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EXHIBIT 8(a)
CUSTODY AGREEMENT
THIS AGREEMENT is made as of this 12th day of December, 1985 by and
between Market Street Fund, Inc. (the "Fund"), a Maryland corporation, and
PROVIDENT NATIONAL BANK ("Provident"), a national banking association.
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end, diversified,
management investment company under the Investment Company Act of 1940, as
amended ("▇▇▇ ▇▇▇▇ ▇▇▇"), and is offering four units of beneficial interest,
$.01 par value per share ("Shares") known as the Class of Money Market
Portfolio shares, the Class of Bond Portfolio Shares, the Class of Growth
Portfolio shares and the Class of Managed Portfolio shares, collectively the
"Portfolios"; and
WHEREAS, the Fund desires to retain Provident to serve as the Fund's
custodian and Provident is willing to serve as the Fund's custodian;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Provident to act as
custodian of the portfolio securities, cash and other property of the Fund for
the period and on the terms set forth in this Agreement. Provident accepts
such appointment and agrees to furnish the services herein set forth in return
for the compensation as provided in Paragraph 22 of this Agreement. Provident
agrees to comply with all relevant provisions of the 1940 Act and applicable
rules and regulations thereunder.
2. Delivery of Documents. The Fund will furnish Provident with
copies properly certified or authenticated of each of the following:
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(a) Resolutions of the Fund's Board of Directors authorizing
the appointment of Provident as custodian of the portfolio securities, cash
and other property of each of the Fund's portfolios and approving this
Agreement;
(b) Incumbency and signature certificates identifying and
containing the signatures of the Fund's officers and/or other persons
authorized to sign Written Instructions, as hereinafter defined, on behalf
of the Fund;
(c) The Fund's Articles of Incorporation filed with the State
Secretary of the State of Maryland on March 21, 1985 and all amendments
thereto (such Articles of Incorporation, as currently in effect and as it
shall from time to time be amended, is herein called the "Articles");
(d) The Fund's Code of Regulations and all amendments thereto
(such Code of Regulations, as currently in effect and as it shall from time
to time be amended, is herein called the "Code");
(e) Resolutions of the Fund's Board of Directors appointing
Providentmutual Investment Management Company (the "Adviser") as the
investment adviser to the Fund and resolutions of the Fund's Board of
Directors and holders of shares of the Fund ("Shareholders") approving a
proposed Advisory Agreement between the Adviser and the Fund (the "Advisory
Agreement");
(f) Resolutions of the Fund's Board of Directors appointing
Provident Institutional Management Corporation ("PIMC") as the administrator
to the Fund for each portfolio and resolutions of the Fund's Board of
Directors and Shareholders of the Fund approving a proposed Administration
Agreement between the Fund and PIMC (the "Administration Agreement");
(g) Resolutions of the Fund's Board of Directors appointing PML
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Securities Inc. ("PML") as the distributor of the Fund's shares and
approving a proposed Distribution Agreement between PML and the Fund (the
"Distribution Agreement");
(h) Resolutions of the Fund's Board of Directors appointing
Provident Financial Processing Corporation ("PFPC") as the Fund's transfer
agent and approving a proposed Transfer Agency Agreement between the Fund
and PFPC (the "Transfer Agency Agreement");
(i) The Advisory Agreement, the Sub-Advisory Agreement, the
Distribution Agreement, the Administration Agreement, and the Transfer
Agency Agreement;
(j) The Fund's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act on Form N-8A with the Securities and Exchange
Commission ("SEC") on June 27, 1985;
(k) The Fund's Registration Statement on Form N-1A under the
1940 Act and the Securities Act of 1933, as amended ("▇▇▇ ▇▇▇▇ ▇▇▇"), as
filed with the SEC on December 16, 1985 (File No. 2-98755) relating to the
Fund's shares, and all amendments thereto; and
(l) The Fund's most recent prospectus for the Fund (such
prospectus as presently in effect and all amendments and supplements
thereto are herein called the "Prospectus").
The Fund will furnish Provident from time to time with copies of all
amendments of or supplements to the foregoing, if any.
3. Definitions.
(a) "Authorized Persons." As used in this Agreement, the term
"Authorized Person" means the Fund's President, Treasurer, and any other
person, whether or not any such person is an officer or employee of the
Fund, duly authorized by the Board of Directors of the Fund to give Oral and
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Written Instructions on behalf of the Fund and listed on the Certificate
annexed hereto as Appendix A or such other Certificate listing persons duly
authorized to give Oral and Written Instructions on behalf of the Fund as
may be received by Provident from time to time.
