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EXHIBIT 23(d)(13)
INVESTMENT SUBADVISORY AGREEMENT
THIS INVESTMENT SUBADVISORY AGREEMENT (the "Agreement"), by and between
MARKET STREET INVESTMENT MANAGEMENT COMPANY (formerly "Providentmutual
Investment Management Company"), a Pennsylvania corporation (the "Adviser"), and
STERLING CAPITAL MANAGEMENT LLC, a North Carolina corporation (the
"Subadviser"), made and effective with respect to a Portfolio of Market Street
Fund, a Delaware business trust, as specified in this Agreement.
The Adviser and Subadviser agree as follows:
1. APPOINTMENT OF SUBADVISER. The Adviser hereby engages the services of
the Subadviser in connection with the Adviser's management of one or more of the
portfolios of MARKET STREET FUND (the "Fund") specified in an appendix to this
Agreement (each, a "Portfolio"), as this appendix may be amended from time to
time under this Agreement ("Appendix A"). Pursuant to this Agreement and subject
to the oversight and supervision by the Adviser and the Fund's Board of Trustees
(the "Board") and the officers, the Subadviser shall manage the investment and
reinvestment of all or a portion of the Portfolio's assets (collectively, the
"Portfolio Segment") that the Adviser shall, from time to time, direct and that
the Subadviser shall accept.
2. ACCEPTANCE OF APPOINTMENT BY SUBADVISER. The Subadviser hereby accepts
the engagement by the Adviser in the foregoing capacity and agrees, at the
Subadviser's own expense, to render the services set forth herein and to provide
the office space, furnishings, equipment, and personnel required by the
Subadviser to perform these services on the terms and for the compensation
provided in this Agreement.
3. SERVICES TO BE PROVIDED BY SUBADVISER. In particular, the Subadviser
shall furnish continuously an investment program for a Portfolio Segment and
shall determine from time to time in the Subadviser's discretion the securities
and other investments to be purchased or sold or exchanged and what portions of
the Portfolio Segment shall be held in various securities, cash, or other
investments. In this connection, the Subadviser shall provide the Adviser, and
the Fund's Board and officers, with any reports and documentation as the
Adviser, the Fund's Board and officers, shall reasonably request regarding the
Subadviser's management of the Portfolio Segment assets. The Subadviser shall
not delegate any of the Subadviser's duties under this Agreement to any other
subadviser without the consent and approval of the Fund's Board and a majority
of those trustees who are not parties to this Agreement or "interested persons"
of any party; provided, that, in the event the Subadviser is authorized to so
delegate, the Subadviser shall retain overall responsibility for these delegated
powers and functions and any and all obligations and liabilities in connection
therewith.
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4. COMPLIANCE BY SUBADVISER WITH PORTFOLIO POLICIES AND APPLICABLE LAW.
The Subadviser shall carry out the Subadviser's responsibilities under this
Agreement in compliance with: (a) a Portfolio's investment objective, policies,
and restrictions, as set forth in the Fund's current registration statement, as
amended from time to time; (b) any policies or directives as the Fund's Board
may from time to time establish or issue and communicate to the Adviser in
writing; and (c) applicable law and related regulations. The Adviser shall
promptly notify the Subadviser in writing of changes to (a) or (b) above and
shall notify the Subadviser in writing of changes to (c) above promptly after
the Adviser becomes aware of these changes.
5. SUBADVISER'S DUTIES REGARDING PORTFOLIO TRANSACTIONS.
(a) PLACEMENT OF ORDERS. The Subadviser shall take all actions the
Subadviser considers necessary to implement the investment policies of
a Portfolio, and, in particular, to place all orders for the purchase
or sale of securities or other investments for the Portfolio Segment
with brokers or dealers the Subadviser selects, and, to that end, the
Subadviser is authorized as the Fund's agent to give instructions to
the Fund's custodian as to deliveries of securities or other
investments and payments of cash for the Portfolio's account. In
connection with the selection of brokers or dealers and the placement
of purchase and sale orders, the Subadviser is directed at all times to
seek to obtain best execution and price within the policy guidelines
determined by the Fund's Board and set forth in the Fund's current
registration statement.
