EXHIBIT (h)(1)
FUND ADMINISTRATION AGREEMENT
BETWEEN
MARKET STREET FUND
AND
GARTMORE SA CAPITAL TRUST
THIS FUND ADMINISTRATION AGREEMENT (the "Agreement") is made as of this
1st day of October, 2002, by and between MARKET STREET FUND, a Delaware business
trust (the "Fund"), and GARTMORE SA CAPITAL TRUST, a Delaware business trust
(the "Administrator").
WITNESSETH:
WHEREAS, the Fund is a Delaware business trust, which operates as an
open-end management investment company and is registered as such under the
Investment Company Act of 1940, as amended (the "Investment Company Act"); and
WHEREAS, the Fund desires to retain the Administrator to provide
certain administrative and fund accounting services described below with respect
to certain of the series portfolios of the Fund (hereinafter, the "Portfolios"),
each of which Portfolios as are now, or may hereafter be, listed on Exhibit A to
this Agreement; and
WHEREAS, the Administrator is willing to render these services to the
Fund.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR. The Fund hereby appoints the
Administrator as fund administrator of the Portfolios on the terms and
conditions set forth in this Agreement; and the Administrator hereby
accepts this appointment and agrees to perform the services and duties
set forth in Section 2 of this Agreement in consideration of the
compensation provided for in Section 4 hereof.
2. SERVICES AND DUTIES. As fund administrator, and subject to the
supervision and control of the Fund's Board of Trustees, the
Administrator will provide facilities, equipment, and personnel to
carry out the following administrative and fund accounting services for
operation of the business and affairs of the Fund and each of the
Portfolios covered by this Agreement:
a. prepare, file, and maintain the Fund's governing documents,
including the Declaration of Trust, the Bylaws, minutes of
meetings of Trustees and shareholders, and proxy statements
for meetings of shareholders;
b. prepare and file on a timely basis with the Securities and
Exchange Commission and the appropriate State securities
authorities: (i) the registration statements for the Fund,
relating to the Portfolios and the Portfolios' shares, and all
amendments thereto; (ii) the Fund's reports pursuant to
Investment Company Act Rule 24f-2; (iii) reports to
shareholders and regulatory authorities, including, among
others, Form N-SAR; and (iv) prospectuses, proxy statements,
and such other documents as may be necessary or convenient to
enable the Fund to make continuous offering of the Portfolios'
shares and to conduct the Fund's affairs;
c. prepare, negotiate, and administer contracts on behalf of the
Portfolios with, among others, the Fund's custodian and
transfer agent;
d. supervise the Fund's custodian;
e. calculate performance data of the Portfolios;
f. prepare and file on a timely basis the Federal and State
income and other tax returns for the Portfolios;
g. examine and review the operations of the Fund's custodian,
transfer agent, and investment adviser and the Portfolios'
subadvisers, if any, to promote compliance with applicable
state and federal law;
h. coordinate the layout and printing of publicly disseminated
prospectuses and reports;
i. perform internal audit examinations in accordance with
procedures to be adopted by the Administrator and the Fund;
j. assist with the design, development, and operation of the
Portfolios;
k. provide individuals reasonably acceptable to the Fund's Board
of Trustees for nomination, appointment, or election as
officers of the Fund, who will be responsible for the
management of certain of the Fund's affairs as determined by
the Fund's Board of Trustees;
l. monitor the Fund's compliance with Section 817 and Sections
851 through 855 of the U.S. Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder,
so as to enable the Fund and
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each Portfolio to comply with the diversification requirements
applicable to investments of variable contracts and for each
to maintain the status of each as a "regulated investment
company;"
m. advise the Fund and the Fund's Board of Trustees on matters
concerning the Portfolios and the affairs of the Portfolios;
n. provide the Fund with office space and personnel;
o. provide the Fund and each Portfolio with fund accounting
services, including, but not limited to, the following
services:
1) keeping and maintaining the following books and
records of the Fund and each of the Portfolios
pursuant to Rule 31a-1 under the Investment Company
Act, including, among others:
a) journals containing an itemized daily record
of all purchase and sales of securities, all
receipts and disbursements of cash, and all
other debit and credits, as required by Rule
31a-1(b)(1);
b) general and auxiliary ledgers reflecting all
asset, liability, reserve, capital, income,
and expense accounts, including interest
accrued and interest received, as required
by Rule 31a-1(b)(2)(i);
c) separate ledger accounts required by Rule
31a-1(b)(2)(ii) and (iii); and
d) a monthly trial balance of all ledger
accounts (except shareholder accounts) as
required by Rule 31a-1(b)(8).
