EXHIBIT H
ADMINISTRATION AGREEMENT
ADMINISTRATION AGREEMENT
BETWEEN CONSECO STOCKCAR STOCKS MUTUAL FUND, INC.
AND
CONSECO SERVICES LLC
THIS ADMINISTRATION AGREEMENT is entered into as of this 28th day of
April, 2000, by and between Conseco Stockcar Stocks Mutual Fund, Inc. (the
"Company"), a Maryland corporation 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:
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WHEREAS, the Company is registered under the Investment Company Act of
1940, as amended (the " 1940 Act"), as an open-end diversified management
investment company;
WHEREAS, the Company is authorized to issue various 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 Company desires to retain the administrator to provide
administrative services to the 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
1.1 The Company 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 Directors of the
Company (the "Directors"), the Administrator shall supervise the Fund's
business and affairs and shall provide the services required for the
effective administration of the Fund to the extent not otherwise provided
by employees, agents or contractors of the Company. These services shall
include: (i) furnishing, without cost to the 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 the Fund with the federal and state securities
laws, (iii) monitoring and reporting on compliance by the Fund with its
investment policies and restrictions, (iv) furnishing clerical and
bookkeeping services as needed by the 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 the 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 Directors and
shareholders, (xii) permitting its directors, officers and employees to
serve, without compensation from the Company or the Fund, as Directors or
officers of the Company, (xiii) overseeing the determination and
publication of the 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 Company, such as its transfer agent, custodian,
independent accountants and legal counsel.
Nothing contained herein shall be deemed to relieve or deprive the
Directors of their responsibility for and control of the conduct of the
affairs of the Company or the Fund.
1.3 The administrative services provided hereunder will exclude (i) portfolio
custodial services provided by the Company's custodian, (ii) transfer
agency services provided by the Company's transfer agent, (iii)
distribution services provided by the distributor of the Company's shares,
Conseco Equity Sales, Inc., and (iv) any administrative services provided
by the Company's investment adviser pursuant to its investment advisory
agreements with the Company.
1.4 This agreement shall not become effective until such time as Declaration
Service Company is no longer providing services to the Trust. This date
shall be the earliest practical date as Conseco Services, LLC is able to
assume responsibility currently provided to the Trust.
2. ADMINISTRATION FEES
2.1 As compensation for the services rendered and the expenses assumed by the
Administrator pursuant to this Agreement, the 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 the 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 the 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
The Fund shall bear all expenses of its operation (including its
proportionate share of the general expenses of the Company) not
specifically assumed by the Administrator. Expenses borne by the 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 Company's custodian and transfer agent; (iii)
expenditures in connection with meetings of shareholders and Directors,
other than those called solely to accommodate the Administrator; (iv)
compensation and expenses of Directors who are not interested persons of
the Company or the Administrator ("Disinterested Directors"); (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 COMPANY
4.1 The Administrator represents and warrants to the Company 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 Company represents and warrants to the Administrator that:
(a) It is a corporation duly organized and existing, in good standing,
under the laws of the State of Maryland.
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
(c) All corporate proceedings required by said Articles of Incorporation
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.
5. CONFIDENTIALITY
Subject to the duty of the Company 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 Company 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
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 Company's Amended and Restated Articles of Incorporation of
Company is on file with the Secretary of State of Maryland, and notice is
hereby given that this Agreement is executed on behalf of the Directors as
Directors and not individually. The Administrator acknowledges and agrees
that the obligations of a Fund hereunder are not binding upon any of the
Directors or shareholders of the Fund personally but are binding only upon
the assets and property of that Fund and no other.
8. FUND RECORDS
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
Company are the property of the Company, will be preserved for the periods
prescribed by Rule 31a-2 under the 1940 Act, and will be surrendered
promptly to the Company upon request.
9. ADDITIONAL FUNDS
In the event that the Company 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 of
shares shall become a Fund hereunder upon execution of a new Schedule A and
approved by the Directors.
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
Directors 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 Directors,
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 Directors.
13. 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. 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.
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 STOCKCAR STOCKS MUTUAL
FUNDS, INC.
ATTEST: By: ___________________________________
Xxxxxxx X. Xxxxxxx
_________________ President
CONSECO SERVICES LLC
ATTEST: By: ___________________________________
Xxxxxx X. Xxxxxx,
_________________ President