(b) "Book-Entry System." As used in this Agreement, the term
"Book-Entry System" means the Federal Reserve Treasury book-entry system for
United States and federal agency securities, its successor or successors and
its nominee or nominees, and any book-entry system maintained by a clearing
agency registered under Section 17A of the Securities Exchange Act of 1934.
(c) "Oral Instructions." As used in this Agreement, the term
"Oral Instructions" means oral instructions actually received by Provident
from an Authorized Person or from a person reasonably believed by Provident
to be an Authorized Person. The Fund agrees to deliver to Provident, at the
time and in the manner specified in Paragraph 8(b) of this Agreement,
Written Instructions confirming Oral Instructions.
(d) "Property." The term "Property," as used in this Agreement,
means:
(i) any and all securities and other property which
the Fund may from time to time deposit, or cause to be deposited, with
Provident with respect to the Fund or which Provident may from time to
time hold for the Fund with respect to each of the Fund's four
portfolios;
(ii) all income in respect of any of such securities or
other property;
(iii) all proceeds of the sale of any of such securities
or other property; and
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(iv) all proceeds of the sale of securities issued by
the Fund with respect to the portfolios which are received by
Provident from time to time from or on behalf of the fund.
(e) "Written Instructions." As used in this Agreement, the term
"Written Instructions" means written instructions delivered by mail, tested
telegram, cable, telex or facsimile sending device, and received by
Provident, signed by one Authorized Person except in the case of receipt and
disbursement of money pursuant to Paragraph 5(a)(iii) for which purpose
written instructions shall be signed by two Authorized Persons.
4. Delivery and Registration of the Property. The Fund will deliver
or cause to be delivered to Provident all securities and all monies with
respect to the portfolios owned by it, including cash received for the issuance
of Shares, at any time during the period of this Agreement. Provident will not
be responsible for such securities and such monies until actually received by
it. All securities delivered to Provident (other than in bearer form) shall be
registered in the name of the Fund or in the name of a nominee of the Fund or
in the name of Provident or any nominee of Provident, or in the name of any
subcustodian or any nominee of any such subcustodian appointed pursuant to
Paragraph 6 hereof, or shall be properly endorsed and in form for transfer
satisfactory to Provident.
5. Receipt and Disbursement of Money.
(a) Provident shall open and maintain a separate custodial
account or accounts for each portfolio in the name of the Fund, subject only
to draft or order by Provident acting pursuant to the terms of this
Agreement, and shall hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for the account of each
of the Portfolios. Provident shall make payments of cash to, or for the
account of, the Fund from such cash only (i) for the purchase of securities
as provided in Paragraph 12 hereof; (ii) for the redemption of Shares as
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provided in subparagraph (b) of Paragraph 9 hereof; (iii) upon receipt of
Written Instructions, for the payment of interest, dividends, taxes, or
custodial, transfer agency, administration, distribution or advisory fees or
expenses which are to be borne by the Fund under the terms of this
Agreement, the Transfer Agency Agreement, the Advisory Agreement, the
Sub-Advisory Agreement, the Administration Agreement and the Distribution
Agreement; (iv) upon receipt of Written Instructions, for payments in
connection with the conversion, exchange or surrender of securities owned or
subscribed to by the Fund and held by or to be delivered to Provident; (v)
to a subcustodian pursuant to Paragraph 6 hereof; or (vi) upon receipt of
Written Instructions, for other proper Fund purposes.
(b) Provident is hereby authorized to endorse and collect all
checks, drafts or other orders for the payment of money received as
custodian for the account of each of the Portfolios.
