance
with its terms;
(c) The Administrator has been duly authorized by the Trust to
appoint the Sub-Administrator to perform its responsibilities hereunder; and
(d) It is conducting its business in compliance with all applicable laws
and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding on
it and no provision of its charter or by-laws, nor of any mortgage, indenture,
credit agreement or other contract binding on it or affecting its property which
would prohibit its execution or performance of this Agreement.
3. Delivery of Documents.
---------------------
(a) The Administrator will promptly deliver to the Sub-Administrator true
and correct copies of each of the following documents as currently in effect and
will promptly deliver to it all future amendments and supplements thereto, if
any:
(i) The Trust's Declaration of Trust and all amendments thereto (the
"Charter");
(ii) The Trust's bylaws (the "Bylaws");
(iii) Resolutions of the Trust's board of trustees (the "Board")
authorizing the execution, delivery and performance of this
Agreement by the Administrator;
(iv) The Trust's registration statement most recently filed with the
Securities and Exchange Commission (the "SEC") relating to the
shares of each Fund (the "Registration Statement");
(v) The Trust's Notification of Registration under the 1940 Act on
Form N-8A filed with the SEC; and
(vi) The Trust's Prospectus and Statement of Additional Information
pertaining to each Fund (collectively, the "Prospectus").
(b) Each copy of the Charter shall be certified by the Secretary of State
(or other appropriate official) of the state of organization, and if the Charter
is required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Sub-Administrator. Each copy of the Bylaws, Registration
Statement and Prospectus, and all amendments thereto, and copies of Board
resolutions, shall be certified by the Secretary or an Assistant Secretary of
the Trust.
(c) It shall be the sole responsibility of the Administrator to deliver to
the Sub-Administrator the Trust's currently effective Prospectus and the
Sub-Administrator shall not be deemed to have notice of any information
contained in such Prospectus until it is actually received by the
Sub-Administrator.
2
4. Duties And Obligations Of The Sub-administrator.
-----------------------------------------------
(a) Subject to the direction and control of the Board and the provisions
of this Agreement, the Sub-Administrator shall provide to the Administrator on
behalf of the Trust and each Fund the administrative services set forth on
Schedule I attached hereto.
(b) In performing hereunder, the Sub-Administrator shall provide, at its
expense, office space, facilities, equipment and personnel.
(c) The Sub-Administrator shall not provide any services relating to the
management, investment advisory or sub-advisory functions of the Trust or any
Fund, distribution of shares of any Fund, maintenance of the Trust's or any
Fund's financial records or other services normally performed by the Trust or
Funds' counsel or independent auditors.
(d) Upon receipt of the Administrator's prior written consent (which shall
not be unreasonably withheld), the Sub-Administrator may delegate any of its
duties and obligations hereunder to any delegee or agent whenever and on such
terms and conditions as it deems necessary or appropriate. Notwithstanding the
foregoing, no consent shall be required for any such delegation to any other
subsidiary of The Bank of New York Administrator, Inc. The Sub-Administrator
shall not be liable to the Administrator, the Trust or any Fund for any loss or
damage arising out of, or in connection with, the actions or omissions to act of
any delegee or agent utilized hereunder so long as the Sub-Administrator acts in
good faith and without negligence or willful misconduct in the selection of such
delegee or agent.
(e) The Administrator shall cause its and the Trust's officers, advisors,
sponsor, distributor, legal counsel, independent accountants, current
Sub-Administrator (if any) and transfer agent to cooperate with the
Sub-Administrator and to provide the Sub-Administrator, upon request, with such
information, documents and advice relating to the Trust or any Fund as is within
the possession or knowledge of such persons, in order to enable the
Sub-Administrator to perform its duties hereunder. In connection with its duties
hereunder, the Sub-Administrator shall be entitled to rely, and shall be held
harmless when acting in reliance upon the instructions, advice or any documents
relating to the Trust or any Fund provided to the Sub-Administrator by any of
the aforementioned persons. The Sub-Administrator shall not be liable for any
loss, damage or expense resulting from or arising out of the failure of the
Administrator or the Trust to cause any information, documents or advice to be
provided to the Sub-Administrator as provided herein. All fees or costs charged
by such persons shall be borne by the Administrator.
(f) Nothing in this Agreement shall limit or restrict the
Sub-Administrator, any affiliate of the Sub-Administrator or any officer or
employee thereof from acting as Sub-Administrator for or with any third parties.
