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EXHIBIT 23(h)(1)
ADMINISTRATION AGREEMENT
BETWEEN MARKET STREET FUND
AND
PROVIDENT MUTUAL LIFE INSURANCE COMPANY
THIS ADMINISTRATION AGREEMENT is entered into as of the close of
business on January 26, 2001, the date that Market Street Fund, Inc., a Maryland
corporation, reorganizes and redomesticates into Market Street Fund, a Delaware
business trust, by and between Market Street Fund (the "Fund"), a Delaware
business trust having its principal office and place of business at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx, and Provident Mutual Life Insurance Company (the
"Administrator"), a Pennsylvania corporation organized and existing under the
laws of the state of Pennsylvania having its principal office and place of
business at 0000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxx.
WITNESSETH:
WHEREAS, the Fund is authorized to issue shares of beneficial interest
(the "Shares") in separate series, with each series representing interests in a
separate portfolio of securities and other assets (the "Portfolios"); and
WHEREAS, the Fund, on behalf of the Portfolios, desires the
Administrator to provide administrative services, and the Administrator desires
to provide said services directly or through other entities;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, covenants, conditions, and agreements contained herein, and for such
other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, the parties, each intending to be legally bound hereby,
mutually agree as follows:
1. Terms of Appointment: Duties of the Administrator
1.1 Subject to the terms and conditions set forth in this Agreement,
the Fund, on behalf of the Portfolios, hereby engages the Administrator
to provide, and the Administrator agrees to provide, administrative
services to the Fund, to its Portfolios, and to the shareholders of
each of the respective Portfolios of the Fund (the "Shareholders") as
set out hereunder and in the currently effective prospectus and
statement of additional information (the "Prospectus") of the Fund on
behalf of the applicable Portfolio.
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1.2 The Administrator agrees that the Administrator shall perform the
following services
(a) The Administrator shall provide the following administrative
services on behalf of the Portfolios, including, among other
things: (i) providing oversight and general supervision of the
activities of the Fund's counsel and auditors; (ii) providing
oversight and general supervision of the services and activities
of the administrative service provider included in the accounting
and administrative services agreement, the custodians in their
respective custody and custody services agreements, the transfer
agent in the transfer and dividend disbursing agency agreement,
and any other service contractors to the Fund excluding the
investment adviser; (iii) coordinating contractual and other
relationships and communications between the Fund and its service
providers, including those relationships and communications with
the Fund's investment adviser; (iv) monitoring state and federal
laws as these laws may apply to the Fund or the Portfolios; (v)
providing general business management services to the Fund
(including, among other things, establishing expense levels and
reviewing bills and authorizing payment therefor); (vi) providing
clerical, secretarial, and bookkeeping services, office supplies,
office space, and related services (including telephone and other
utility services); (vii) providing administrative support to the
Fund's employees who are providing legal and other services to the
Fund; (viii) providing comptroller services; (ix) scheduling and
planning agendas for, preparing and distributing, or arranging for
the preparation and/or distribution of, materials for these
meetings, and conducting meetings of the Board of Trustees of the
Fund and the shareholders of the Fund; and (x) preparing and
distributing all required reports, proxy materials, and other
communications to the shareholders of the Fund; and
(b) The administrative services provided hereunder shall exclude:
(i) portfolio custodial services provided by the Fund's custodian
bank; (ii) transfer agency services provided by the Fund's
transfer agent; (iii) distribution services provided by the
distributor of the Fund's Shares; and (iv) any services provided
by the Fund's investment adviser pursuant to the investment
adviser's investment advisory agreements with the Fund.
2. Fees and Expenses
2.1 For the performance by the Administrator pursuant to this
Agreement, the Fund agrees on behalf of the Portfolios to pay the
Administrator, from each Portfolio, a fee of 0.10% per annum of the
average daily net assets of each Portfolio.
2.2 The Fund agrees on behalf of the Portfolios to pay all fees and
reimbursable expenses promptly. The Administrator shall xxxx the Fund
quarterly in arrears.
3. Representations and Warranties of the Administrator and the Fund
3.1 The Administrator represents and warrants to the Fund that:
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(a) The Administrator is a mutual life insurance company duly
organized and existing, in good standing, under the laws of the
State of Pennsylvania.
(b) The Administrator is duly qualified to carry on its business
in the State of Pennsylvania.
(c) The Administrator 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 the Administrator to enter into and perform this
Agreement.
(e) The Administrator has and will continue to have access to the
necessary facilities equipment and personnel to perform its duties
and obligations under this Agreement.