6. Receipt of Securities.
(a) Provident shall hold and physically segregate in a separate
account identifiable at all times from those of any other persons, firms, or
corporations, all securities and non-cash property received by it for the
account of each of the Portfolios. All such securities and non-cash
property are to be held or disposed of by Provident for each of the
Portfolios pursuant to the terms of this Agreement. In the absence of
Written Instructions accompanied by a certified resolution of the Fund's
Board of Directors authorizing the specific transaction, Provident shall
have no power or authority to withdraw, deliver, assign, hypothecate, pledge
or otherwise dispose of any such securities and investments except in
accordance with the express terms provided for in this Agreement. In no
case may any trustee, officer, employee or agent of the Fund withdraw any
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securities. In connection with its duties under this Paragraph 6, Provident
may, at its own expense, enter into subcustodian agreements with other banks
or trust companies for the receipt of certain securities and cash to be held
by Provident for the account of each of the Portfolios pursuant to this
Agreement; provided that each such bank or trust company has an aggregate
capital, surplus and undivided profits, as shown by its last published
report, of not less than 500,000 dollars ($500,000) and that such bank or
trust company agrees with Provident to comply with all relevant provisions
of the 1940 Act and applicable rules and regulations thereunder. Provident
shall remain responsible for the performance of all of its duties under this
Agreement and shall hold the Fund harmless from the acts and omissions of
any bank, or trust company, that it might choose pursuant to this Paragraph
6 except that Provident shall not be liable for any loss resulting from or
caused by direction of the Fund to maintain Custody of any Property in a
foreign country, including losses resulting from nationalization,
expropriation, currency restrictions or acts of war or terrorism.
(b) Promptly after the close of business each day, Provident
shall furnish the Fund with confirmation and a summary of all transfers to
or from the accounts of each of the Portfolios during said day. At least
monthly and from time to time, Provident shall furnish the Fund with a
detailed statement of the Property held for each of the Portfolios under
this Agreement.
7. Use of Book-Entry System. The Fund shall deliver to Provident a
certified resolution of the Board of Directors of the Fund approving,
authorizing and instructing Provident on a continuous and on-going basis until
instructed to the contrary by Oral or Written Instructions actually received by
Provident (i) to deposit in the Book-Entry System all securities of each
Portfolio eligible for
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deposit therein and (ii) to utilize the Book-Entry System to the extent
possible in connection with settlements of purchases and sales of securities by
each Portfolio of the Fund, and deliveries and returns of securities collateral
in connection with borrowings. Without limiting the generality of such use, it
is agreed that the following provisions shall apply thereto:
(a) Securities and any cash of each Portfolio of the
Fund deposited in the Book-Entry System will at all times be
segregated from any assets and cash controlled by Provident in other
than a fiduciary or custodian capacity but may be commingled with
other assets held in such capacities. Provident will pay out money
only upon receipt of securities and will deliver securities only upon
the receipt of money.
(b) All books and records maintained by Provident
which relate to the Fund's participation in the Book-Entry System will
at all times during Provident's regular business hours be open to the
inspection of the Fund's duly authorized employees or agents, and the
Fund will be furnished with all information in respect of the services
rendered to it as it may require.
(c) Provident will provide the Fund with copies of any
report obtained by Provident on the system of internal accounting
control of the Book-Entry System within ten days after receipt of such
a report by Provident. Provident will also provide the Fund with such
reports on its own system of internal control as the Fund may
reasonably request from time to time.
8. Instructions Consistent with Charter, etc.
(a) Unless otherwise provided in this Agreement,
Provident shall act only upon Oral and Written Instructions. Although
Provident may take cognizance of the provisions of the Articles and
Code of the Fund, Provident
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may assume that any Oral and Written Instructions received hereunder
are not in any way inconsistent with any provisions of such Articles
or Code or any vote, resolution or proceeding of the Shareholders, or
of the Board of Directors, or of any committee thereof.
(b) Provident shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received by
Provident pursuant to this Agreement. The Fund agrees to forward to
Provident Written Instructions confirming Oral Instructions in such
manner that the Written Instructions are received by Provident,
whether by hand delivery, telex, facsimile sending device or
otherwise, by the close of business of the same day that such Oral
Instructions are given to Provident. The Fund agrees that the fact
that such confirming Written Instructions are not received by
Provident shall in no way affect the validity of the transactions or
enforceability of the transactions authorized by the Fund by giving
Oral Instructions. The Fund agrees that Provident shall incur no
liability to the Fund in acting upon Oral Instructions given to
Provident hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an
Authorized Person.
9. Transactions Not Requiring Instructions. Provident is
authorized to take the following action without Oral or Written
Instructions:
(a) Deposits of Proceeds of Issuance of Shares. Provident
shall collect and receive for the account of each of the Portfolios
all payments received in payment for Shares of such Portfolios issued
by the Fund.