2) performing the following accounting services on a
regular basis for each Portfolio, as may be
reasonably requested by the Fund:
a) calculate the net asset value per share;
b) calculate the dividend and capital gain
distribution, if any;
c) calculate a Portfolio's yield;
d) reconcile cash movements with the Fund's
custodian;
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e) affirm to the Fund's custodian all portfolio
trades and cash movements;
f) verify and reconcile with the Fund's
custodian all daily trade activity;
g) provide such reports as may be required by
the Fund;
h) preparation of the Fund's financial
statements, including oversight of expense
accruals and payments;
i) calculating the deviation between
marked-to-market and amortized cost
valuations for any money market fund; and
j) such other similar services with respect to
a Portfolio as may be reasonably requested
by the Fund; and
p. assist in all aspects of the operations of the Portfolios
other than those provided under other specific contracts.
The foregoing, along with any additional services that the
Administrator shall agree in writing to perform for the Fund hereunder,
shall hereafter be referred to as the "Administrative Services." In
compliance with the requirements of Rule 31a-3 under the Investment
Company Act, the Administrator hereby agrees that all records that the
Administrator maintains for the Fund are the property of the Fund and
further agrees to surrender promptly to the Fund any of these records
upon the Fund's request. The Administrator further agrees to preserve
for the periods prescribed by Investment Company Act Rule 31a-2 the
records required to be maintained by Investment Company Act Rule 31a-1.
Administrative Services shall not include any duties, functions, or
services to be performed for the Fund by the Fund's investment adviser,
custodian, or transfer agent pursuant to their agreements with the
Fund.
The Administrator acknowledges the importance of efficient and prompt
transmission of information to the life insurance companies affiliated
with the Administrator (said life insurance companies hereinafter
referred to collectively as "Nationwide"), the purchaser of Fund shares
to fund the obligations of certain variable annuity contracts. The
Administrator agrees to use the Administrator's best efforts to meet
the deadline for transmission of pricing information presently set by
Nationwide and such other time deadlines as may be established from
time to time in the future.
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When performing Administrative Services on behalf of the Fund and for
the Portfolios, the Administrator: (i) will comply with the provisions
of the Declaration of Trust and Bylaws of the Fund; (ii) will safeguard
and promote the welfare of the Fund and the Portfolios; and (iii) will
comply with the policies that the Trustees, from time to time,
reasonably may determine; provided, that these policies are not in
conflict with this Agreement, the Fund's governing documents, or any
applicable statutes or regulations.
3. EXPENSES. The Administrator shall be responsible for expenses incurred
in providing all the Administrative Services to the Fund, including the
compensation of the Administrator's employees who serve as officers of
the Fund; except, that the Fund shall reimburse the Administrator for
the cost of the pricing services that the Administer utilizes. The Fund
(or the Fund's investment adviser) shall be responsible for all other
expenses of the Fund, including, without limitation: (i) investment
advisory and subadvisory fees; (ii) interest and taxes; (iii) brokerage
commissions and other costs in connection with the purchase or sale of
securities and other investment instruments; (iv) fees and expenses of
the Fund's trustees, other than those who are "interested persons" of
the Administrator or investment adviser of the Fund; (v) legal and
audit expenses; (vi) custodian and transfer and dividend disbursing
agent fees and expenses; (vii) fees and expenses related to the
registration and qualification of the Fund and the Fund's shares for
distribution under State and Federal securities laws; (viii) expenses
of printing and mailing reports and notices and proxy material to
beneficial shareholders of the Fund; (ix) all other expenses incidental
to holding meetings of the Fund's shareholders, including proxy
solicitations therefor; (x) insurance premiums for fidelity and other
coverage; (xi) association membership dues; and (xii) such nonrecurring
or extraordinary expenses as may arise, including those expenses
relating to actions, suits, or proceedings to which the Fund is a party
and the legal obligation which the Fund may have to indemnify the
Fund's trustees and officers with respect thereto.