(b) SELECTION OF BROKERS AND DEALERS. To the extent permitted by the
policy guidelines set forth in the Fund's current registration
statement, in the selection of brokers and dealers to execute portfolio
transactions, the Subadviser is authorized to consider not only the
available prices and rates of brokerage commissions, but also other
relevant factors, which may include, without limitation: the execution
capabilities of the brokers and dealers; the research, custody, and
other services provided by the brokers and dealers that the Subadviser
believes will enhance the Subadviser's general portfolio management
capabilities; the size of the transaction; the difficulty of execution;
the operational facilities of these brokers and dealers; the risk to
this broker or dealer of positioning a block of securities; and the
overall quality of brokerage and research services provided by these
brokers and dealers. In connection with the foregoing, the Subadviser
is specifically authorized to pay those brokers and dealers who provide
brokerage and research services to the Subadviser, a higher commission
than that charged by other brokers and dealers if the Subadviser
determines in good faith that the amount of the commission is
reasonable in relation to the value of these services in terms of
either the particular transaction or in terms of the Subadviser's
overall responsibilities with respect to the Portfolio Segment and to
any other client accounts or portfolios that the Subadviser advises.
The execution of these transactions shall not be considered to
represent an unlawful breach of any duty created by this Agreement or
otherwise.
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(c) SOFT DOLLAR ARRANGEMENTS. On an ongoing basis, but not less often
than annually, the Subadviser shall identify and provide a written
description to the Adviser and Fund of all "soft dollar" arrangements
that the Subadviser maintains with respect to a Portfolio Segment or
with brokers or dealers that execute transactions for the Portfolio
Segment. Prior to the commencement of the active management of a
Portfolio Segment, and periodically thereafter, but not less often than
annually, the Subadviser shall provide the Adviser and Fund with a
written description of all arrangements with third parties and other
individuals, entities, brokers, or money management firms that have or
may receive or share in the payment of fees for services in connection
with securing or continuing this Agreement.
(d) AGGREGATED TRANSACTIONS. The Subadviser also is authorized to
aggregate purchase and sale orders for securities held (or to be held)
in a Portfolio Segment with similar orders being made on the same day
for other client accounts or portfolios that the Subadviser manages.
When an order is so aggregated: (1) the actual prices applicable to the
aggregated transaction will be averaged, and the Portfolio Segment and
each other account or portfolio participating in the aggregated
transaction shall be treated as having purchased or sold the Portfolio
Segment's portion of the securities at this average price; and (2) all
transaction costs incurred in effecting the aggregated transaction
shall be shared on a pro-rata basis among the accounts or portfolios
(including the Portfolio Segment) participating in the transaction.
When recommending or effecting a transaction in a particular security
or investment for more than one client account or portfolio (including
the Portfolio Segment), the Subadviser may allocate the recommendations
or transactions among all accounts and portfolios for whom the
recommendation is made or transaction is effected on a basis that the
Subadviser considers equitable. The Adviser recognizes that in some
cases this procedure may adversely affect the size of the position
obtainable for a Portfolio Segment.
6. NON-EXCLUSIVITY OF SUBADVISER'S SERVICES. The Subadviser's services
under this Agreement are not exclusive. The Subadviser may provide the same or
similar services to other clients. The Adviser acknowledges that, except when
transactions for multiple clients are aggregated, transactions in a specific
security or other investment may not be recommended or executed at the same time
or price for all client accounts or portfolios (including a Portfolio Segment)
for which that security or investment is recommended or executed. This Agreement
does not require the Subadviser to give priority to a Portfolio Segment over
other client accounts or portfolios. The Subadviser shall for all purposes
herein be deemed to be an independent contractor and shall, unless otherwise
expressly provided or authorized, have no authority to act for or represent the
Adviser, the Fund, or a Portfolio or otherwise be deemed an agent of the
Adviser, the Fund, or the Portfolio.
7. DELEGATION OF PROXY VOTING RIGHTS. The Adviser delegates the Adviser's
discretionary authority to exercise voting rights with respect to the securities
and other investments in a Portfolio Segment to the Subadviser. The Subadviser
shall exercise these voting rights unless and until the Adviser revokes this
delegation in writing. The Adviser may revoke this delegation
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at any time without cause. The Subadviser shall maintain and preserve a record,
in an easily accessible place for a period of not less than three (3) years, of
the Subadviser's voting procedures, and of the Subadviser's actual votes, and
the Subadviser shall supply this record to the Adviser, or any authorized
representative of the Adviser, upon the written request of the Adviser or the
Adviser's authorized representative, as appropriate.