3.2 The Fund represents and warrants to the Administrator that:
(a) The Fund is a business trust duly organized and existing, in
good standing, under the laws of the State of Delaware.
(b) The Fund is empowered under applicable laws and by its
Declaration of Trust and By-Laws to enter into and perform this
Agreement.
(c) All corporate proceedings required by said Declaration of
Trust and By-Laws have been taken to authorize the Fund to enter
into and perform this Agreement.
(d) The Fund is an open-end diversified investment management
company registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(e) A registration statement under the Securities Act of 1933, as
amended, and the 1940 Act, on behalf of the Portfolios is
currently effective and shall remain effective, and appropriate
securities filings have been made and shall continue to be made
with respect to all Shares of the Portfolios being offered for
sale.
4. Confidentiality
Subject to the duty of the Fund or the Administrator to comply with
applicable law, each party hereto shall treat as confidential all
information with respect to the other party received pursuant to this
Agreement.
5. Indemnification
The Administrator and its shareholders, officers, directors, or
employees shall not be responsible for, and the Fund shall, on behalf
of the applicable Portfolio, indemnify and hold the Administrator
harmless from, any and all losses, expenses, and liability arising out
of the Administrator's activities hereunder, except for willful
misconduct, bad faith, or negligence of the Administrator or that of
the Administrator's employees or the
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reckless disregard by the Administrator of its 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.
6. Standard of Care
The Administrator shall at all times act in good faith and use its best
efforts within reasonable limits to insure the accuracy of all services
performed under this Agreement. The Administrator assumes no
responsibility and shall not be liable for loss or damage due to errors
unless said errors are caused by the Administrator's negligence, bad
faith, or willful misconduct or that of its employees or
subcontractors.
7. Covenants of the Administrator
The Administrator shall keep records relating to the services to be
performed hereunder in the form and manner as the Administrator may
deem advisable. To the extent required by Section 31 of the 1940 Act
and the Rules thereunder, the Administrator agrees that all said
records prepared or maintained by the Administrator relating to the
services to be performed hereunder are the property of the Fund, and
shall be preserved, maintained, and made available in accordance with
said Section and Rules, and shall be surrendered promptly to the Fund
on and in accordance with the Fund's request.
8. Additional Portfolios
In the event that the Fund establishes one or more series of Shares in
addition to the existing Portfolios with respect to which the Fund
desires to have the Administrator render administrative services under
the terms hereof, the Fund shall so notify the Administrator in
writing. If the Administrator agrees in writing to provide said
services, said series of Shares shall become a Portfolio hereunder.
9. Amendment
This Agreement may be amended or modified by a written Agreement
executed by both parties and authorized or approved by a resolution of
the Trustees of the Fund.
10. Assignment
10.1 Except as provided in Section 10.3 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party
without the written consent of the other party.
10.2 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
10.3 The Administrator may, without further consent on the part of the
Fund, subcontract for the performance hereof with an affiliate or a
non-affiliate of the Administrator; provided, however, that the
Administrator shall be fully responsible to the Fund for the acts and
omissions of any subcontractor as the Administrator is for its own acts
and omissions. The Administrator shall compensate any subcontractor
retained pursuant to
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this Agreement out of the fees the Administrator receives from the
Portfolios pursuant to Section 2.1 above.
11. Term of Agreement
This Agreement shall become effective on the date hereof and shall
continue in effect for two (2) years from this date, unless sooner
terminated as hereinafter provided, and shall continue in effect from
year to year thereafter so long as this continuation is approved at
least annually by (i) the Trustees of the Fund or by the vote of a
majority of the outstanding voting securities of the Portfolio(s) and
(ii) the vote of a majority of the Trustees of the Fund who are not
parties to this Agreement or interested persons of any this party, with
this vote being cast in person at a meeting called for the purpose of
voting on such approval.
12. Termination
This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
13. Applicable Law
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of
Delaware.
14. Force Majeure
In the event that either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure, or other causes reasonably beyond
that party's control, that party shall not be liable for damages to the
other resulting from this failure to perform or otherwise from that
causes.
15. Consequential Damages
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act
hereunder.
16. 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.
17. Limitations of Liability of the Trustees and Shareholders
Notice is hereby given that the Declaration of Trust of the Fund is
executed on behalf of the Trustees of the Fund as Trustees, and not
individually, and that the obligations of this instrument are not
binding upon any of the Trustees or Shareholders individually but are
binding only upon the assets and property of the Fund.
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.
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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.
ATTEST: MARKET STREET FUND
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxx
Title: Secretary Title: President
Compliance Officer
ATTEST: PROVIDENT MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxx
Title: Assistant Secretary Title: President
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