4. COMPENSATION. For the Administrative Services provided hereunder by the
Administrator, the Fund hereby agrees to pay, and the Administrator
hereby agrees to accept as full compensation for the Administrator's
services rendered hereunder, the administrative fee listed for each
Portfolio on Exhibit A. These fees will be computed daily and payable
monthly at an annual rate based on a Portfolio's average daily net
assets and will be paid monthly as soon as practicable after the last
day of each month.
In case of termination of this Agreement during any month, the
administrative fee for that month shall be reduced proportionately on
the basis of the number of business days during which the Agreement is
in effect, and the fee computed upon the average net assets for the
business days that the Agreement is so in effect for that month.
5. RESPONSIBILITY OF ADMINISTRATOR.
a. The Administrator shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the
Fund in connection with the matters to which this Agreement
relates, except a loss resulting from willful
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misfeasance, bad faith or negligence on the Administrator's
part in the performance of the Administrator's duties or from
reckless disregard by the Administrator of the Administrator's
obligations and duties under this Agreement. Any person, even
though also an officer, director, partner, employee, or agent
of the Administrator, who may be or become an officer or
trustee of the Fund, shall be deemed, when rendering services
to the Fund or acting on any business of the Fund (other than
services or business in connection with the duties of the
Administrator hereunder) in accordance with his or her
responsibilities to the Fund as said officer or trustee, to be
rendering these services to or acting solely for the Fund and
not as an officer, director, partner, employee, or agent, or
one under the control or direction of the Administrator even
though paid by the Administrator.
b. The Administrator shall be kept indemnified by the Fund and be
without liability for any action taken or thing done by the
Administrator in performing the Administrative Services in
accordance with the above standards; provided, however, that
the Fund will not indemnify the Administrator for the portion
of any loss or claim caused, directly or indirectly, by the
negligence, wilful malfeasance, or bad faith of the
Administrator or by the Administrator's reckless disregard of
the Administrator's duties and obligations hereunder. In order
that the indemnification provisions contained in this Section
5 shall apply, however, it is understood that if in any case
the Fund may be asked to indemnify or save the Administrator
harmless, the Fund shall be fully and promptly advised of all
pertinent facts concerning the situation in question; and it
is further understood that the Administrator will use all
reasonable care to identify and notify the Fund promptly
concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification
against the Fund. The Fund shall have the option to defend the
Administrator against any claim that may be the subject of
this indemnification. In the event that the Fund so elects,
the Fund will so notify the Administrator and thereupon the
Fund shall take over complete defense of the claim, and the
Administrator, in said situation, said initiate no further
legal or other expenses for which the Administrator shall seek
indemnification under this Section. The Administrator, in no
case, shall confess any claim or make any compromise or
settlement in any case in which the Fund will be asked to
indemnify the Administrator except with the Fund's written
consent.
6. DURATION AND TERMINATION.
a. This Agreement shall become effective as of the date first
written above. The Agreement may be terminated at any time,
without payment of any penalty, by either party upon ninety
(90) days' advance written notice to the other
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party. The Agreement may also be terminated immediately upon
written notice to the other party in the event of a material
breach of any provision of this Agreement by such other party.
b. Upon the termination of this Agreement, the Fund shall pay to
the Administrator such compensation as may be payable prior to
the effective date of said termination. In the event that the
Fund designates a successor to any of the Administrator's
obligations hereunder, the Administrator, at the direction of
the Fund, shall transfer to said successor all relevant books,
records, and other data established or maintained by the
Administrator under the foregoing provisions.