8. AFFILIATED BROKERS. The Subadviser or any of the Subadviser's
affiliates may act as broker in connection with the purchase or sale of
securities or other investments for a Portfolio Segment, subject to: (a) the
requirement that the Subadviser seek to obtain best execution and price within
the policy guidelines determined by the Fund's Board and set forth in the Fund's
current registration statement; (b) the provisions of the Investment Advisers
Act of 1940, as amended (the "Advisers Act"); (c) the provisions of the
Securities Exchange Act of 1934, as amended, including, but not limited to,
Section 11(a) thereof; and (d) other applicable provisions of law. These
brokerage services are not within the scope of the duties of the Subadviser
under this Agreement. Subject to the requirements of applicable law and any
procedures adopted by Fund's Board, the Subadviser or the Subadviser's affiliate
may receive brokerage commissions, fees, or other remuneration from the
Portfolio or the Fund for these services in addition to the Subadviser's fees
for services under this Agreement.
9. CUSTODY. Nothing in this Agreement shall require the Subadviser to take
or receive physical possession of cash, securities, or other investments of a
Portfolio Segment.
10. REGISTRATION OF SUBADVISER. The Subadviser is registered as an
investment adviser with the U.S. Securities and Exchange Commission under the
Advisers Act. The Subadviser shall remain so registered throughout the term of
this Agreement and shall notify the Adviser immediately if the Subadviser ceases
to be so registered as an investment adviser.
11. REPRESENTATIONS AND COVENANTS OF SUBADVISER.
(a) The Subadviser: (1) is duly organized and validly existing under
North Carolina law with the power to own and possess the Subadviser's
assets and carry on the Subadviser's business as this business is now
being conducted; (2) has the authority to enter into and perform the
services contemplated by this Agreement; (3) is not prohibited by the
Investment Company Act of 1940, as amended (the "1940 Act"), or the
Advisers Act from performing the services contemplated by this
Agreement; (4) has met, and shall continue to seek to meet for the
duration of this Agreement, any other applicable federal or state
requirements, or the applicable requirements of any regulatory or
industry self-regulatory agency, necessary to be met in order to
perform the services contemplated by this Agreement; and (5) shall
promptly notify the Adviser of the occurrence of any event that would
disqualify the Subadviser from serving as an investment adviser to an
investment company pursuant to Section 9(a) of the 0000 Xxx.
(b) The Subadviser will manage the amounts in a Portfolio in accordance
with the prospectus and statement of additional information, with
respect to the Portfolio, and in compliance with Section 817(h) of the
United States Internal Revenue Code of 1986, as amended (the "Code"),
to the extent applicable, and
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United States Treasury Regulation Section 1.817-5; furthermore, the
Subadviser will promptly inform the Adviser and Fund if any information
in the prospectus or statement of additional information, with respect
to the Portfolio, or if any action relating to the Subadviser or the
Subadviser's services to the Portfolio is (or will become) inaccurate,
incomplete, or no longer compliant with Code Section 817(h) or Section
1.817-5, supra.
12. REPRESENTATIONS AND COVENANTS OF ADVISER. The Adviser: (a) is duly
organized and validly existing under Pennsylvania law with the power to own and
possess the Adviser's assets and carry on the Adviser's business as this
business is now being conducted; (b) has the authority to enter into and perform
the services and other matters contemplated by this Agreement; (c) is not
prohibited by the 1940 Act or the Advisers Act from performing the services
contemplated by this Agreement; (d) has met, and shall continue to seek to meet
for the duration of this Agreement, any other applicable federal or state
requirements, or the applicable requirements of any regulatory or industry
self-regulatory agency, necessary to be met by the Adviser in order to perform
the services and other matters contemplated by this Agreement; and (e) shall
promptly notify the Subadviser of the occurrence of any event that would
disqualify the Adviser from serving as an investment adviser to an investment
company pursuant to Section 9(a) of the 1940 Act. The Adviser represents that
the Fund is (and during the term of this Agreement, will remain) registered as
an open-end management investment company under the 1940 Act and that the Fund's
shares representing an interest in a Portfolio are (and during the term of this
Agreement will remain) registered under the Securities Act of 1933 and under any
applicable state securities laws.