(b) Redemptions. Upon receipt of notice by the Fund's
transfer agent stating that such transfer agent is required to redeem
Shares and specifying the number and class of Shares which such
transfer agent is required to redeem and the date and time the request
or requests for
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redemption were received by the Fund's distributor, Provident shall
either (i) pay to such transfer agent, for distribution to the
redeeming Shareholder, the amount payable to such Shareholder upon the
redemption of such Shares as determined in the manner described in the
then current Prospectus, or (ii) arrange for the direct payment of
such redemption proceeds by Provident to the redeeming Shareholder in
accordance with such procedures and controls as are mutually agreed
upon from time to time by and among Provident, the Fund and the Fund's
transfer agent.
(c) Collection of Income and Other Payments.
Provident shall:
(i) collect and receive for the account of each
Portfolio, all income and other payments and distributions,
including (without limitation) stock dividends, rights, warrants
and similar items, included or to be included in the Property of
such Portfolios, and shall promptly advise the Fund of such
receipt and shall credit such income, as collected, to the Fund's
custodian account for each Portfolio,
(ii) endorse and deposit for collection, in the
name of the Fund, checks, drafts, or other orders for the payment
of money on the same day as received;
(iii) receive and hold for the account of each
Portfolio securities received as a distribution on the portfolio
securities of such Portfolio as a result of a stock dividend,
share split-up or reorganization, recapitalization, readjustment
or other rearrangement or distribution of rights or similar
securities issued with respect to any portfolio securities of such
Portfolio held by Provident hereunder;
(iv) present for payment and collect the amount
payable upon
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all securities which may mature or be called, redeemed, or
retired, or otherwise become payable on the date such securities
become payable; and
(v) take any action which may be necessary and
proper in connection with the collection and receipt of such
income, payments and other Property and the endorsement for
collection of checks, drafts, and other negotiable instruments.
(d) Miscellaneous Transactions. Provident is
authorized to deliver or cause to be delivered Property against
payment or other consideration or written receipt therefor in the
following cases:
(i) for examination by a broker selling for the
account of each Fund in accordance with street delivery custom;
(ii) for the exchange of interim receipts or
temporary securities for definitive securities; and
(iii) for transfer of securities into the name of
the Fund or Provident or a nominee of either, or for exchange
of securities for a different number of bonds, certificates, or
other evidence, representing the same aggregate face amount or
number of units bearing the same interest rate, maturity date and
call provisions, if any; provided that, in any such case, the new
securities are to be delivered to Provident.
10. Transactions Requiring Instructions. Upon receipt of Oral
or Written Instructions and not otherwise, Provident shall:
(a) execute and deliver to such persons as may be
designated in such Oral or Written Instructions, proxies, consents,
authorizations, and other instructions whereby the authority of the
Fund as owner of any securities may be exercised;
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(b) deliver any securities held for the Fund in
exchange for other securities or cash issued or paid in connection
with the liquidation, reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any corporation,
or the exercise of any conversion privilege;
(c) deliver any securities held for the Fund to any
protective committee, reorganization committee or other person in
connection with the liquidation, reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any corporation,
and receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(d) make such transfers or exchanges of the assets of
the Fund and take such other steps as shall be stated in said Oral or
Written Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation,
recapitalization or sale of assets of the Fund; and
(e) release securities belonging to the Fund to any
bank or trust company for the purpose of pledge or hypothecation to
secure any loan incurred by the Fund; provided, however, that
securities shall be released only upon payment to Provident of the
monies borrowed, except that in cases where additional collateral is
required to secure a borrowing already made, subject to proper prior
authorization, further securities may be released for that purpose;
and pay such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes
evidencing the loan.
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11. Dividends and Distributions. The Fund shall furnish Provident
with appropriate evidence of action by the Fund's Board of Directors declaring
and authorizing the payment of any dividends and distributions to the
Shareholders of a Portfolio. Upon receipt by Provident of Written Instructions
with respect to dividends and distributions declared by the Fund's Board of
Directors and payable to the Shareholders of a Portfolio who have elected in
the proper manner to receive their distributions and/or dividends in cash, and
in conformance with procedures mutually agreed upon by Provident, the Fund, and
the Fund's transfer agent, Provident shall pay to the Fund's transfer agent, as
agent for the Shareholders, an amount equal to the amount indicated in said
Written Instructions as payable by the Fund to such Shareholders for
distribution in cash by the transfer agent to such Shareholders. In lieu of
paying the Fund's transfer agent cash dividends and distributions, Provident
may arrange for the direct payment of cash dividends and distributions to
Shareholders by Provident in accordance with such procedures and controls as
are mutually agreed upon from time to time by and among the Fund, Provident and
the Fund's transfer agent.