(g) The Sub-Administrator may apply to an officer of the Administrator for
written instructions with respect to any matter arising in connection with the
Sub-Administrator's performance hereunder, and the Sub-Administrator shall not
be liable for any action taken or omitted to be taken by it in good faith in
3
accordance with such instructions. Such application for instructions may, at the
option of the Sub-Administrator, set forth in writing any action proposed to be
taken or omitted to be taken by the Sub-Administrator with respect to its duties
or obligations under this Agreement and the date on and/or after which such
action shall be taken, and the Sub-Administrator shall not be liable for any
action taken or omitted to be taken in accordance with a proposal included in
any such application on or after the date specified therein unless, prior to
taking or omitting to take any such action, the Sub-Administrator has received
written instructions in response to such application specifying the action to be
taken or omitted. The Sub-Administrator may consult with counsel to the
Administrator or the Trust, at the Administrator's expense, or its own counsel
(at its own expense), and shall be fully protected with respect to anything done
or omitted by it in good faith in accordance with the advice or opinion of such
counsel.
(h) The Sub-Administrator shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement and Schedule I hereto, and no covenant or obligation shall be
implied against the Sub-Administrator in connection with this Agreement.
5. Allocation Of Expenses.
----------------------
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the Administrator, including but not limited to, organizational costs and costs
of maintaining the Trust's or the Funds' existence, taxes, interest, brokerage
fees and commissions, insurance premiums, compensation and expenses of the
Trust's trustees, officers or employees, legal, accounting and audit expenses,
management, advisory, sub-advisory, administration and shareholder servicing
fees, charges of custodians, transfer and dividend disbursing agents, expenses
(including clerical expenses) incident to the issuance, redemption or repurchase
of Fund shares, fees and expenses incident to the registration or qualification
of the Trust or any Fund's shares under federal or state securities laws, costs
(including printing and mailing costs) of preparing and distributing
Prospectuses, reports, notices and proxy material to Fund shareholders, all
expenses incidental to holding meetings of the Board and Fund shareholders, and
extraordinary expenses as may arise, including litigation affecting the
Administrator, the Trust or any Fund and legal obligations relating thereto for
which the Administrator, the Trust or a Fund may have to indemnify its trustees
and officers.
6. Standard Of Care; Indemnification.
---------------------------------
(a) Except as otherwise provided herein, the Sub-Administrator shall not
be liable for any costs, expenses, damages, liabilities or claims (including
reasonable attorneys' and accountants' fees) incurred by the Administrator, the
Trust or a Fund, except those costs, expenses, damages, liabilities or claims
arising out of the Sub-Administrator's own bad faith, negligence or willful
misconduct. In no event shall the Sub-Administrator be liable to the
Administrator, the Trust or any Fund or any third party for special, indirect or
consequential damages, or lost profits or loss of business, arising under or in
connection with this Agreement, even if previously informed of the possibility
of such damages and regardless of the form of action.
4
(b) The Administrator agrees to indemnify and hold harmless the
Sub-Administrator from and against any and all costs, expenses, damages,
liabilities and claims (including claims asserted by the Administrator or the
Trust), and reasonable attorneys' and accountants' fees relating thereto, which
are sustained or incurred or which may be asserted against the Sub-
Administrator, by reason of or as a result of any action taken or omitted to be
taken by the Sub- Administrator in good faith hereunder or in reliance upon (i)
any law, act, regulation or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed, (ii) the
Registration Statement or Prospectus, (iii) any instructions of an officer of
the Administrator or the Trust, or (iv) any opinion of legal counsel for the
Administrator, the Trust or the Sub-Administrator, or arising out of
transactions or other activities of the Administrator, the Trust or a Fund which
occurred prior to the commencement of this Agreement; provided, that the
Sub-Administrator shall not be indemnified for costs, expenses, damages,
liabilities or claims arising out of the Sub-Administrator's own negligence, bad
faith or willful misconduct. This indemnity shall be a continuing obligation of
the Administrator, its successors and assigns, notwithstanding the termination
of this Agreement.
(c) Actions taken or omitted in reliance on oral or written instructions,
or upon any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument believed by the Sub-Administrator to
be genuine or bearing the signature of a person or persons believed to be
authorized to sign, countersign or execute the same, or upon the opinion of
legal counsel for the Administrator, the Trust or the Sub-Administrator's own
counsel, shall be conclusively presumed to have been taken or omitted in good
faith.
7. Compensation.
------------
For the services provided hereunder, the Administrator agrees to pay the
Sub-Administrator such compensation as is mutually agreed from time to time and
such out-of-pocket expenses (e.g., telecommunication charges, postage and
delivery charges, record retention costs, reproduction charges and
transportation and lodging costs) as are incurred by the Sub-Administrator in
performing its duties hereunder. Except as hereinafter set forth, compensation
shall be calculated and accrued daily and paid monthly. The Administrator
authorizes the Sub-Administrator to debit each Fund's custody account for all
amounts due and payable hereunder and allocable to such Fund. The
Sub-Administrator shall deliver to the Administrator invoices for services
rendered after debiting such each Fund's custody account with an indication that
payment has been made. Upon termination of this Agreement before the end of any
month, the compensation for such part of a month shall be prorated according to
the proportion which such period bears to the full monthly period and shall be
payable upon the effective date of termination of this Agreement. For the
purpose of determining compensation payable to the Sub-Administrator, each
Fund's net asset value shall be computed at the times and in the manner
specified in the Prospectus.