13. SUBADVISER CODE OF ETHICS. The Subadviser certifies that the Subadviser
has adopted a written code of ethics complying with the requirements of Rule
17j-1 under the 1940 Act, and that the Subadviser has instituted procedures
reasonably necessary to prevent Access Persons from violating the Subadviser's
code of ethics. The Subadviser will provide the Adviser and the Fund with a copy
of that code, together with evidence of the code's adoption. Within twenty (20)
days of the end of each calendar quarter during which this Agreement remains in
effect, the president or a vice president of the Subadviser shall certify to the
Adviser or the Fund that the Subadviser has complied with the requirements of
Rule 17j-1 during the previous quarter and that there have been no violations of
the Subadviser's code of ethics or, if a violation has occurred, that
appropriate action has been taken in response to the violation; provided, that,
no less frequently than annually, the appropriate officer of the Subadviser
shall furnish a written report to the Adviser that complies with the
requirements of Rule 17j-1 with respect to these reports regarding issues,
material violations, and any related sanctions in connection with the
administration of the code of ethics, or as otherwise required pursuant to Rule
17j-1. Upon written request of the Adviser or the Fund, the Subadviser shall
permit representatives of the Adviser or the Fund to examine the reports (or
summaries of the reports) required to be made to the Subadviser by Rule
17j-1(d)(1) and other records evidencing enforcement of the code of ethics.
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14. FEE PROVISIONS.
(a) FEE. For the services rendered, the facilities furnished, and the
expenses assumed by the Subadviser, the Adviser shall pay the
Subadviser quarterly fees, in arrears, based on the combined net assets
of all Portfolio Segments managed by the Subadviser, calculated daily
at the annual rate specified in an appendix to this Agreement, as this
appendix may be amended from time to time under this Agreement
("Appendix B"). The Subadviser's fee shall be accrued daily at 1/365th
of the applicable annual rate set forth in Appendix B. For the purpose
of accruing compensation, the net assets of a Portfolio Segment shall
be determined in the manner and on the dates set forth in the Fund's
current prospectus, and, on days on which the net assets are not so
determined, the net asset value computation to be used shall be as
determined on the immediately preceding day on which the net assets
were determined.
(b) SPECIAL FEE PROVISIONS. In the event of termination of this
Agreement, all compensation due through the date of termination will be
calculated on a pro-rated basis through the date of termination and
paid within thirty (30) business days of the date of termination.
During any period when the determination of net asset value is
suspended, the net asset value of the Portfolio as of the last business
day prior to the suspension shall for this purpose be deemed to be the
net asset value at the close of each succeeding business day until the
Portfolio's net asset value is again determined.
15. RECORDS.
(a) MAINTENANCE OF RECORDS. The Subadviser hereby undertakes and agrees
to maintain, in the form and for the period required by Rule 31a-2
under the 1940 Act, all records relating to a Portfolio Segment's
investments that are required to be maintained by the Fund pursuant to
the requirements of paragraphs (b)(5), (b)(6), (b)(7), (b)(9), (b)(10),
and (f) of Rule 31a-1 under the 1940 Act.
(b) OWNERSHIP OF RECORDS. The Subadviser agrees that all books and
records that the Subadviser maintains for a Portfolio or the Fund are
the Fund's property and further agrees to surrender promptly to the
Adviser or the Fund any books, records, or information upon the
Adviser's or the Fund's request; provided, however, that the Subadviser
may retain copies of the records. All the requested books and records
shall be made available, within five (5) business days of a written
request, to the Fund's accountants or auditors during regular business
hours at the Subadviser's offices. The Adviser and the Fund or either
of the Adviser's or Fund's authorized representatives shall have the
right to copy any records in the possession of the Subadviser that
pertain to a Portfolio or the Fund. These books, records, information,
or reports shall be made available to properly authorized government
representatives consistent with state and federal law and/or
regulations. In the event of the termination of this Agreement, all
these books, records, or other information shall be returned to the
Adviser or the Fund. The Subadviser agrees that the policies and
procedures the Subadviser has established for managing a Portfolio
Segment, including, but not limited to, all
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policies and procedures designed to ensure compliance with federal and
state regulations governing the Subadviser/client relationship and
management and operation of a Portfolio, shall be made available for
inspection by the Adviser and the Fund or either of the Adviser's or
Fund's authorized representatives not less frequently than annually.