12. Purchase of Securities. Promptly after each decision to purchase
securities for the Fund, the Fund, through the Adviser, shall deliver to
Provident Oral Instructions specifying with respect to each such purchase: (a)
the name of the issuer and the title of the securities; (b) the number of
shares or the principal amount purchased and accrued interest, if any; (c) the
date of purchase and settlement; (d) the purchase price per unit; (e) the total
amount payable upon such purchase; (f) the name of the person from whom or the
broker through whom the purchase was made; and (g) the Portfolio for which the
purchase was made. Provident shall, upon receipt of securities purchased by or
for a Portfolio, pay out of the monies held for the account of such Portfolio
the total amount payable to the person from whom or the broker through whom the
purchase was
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made, provided that the same conforms to the total amount payable as set forth
in such Oral Instructions.
13. Sales of Securities. Promptly after each decision to sell
securities for the Fund, the Fund, through the Adviser, shall deliver to
Provident Oral Instructions, specifying with respect to each such sale: (a) the
name of the issuer and the title of the security; (b) the number of shares or
principal amount sold, and accrued interest, if any; (c) the date of sale; (d)
the sale price per unit; (e) the total amount payable to the Fund upon such
sale; (f) the name of the broker through whom or the person to whom the sale
was made; and (g) the Portfolio for which the sale was made. Provident shall
deliver the securities upon receipt of the total amount payable to the Fund
upon such sale, provided that the same conforms to the total amount payable as
set forth in such Oral Instructions. Subject to the foregoing, Provident may
accept payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs prevailing
among dealers in securities.
14. Correspondence. Provident shall answer correspondence from
securities brokers and others relating to its duties hereunder and such other
correspondence as may from time to time be mutually agreed upon between
Provident and the Fund.
15. Records. Provident shall keep and maintain appropriate financial
books and records with respect to its duties hereunder for the Fund. The books
and records pertaining to the Fund which are in the possession of Provident
shall be the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable securities laws
and rules and regulations. The Fund, or the Fund's authorized representatives,
shall have access to such books and records at all times during Provident's
normal
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business hours: Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by Provident to the Fund or the Fund's
authorized representative at the Fund's expense.
16. Reports. Provident shall furnish the Fund with the following
reports: (a) such periodic and special reports as the Fund may reasonably
request; (b) a monthly statement summarizing all transactions and entries for
the account of each Portfolio; (c) a monthly report of portfolio securities
belonging to each Portfolio showing the adjusted average cost of each issue and
the market value at the end of such month; (d) a monthly report of the cash
account of each Portfolio showing disbursements; and (e) such other information
as may be agreed upon from time to time between the Fund and Provident.
17. Cooperation with Accountants. Provident shall cooperate with the
Fund's independent certified public accountants and shall take all reasonable
action in the performance of its obligations under this Agreement to assure
that the necessary information is made available to such accountants for the
expression of their unqualified opinion, as such may be required by the Fund
from time to time.
18. Confidentiality. Provident agrees on behalf of itself and its
employees to treat confidentially and as the proprietary information of the
Fund all records and other information relative to the Fund and its prior,
present or potential Shareholders and relative to PML and its prior, present or
potential customers, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder,
except after prior notification to and approval in writing by the Fund, which
approval shall not unreasonably be withheld and may not be withheld where
Provident may be exposed to civil or criminal contempt proceedings for failure
to comply, when requested to divulge this information by duly constituted
authorities, or when so requested by the Fund.
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19. Equipment Failure. In the event of equipment failures,
Provident shall, at no additional expense to the Fund, use its best efforts and
take reasonable steps to minimize service interruptions. Provident shall enter
into and shall maintain in effect with appropriate parties one or more
agreements making reasonable provision for emergency use of electronic data
processing equipment to the extent appropriate equipment is available.
20. Right to Receive Advice.
(a) Advice of Company. If Provident shall be in doubt
as to any action to be taken or omitted by it, it may request, and
shall receive, from the Fund directions or advice, including Oral or
Written Instructions where appropriate.