5
8. Term Of Agreement.
-----------------
(a) This Agreement shall continue until terminated by either the
Sub-Administrator giving to the Administrator, or the Administrator giving to
the Sub-Administrator, a notice in writing specifying the date of such
termination, which date shall be not less than 90 days after the date of the
giving of such notice. Upon termination hereof, the Administrator shall pay to
the Sub-Administrator such compensation as may be due as of the date of such
termination, and shall reimburse the Sub-Administrator for any disbursements and
expenses made or incurred by the Sub-Administrator and payable or reimbursable
hereunder.
(b) Notwithstanding the foregoing, the Sub-Administrator may terminate
this Agreement upon 30 days prior written notice to the Administrator if the
Trust shall terminate its custody agreement or the Administrator shall terminate
its fund accounting agreement with The Bank of New York, or the Administrator or
the Trust fails to perform its obligations hereunder in a material respect.
9. Amendment.
---------
This Agreement may not be amended or modified in any manner except by a
written agreement executed by the Sub-Administrator and the Administrator, and
authorized or approved by the Board.
10. Assignment.
----------
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Administrator without the written
consent of the Sub-Administrator, or by the Sub-Administrator without the
written consent of the Administrator accompanied by the authorization or
approval of the Board.
11. Governing Law; Consent to Jurisdiction.
--------------------------------------
This Agreement shall be construed in accordance with the laws of the State
of New York, without regard to conflict of laws principles thereof. The
Administrator hereby consents to the jurisdiction of a state or federal court
situated in New York City, New York in connection with any dispute arising
hereunder. To the extent that in any jurisdiction the Administrator may now or
hereafter be entitled to claim immunity from suit, execution, attachment (before
or after judgment) or other legal process, it irrevocably agrees not to claim,
and hereby waives, such immunity.
6
12. Severability.
-------------
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
13. No Waiver.
---------
Each and every right granted to the Sub-Administrator hereunder or under
any other document delivered hereunder or in connection herewith, or allowed it
by law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of the Sub-Administrator to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will any single or
partial exercise by the Sub-Administrator of any right preclude any other or
future exercise thereof or the exercise of any other right.
14. Notices.
-------
All notices, requests, consents and other communications pursuant to this
Agreement in writing shall be sent as follows:
if to the Administrator, at
Conseco Services, L.L.C.
00000 Xxxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxx 00000
ATTENTION: XXXX XXXX
if to the Sub-Administrator, at
The Bank of New York
00 Xxxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxxxxx X. Xxxxxxx
Vice President
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
15. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
7
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
CONSECO SERVICES L.L.C.
By: /s/ X.X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
Title: President
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx
Title: Vice President
8
EXHIBIT A
Name of Fund
------------
Conseco Fund Group
Equity Fund
Asset Allocation Fund
Fixed Income Fund
Exhibit F
FUND ADMINISTRATION FEE SCHEDULE
WITH BLUE SKY SERVICES
FOR
CONSECO FUND GROUP
Fund Administration Fee
-----------------------
3 basis points per annum, on the net assets of each portfolio up to
$100 million.
2 basis points on the excess.
Minimum Fee
-----------
The minimum fee will be waived for the first 3 months of operation.
The following minimums will apply thereafter:
4 - 12 months: $2,000 per month, per portfolio
After l year: $2,500 per month, per portfolio
Out-of-Pocket Expenses
----------------------
Services include but are not limited to the out-of-pocket expenses
for administration, courier, printing, filing fees, legal fees, and
shareholder reports.
Billing Cycle
-------------
The above fees will be billed on a monthly basis.
Conseco Services, LLC The Bank of New York
--------------------- --------------------
Accepted by: /s/ X.X. Xxxxxx Accepted by: /s/ Xxxxxxxx XxXxxxxxxx
------------------ -----------------------
Xxxxxx X. Xxxxxx
Title: President Title: Vice President
--------------------- -----------------------
Date: January 2, 1997 Date: January 2, 1997
----------------- -----------------------
Schedule I
Dated as of January 2, 1997
---------------
FUND ADMINISTRATION SERVICES
SUB-ADMINISTRATION AGREEMENT
----------------------------
. Monitor and document compliance by the Fund with its policies and
restrictions as delineated in its Prospectus and with the Rules and
Regulations of the Investment Company Act of 1940.
. Monitor and report on Sub-Chapter M qualifications, monitor compliance
with Section 4982 of the Internal Revenue Code, calculate and maintain
records pertaining to original issue discount and premium amortization as
required, perform ongoing wash sales review, etc.
. Establish appropriate expense accruals, maintain expense files and
coordinate the payment of invoices.
. Monitor and report on adherence to NASD rules governing investment company
sales charges.