16. CONFIDENTIALITY.
(a) NON-DISCLOSURE BY SUBADVISER. The Subadviser agrees that the
Subadviser will not disclose or use any records or confidential
information obtained pursuant to this Agreement in any manner
whatsoever, except as authorized in this Agreement or specifically by
the Adviser or the Fund, or if this disclosure or use is required by
federal or state regulatory authorities or by a court.
(b) NON-DISCLOSURE EXCEPTIONS. The Subadviser may disclose the
investment performance of a Portfolio and the Portfolio Segment;
provided, that the disclosure does not reveal the identity of the
Adviser, the Portfolio, or the Fund. The Subadviser may, however,
disclose that the Adviser, the Fund and a Portfolio are the
Subadviser's clients; provided, that the disclosure does not reveal the
investment performance or the composition of the Portfolio Segment.
17. LIMITATION OF LIABILITY OF SUBADVISER. In the absence of willful
misfeasance, bad faith, or gross negligence on the part of the Subadviser or the
Subadviser's directors, officers, directors, or employees, or reckless disregard
by the Subadviser of the Subadviser's duties under this Agreement (together,
"disabling conduct"), the Subadviser shall not be liable to the Adviser, a
Portfolio, or the Fund, or to any shareholder of the Portfolio for any act or
omission in the course of, or connected with, rendering services hereunder or
for any losses that may be sustained in the purchase, holding, or sale of any
security or other investment, except to the extent otherwise provided in Section
36(b) of the 1940 Act concerning loss resulting from a breach of fiduciary duty
with respect to the receipt of compensation for services.
18. SUBADVISER TO INDEMNIFY ADVISER. The Subadviser agrees to indemnify and
defend the Adviser, the Adviser's officers, directors, partners, employees, and
any person who controls the Adviser for any loss or expense (including
attorney's fees) arising out of any claim, demand, action, suit, or proceeding
arising out of any actual or alleged material misstatement or omission in the
Fund's registration statement, any proxy statement, or communication to current
or prospective investors in a Portfolio relating to disclosure about the
Subadviser in writing provided to the Adviser or the Fund by the Subadviser.
19. ADVISER TO INDEMNIFY SUBADVISER. The Adviser agrees to indemnify and
defend the Subadviser, the Subadviser's officers, directors, partners,
employees, and any person who controls the Subadviser for any loss or expense
(including attorney's fees) arising out of any claim, demand, action, suit, or
proceeding arising out of any actual or alleged material misstatement or
omission in the Fund's registration statement, any proxy statement, or other
communication to current or prospective investors in a Portfolio (other than a
misstatement or
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omission relating to disclosure about the Subadviser provided to the Adviser or
the Fund by the Subadviser).
20. DOCUMENT DELIVERY AND REVIEW. The Adviser shall furnish the Subadviser
with copies of the Fund's prospectus and statement of additional information,
proxy statements, sales literature, or any other material prepared for
distribution to its shareholders, or the public that refer in any way to the
Subadviser, and shall not use such material if the Subadviser reasonably objects
in writing within three (3) business days or such other time as may be agreed to
by the parties in writing after receipt thereof, as soon as practicable after
such documents become available. The Adviser shall ensure that materials
prepared by employees or agents of the Adviser that refer to the Subadviser in
any way are consistent with those materials previously approved by the
Subadviser, as referenced in the preceding sentence. The Adviser shall furnish
the Subadviser with any further documents, materials, or information that the
Subadviser may reasonably request in writing to perform the Subadviser's duties
pursuant to this Agreement.
21. EFFECTIVENESS. This Agreement shall not become effective with respect
to a Portfolio until the Agreement is approved by the Fund's Board, including a
majority of trustees who are not parties to this Agreement or "interested
persons" of any party to this Agreement, and, to the extent required by law, a
majority of the outstanding shares of the Portfolio. Subject to receipt of all
necessary approvals, this Agreement shall be effective as of the date, and for
the term, provided in Appendix A with respect to a Portfolio.