(b) Advice of Counsel. If Provident shall be in doubt
as to any question of law involved in any action to be taken or
omitted by Provident, it may request advice at its own cost from
counsel of its own choosing (who may be counsel for the Adviser, PIMC,
PFPC, PML, the Fund, or Provident, at the option of Provident).
(c) Conflicting Advice. In case of conflict between
directions or advice (including Oral or Written Instructions) received
by Provident pursuant to subparagraph (a) of this paragraph and advice
received by Provident pursuant to subparagraph (b) of this paragraph,
Provident shall be entitled to rely on and follow the advice received
pursuant to the latter provision alone.
(d) Protection of Provident. Provident shall be
protected in any action or inaction which it takes in reliance on any
directions or advice (including Oral and Written Instructions)
received pursuant to subparagraphs (a) or (b) of this paragraph which
Provident, after receipt of such directions or advice, reasonably and
in good faith believes to be
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consistent with such directions or advice, as the case may be.
However, nothing in this paragraph shall be construed as imposing upon
Provident any obligation (i) to seek such directions or advice
(including Oral or written Instructions), or (ii) to act in accordance
with such directions or advice when received, unless, under the terms
of another provision of this Agreement, the same is a condition to
Provident's properly taking or omitting to take such action. Nothing
in this subsection shall excuse Provident when an action or omission
on the part of Provident constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard by Provident of its duties
under this Agreement.
21. Compliance with Governmental Rules and Regulations. The
Fund assumes full responsibility for insuring that the contents of each
prospectus of the Fund complies with all applicable requirements of the 1933
Act, the 1940 Act, and any laws, rules and regulations of governmental
authorities having jurisdiction.
22. Compensation. As sole compensation for the services
rendered by Provident during the term of this Agreement, the Fund will pay to
Provident such monthly fees as the parties may agree upon from time to time in
writing.
23. Indemnification. The Fund, as sole owner of the Property,
agrees to indemnify and hold harmless Provident and its nominees from all
taxes, charges, expenses, assessments, claims and liabilities (including,
without limitation, liabilities arising under the 1933 Act, the Securities
Exchange Act of 1934, the 1940 Act, and any state and foreign securities and
blue sky laws, all as or to be amended from time to time) and expenses,
including (without limitation) attorneys' fees and disbursements, arising
directly or indirectly (a) from the fact that securities included in the
Property are registered in the name of any such nominee or (b) without limiting
the generality of the foregoing
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clause (a) from any action or thing which Provident takes or does or omits to
take or do (i) at the request or on the direction of or in reliance on the
advice of the Fund (ii) upon Oral or Written Instructions, provided, that
neither Provident nor any of its nominees shall be indemnified against any
liability to the Fund or to its Shareholders (or any expenses incident to such
liability) arising out of (x) Provident's or such nominee's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its duties
under this Agreement or (y) Provident's own negligent failure to perform its
duties under this Agreement.
24. Responsibility of Provident. Provident shall be under no
duty to take any action on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by Provident in writing. In the
performance of its duties hereunder, Provident shall be obligated to exercise
care and diligence and to act in good faith and to use its best efforts within
reasonable limits to ensure the accuracy of all services performed under this
Agreement. Provident shall not be liable for any act or omission which does
not constitute willful misfeasance, bad faith or gross negligence on the part
of Provident provided that such act or omission is not done in performance of
specific requirements of this Agreement. Provident shall be responsible for its
own negligent failure to perform its duties under this Agreement. Without
limiting the generality of the foregoing or of any other provision of this
Agreement, Provident, in connection with its duties under this Agreement, shall
not be under any duty or obligation to inquire into and shall not be liable for
or in respect of (a) the validity or invalidity or authority or lack thereof of
any Oral or Written Instruction, notice or other instrument which conforms to
the applicable requirements of this Agreement, if any, and which Provident
reasonably believes to be genuine; (b) the validity or invalidity of the
issuance of any securities included or to be included in the Property, the
legality or illegality of the purchase of such
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securities, or the propriety or impropriety of the amount paid therefor; (c)
the legality or illegality of the sale (or exchange) of any Property or the
propriety or impropriety of the amount for which such Property is sold (or
exchanged); or (d) delays or errors or loss of data occurring by reason of
circumstances such as acts of civil or military authority, national
emergencies, labor difficulties, fire, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply, nor shall Provident be under any duty or obligation to
ascertain whether any Property at any time delivered to or held by Provident
may properly be held by or for the Fund.
25. Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by Provident) shall be at the sole risk of the Fund. In
any case in which Provident does not receive any payment due the Fund within a
reasonable time after Provident has made proper demands for the same, it shall
so notify the Fund in writing, including copies of all demand letters, any
written responses thereto, and memoranda of all oral responses thereto and to
telephonic demands, and await instructions from the Fund. Provident shall not
be obliged to take legal action for collection unless and until reasonably
indemnified to its satisfaction. Provident shall also notify the Fund as soon
as reasonably practicable whenever income due on securities is not collected in
due course.
26. Duration and Termination. This Agreement shall continue until
termination by the Fund or Provident on sixty (60) days written notice. Upon
any termination of this Agreement, pending appointment by the Fund of a
successor to Provident or vote of the Shareholders of the Portfolios to
dissolve or to function without a custodian of its cash, securities or other
property, Provident shall not deliver cash, securities or other property of the
Fund to the Fund, but may deliver them to a bank or trust company of its own
selection, having an
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aggregate capital, surplus and undivided profits, as shown by its last
published report of not less than twenty million dollars ($20,000,000) as a
custodian for the Fund to be held under terms similar to those of this
Agreement. Provident acknowledges that this Agreement does not constitute a
charge on or against the properties of the Fund then held by Provident.
27. Notices. All notices and other communications, including
Written Instructions (collectively referred to as "Notice" or "Notices" in this
paragraph), hereunder shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notices shall be addressed (a) if to
Provident at Provident's address, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, marked for the attention of the Custodian Services
Department (or its successor); (b) if to the Fund, at the address of the Fund;
or (c) if to neither of the foregoing, at such other address as shall have been
notified to the sender of any such Notice or other communication. If the
location of the sender of a Notice and the address of the addressee thereof
are, at the time of sending, more than 100 miles apart, the Notice may be sent
by first-class mail, in which case it shall be deemed to have been given three
days after it is sent, or if sent by confirming telegram, cable, telex or
facsimilar sending device, it shall be deemed to have been given immediately,
and if the location of the sender of a Notice and the address of the addressee
thereof are, at the time of sending, not more than 100 miles apart, the Notice
may be sent by first-class mail, in which case it shall be deemed to have been
given two days after it is sent, or if sent by messenger, it shall be deemed to
have been given on the day it is delivered, or if sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been given
immediately. All postage, cable, telegram, telex and facsimile sending device
charges arising from the sending of a Notice hereunder shall be paid by the
sender.
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28. Further Actions. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
29. Amendments. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
30. Delegation. On thirty (30) days' prior written notice to the
Fund, Provident may assign its rights and delegate its duties hereunder to any
wholly-owned subsidiary of it or PNC Financial Corp, provided that Provident
may delegate its duties only to a bank having the qualifications provided in
Section 17(f) of the 1940 Act, and further provided that Provident and its
delegate shall promptly provide such information as the Fund may request and
respond to such questions as the Fund may ask relative to the delegation,
including (without limitation) the capabilities of the delegate.
31. The names "Market Street Fund, Inc." and "Directors of Market
Street Fund, Inc." refer respectively to the Fund created and the Directors, as
directors but not individually or personally, acting from time to time under
the Articles of Incorporation dated March 21, 1985 which is hereby referred to
and a copy of which is on file at the office of the State Secretary of the
State of Maryland and at the principal office of the Fund. The obligations of
"Market Street Fund Inc." entered into in the name or on behalf thereof by any
of the Directors, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Directors, Shareholders,
or representatives of the Fund personally, but bind only the Fund Property, and
all persons dealing with any class of shares of the Fund must look solely to
the Fund Property belonging to such class for the enforcement of any claims
against the Fund.
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32. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided that the
parties hereto may embody in one or more separate documents their agreement, if
any, with respect to delegated and/or Oral or Written Instructions. 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. This Agreement shall be deemed to be a contract
made in Pennsylvania and governed by Pennsylvania law. 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.
This Agreement shall be binding and shall inure to the benefit of the parties
hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their officers designated below as of the day and year first
above written.
[Seal] MARKET STREET FUND, INC.
Attest: [sig] By: [sig]
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[Seal] PROVIDENT NATIONAL BANK
Attest: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: [sig]
--------------------------- -----------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
VICE PRESIDENT & SECRETARY
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