7. AMENDMENT. No provision of this Agreement may be changed, waived,
discharged, or terminated orally. A provision of this Agreement may be
changed, waived, discharged, or terminated only by an instrument in
writing signed by the party against which an enforcement of the
respective change, waiver, discharge, or termination is sought.
8. MARKET STREET FUND AND ITS TRUSTEES. The terms "Market Street Fund" and
the "Trustees of Market Street Fund" refer respectively to the Fund
created and the Trustees, as trustees but not individually or
personally, acting from time to time under a Declaration of Trust dated
as of October 30, 2000 (the Fund was converted on January 26, 2001 from
Market Street Fund, Inc., a Maryland corporation, which was
incorporated in the State of Maryland on March 21, 1985), as has been
or may be amended from time to time, and to which reference is hereby
made and a copy of which is on file at the office of the Secretary of
State of the State of Delaware and elsewhere as required by law, and to
any and all amendments thereto so filed or hereafter filed. The
obligations of the Fund entered into in the name or on behalf thereof
by any of the Fund's Trustees, representatives, or agents are not made
individually, but only in their capacities with respect to Market
Street Fund. These obligations are not binding upon any of the
Trustees, shareholders, or representatives of the Fund personally, but
bind only the assets of the Fund. All persons dealing with any series
of Shares of the Fund must look solely to the assets of the Fund
belonging to these series for the enforcement of any claims against the
Fund.
9. NOTICES. Notices of any kind to be given to the Fund hereunder by the
Administrator shall be in writing and shall be duly given if delivered
to the Fund and to the Fund's investment adviser at the following
address:
Market Street Fund
000 Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx, Secretary
Notices of any kind to be given to the Administrator hereunder by the
Fund shall be in writing and shall be duly given if delivered to the
Administrator at:
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Gartmore SA Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
10. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
If any provision of this Agreement shall be held or made invalid by a
court or regulatory agency decision, statute, rule, or otherwise, the
remainder of this Agreement shall not be affected thereby. Subject to
the provisions of Section 5, hereof, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors. This Agreement shall be governed by and
construed to be in accordance with substantive laws of the State of
Ohio without reference to choice of law principles thereof and in
accordance with the 1940 Act. In the case of any conflict, the 1940 Act
shall control.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
GARTMORE SA CAPITAL TRUST
By:
Name:
Title:
MARKET STREET FUND
By:
Name:
Title:
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EXHIBIT A
MARKET STREET FUND
Fund Administration Agreement
SCHEDULE OF FEES / PORTFOLIOS
[October 1, 2002]
The Portfolios of the Fund shall pay a combined fee at an annual rate of 0.06%
of the Fund's average daily net assets for services provided by the
Administrator under this Fund Administration Agreement and by Gartmore Investors
Services, Inc. (the "Agent") for the provision of transfer and dividend
disbursement agency services under the Transfer and Dividend Disbursing Agent
Agreement between the Fund and the Agent.
Fees will be computed daily and payable monthly at an annual rate described
above. The Fund will also be responsible for out-of-pocket expenses reasonably
incurred by the Administrator and the Agent in providing services to the
Portfolios. The combined fees and expenses shall be paid by the Fund to the
Administrator on behalf of the Administrator and the Agent.
The following Portfolios are covered by this Agreement:
Market Street Fund
All Pro Broad Equity Portfolio
All Pro Large Cap Growth Portfolio
All Pro Large Cap Value Portfolio
All Pro Small Cap Growth Portfolio
All Pro Small Cap Value Portfolio
Equity 500 Index Portfolio
International Portfolio
Mid Cap Growth Portfolio
Balanced Portfolio
Bond Portfolio
Money Market Portfolio
GARTMORE SA CAPITAL TRUST
By:
Name:
Title:
MARKET STREET FUND
By:
Name:
Title:
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