22. TERMINATION. This Agreement may be terminated with respect to a
Portfolio at any time without the payment of any penalty, by the Fund's Board,
or by vote of a majority of the outstanding shares of the Portfolio, on sixty
(60) days written notice to the Adviser and Subadviser, or by the Adviser or
Subadviser, on sixty (60) days written notice to the other. This Agreement shall
automatically terminate in the event of this Agreement's assignment or in the
event of the termination of the investment advisory agreement between the
Adviser and the Fund regarding the Adviser's management of the affected
Portfolio.
23. AMENDMENT. This Agreement may be amended with respect to a Portfolio in
writing by the parties only if the amendment is specifically approved by: (a) a
majority of those trustees who are not parties to this Agreement or "interested
persons" of any party cast in person at a meeting called for the purpose of
voting on the Agreement's approval; and (b) if required by applicable law, the
vote of a majority of outstanding shares of the affected Portfolio.
24. DEFINITIONS. The terms "assignment," "affiliated person," and
"interested person," when used in this Agreement, shall have the respective
meanings specified in Section 2(a) of the 1940 Act. The term "majority of the
outstanding shares" means the lesser of (a) sixty-seven percent (67%) or more of
the shares present at a meeting if more than fifty percent (50%) of these shares
are present or represented by proxy or (b) more than fifty percent (50%) of the
outstanding shares.
25. GOVERNING LAW. This Agreement shall be construed in accordance with
Pennsylvania law and applicable provisions of the Advisers Act and 1940 Act.
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26. SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule, or otherwise, the remainder of this
Agreement shall not be affected thereby.
27. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
Market Street Investment Management Company
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: President
ATTEST:
/s/ Xxxxx Xxxxxxxxx
---------------------------
Sterling Capital Management LLC
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: President
ATTEST:
/s/ Xxxxxxxxx XxXxxxxxxx
---------------------------
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APPENDIX A
TO THE INVESTMENT SUBADVISORY AGREEMENT BETWEEN MARKET
STREET INVESTMENT MANAGEMENT COMPANY AND
STERLING CAPITAL MANAGEMENT LLC
PORTFOLIO(S) EFFECTIVE DATE AND TERM
------------ -----------------------
All Pro Small Cap Value Portfolio The effective date of this Agreement with
respect to this Portfolio shall be as of
the close of business on the 2nd day of
March, 2001. The term of this Agreement
shall continue for two (2) years and
shall thereafter continue in effect from
year to year so long as the Agreement's
continuance is specifically approved at
least annually by: (a) the Fund's Board,
or by the vote of a majority of the
outstanding shares of the Portfolio, and
(b) a majority of those trustees who are
not parties to this Agreement or
interested persons of any party cast in
person at a meeting called for the
purpose of voting on the Agreement's
approval.
Market Street Investment Management Company
By: /s/ Xxxxx X. Xxxxx Date: 01/23/2001
--------------------------------------- -------------------
Name: Xxxxx X. Xxxxx
Title: President
Sterling Capital Management LLC
By: /s/ Xxxx X. Xxxxxx Date: 1/26/01
------------------------------------- -------------------
Name: Xxxx X. Xxxxxx
Title: President
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XXXXXXXX X
TO THE INVESTMENT SUBADVISORY AGREEMENT BETWEEN MARKET
STREET INVESTMENT MANAGEMENT COMPANY AND
STERLING CAPITAL MANAGEMENT LLC
PORTFOLIO(S) FEE
------------ ---
All Pro Small Cap Value Portfolio 0.70% of the combined average daily net
assets, calculated as described in
Section 14 of this Agreement.
Market Street Investment Management Company
By: /s/ Xxxxx X. Xxxxx Date: 01/23/2001
-------------------------------------- --------------------
Name: Xxxxx X. Xxxxx
Title: President
Sterling Capital Management LLC
By: /s/ Xxxx X. Xxxxxx Date: 1/26/01
-------------------------------------- --------------------
Name: Xxxx X. Xxxxxx
Title: President
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