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EXHIBIT 8(e)
CUSTODIAL SERVICES AGREEMENT
AGREEMENT dated as of October 31, 1991, between CITIBANK, N.A., a
national banking association, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Bank"), and The Market Street Fund a corporation organized
under the laws of the State of Maryland having an office at ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company").
W I T N E S S E T H :
THAT WHEREAS, the Board of Directors of the Company, at a meeting held
October 25, 1991 has adopted resolutions, copies of which are attached hereto
as Exhibit A, which, in part, authorize the Company to open and maintain a
custody account (the "Custody Account") with the Bank to hold certain property
of the International Portfolio of the Market Street Fund ("Property") including
but not limited to stocks, bonds, or other securities ("Securities"), funds and
other property owned or held by the Company and authorize the Company's entry
into this Agreement;
NOW, THEREFORE, in consideration of the premises and of the agreements
hereinafter set forth, the parties hereby agree as follows:
1. APPOINTMENT AND ACCEPTANCE
The Company hereby appoints the Bank as custodian of the Property,
and the Bank agrees to act as such upon the terms and conditions
hereinafter provided.
2. DELIVERY; SAFEKEEPING
The Company has heretofore delivered or will deliver Property to
the Bank, and will deliver or cause to be delivered to the Bank,
Property hereafter acquired, which Property the Bank agrees to
keep safely as custodian for the Company. The Bank shall not
surrender possession of Property except upon properly authorized
instructions of the Company.
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3. IDENTIFICATION AND SEGREGATION OF ASSETS
With respect to Property in the Custody Account:
(a) The Bank will segregate and identify on its books as
belonging to the Company all Property held by the Bank or
any other entity authorized to hold Property in accordance
with Section 6 or 7 hereof.
(b) The Bank shall supply to the Company from time to time as
mutually agreed upon a written statement with respect to
all of the Property in the Custody Account. In the event
that the Company does not inform the Bank in writing of any
exceptions or objections within a reasonable time after
receipt of such statement, the Company shall be deemed to
have approved such statement.
4. STANDARD OF CARE
The Bank assumes full responsibility to exercise the same standard
of care that it exercises over its own assets in the safekeeping,
handling, servicing and disposition of the Property, in
accordance with this Agreement. The Bank will exercise the due
care expected of a professional custodian for hire with respect to
the Property in its possession or control and shall assume the
burden of proving that it exercised such care in the event of any
loss of such Property.
The Bank is not under any duty to supervise the investments of the
Company, or to advise or make any recommendation to the Company
with respect to the purchase or sale of any of the Securities or
the investment of any funds.
5. PERFORMANCE BY THE BANK
(a) RECEIPT, DELIVERY AND DISPOSAL OF SECURITIES.
The Bank shall, or shall instruct any other entity
authorized to hold Property in accordance with Section 6 or
7 hereof, to receive or deliver Securities and credit or
debit the Company's account, in accordance with properly
authorized instructions from the Company. The Bank or such
entity shall also receive in custody
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all stock dividends, rights and similar securities issued
in connection with Securities held hereunder, shall
surrender for payment, in a timely manner, all items
maturing or called for redemption and shall take such other
action as the Company may direct in properly authorized
instructions.
(b) TRADE EXECUTION.
The Company may from time to time place orders with the
Bank to buy or sell Securities. The Bank or any entity
authorized to hold Property in accordance with Section 7
hereof may, unless otherwise specified, refer each such
order to any broker or sub-agent of its choice, including an
affiliate of the Bank, and shall have no liability or
responsibility whatsoever for any error, neglect or default
of any such broker or sub-agent or for mutilations,
interruptions, omissions, errors or delays occurring in the
mails, or on the part of any telegraph, cable or wireless
company, or any employee of such company, or by reason of
any cause beyond its control. In placing such orders, the
Company may from time to time place special orders with the
Bank which will, as agent, undertake the purchase or sale
of the Securities as set out above; provided that if the
order is for the purchase or sale of obligations of the
United States Government or its agencies, or state or
municipal bonds, the Bank may act as principal. The Company
hereby agrees, with respect to all purchases, that funds
for settlement will be on deposit by the settlement date.
Further, the Company agrees to provide specific
instructions regarding the deposit or delivery of all such
Securities to the Custody Account.
(c) REGISTRATION.
Securities held hereunder may be registered in the name of
the Bank, any entity authorized to hold Property in
accordance with Section 6 or 7 hereof, or a nominee of the
Bank or any such authorized entity, and the Company shall
be informed upon request of all such registrations. The
Securities in registered form will be transferred upon
request of the Company into such names
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or registrations as it may specify in properly authorized
instructions.
(d) CASH ACCOUNTS.
All cash received or held by the Bank or by any entity
authorized to hold Property in accordance with Section 7
hereof as interest, dividends, proceeds from transfer, and
other payments for or with respect to the Securities shall
be (i) held in a cash account in accordance with properly
authorized instructions received by the Bank, or (ii)
converted and remitted to the Company at the Company's
risk. In effecting any currency conversions hereunder, the
Bank or such entity may use such methods or agencies as it
may see fit including the Bank's facilities at customary
rates.
(e) REPORTS, RECORDS, AFFIDAVITS AND ACCESS.
If the Bank has in place a system for providing
telecommunication access or other means of direct access by
customers to the Bank's reporting system for Property in
the Custody Account, then, at the Company's election, the
Bank shall provide the Company with such instructions and
passwords as may be necessary in order for the Company to
have such direct access through the Company's terminal
device. Such direct access shall be restricted to
information relating to the Custody Account. Where direct
access to such reporting system is requested by the
Company, the Company agrees to assume full responsibility
for the use, including any misuse or unauthorized use of
the terminal device that is caused by the Company and not
an unrelated third party, instructions or passwords
referred to above and agrees to defend and indemnify the
Bank and hold the Bank harmless from and against any and
all liabilities, losses, damages, costs, counsel fees, and
other expenses suffered or incurred by the Bank by reason
of or in connection with such use by the Company of such
terminal device, unless such liabilities, losses, damages,
costs, counsel fees and other expenses can be shown to be
the result of negligent or wrongful acts of the Bank, the
Bank's employees or the Bank's agents. Further, where the
Company elects to have
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direct access, the Bank shall provide the Company on each
business day a report of the preceding business day's
transactions relating to such accounts and of the closing
or net balances of each business day. If the Company
should not choose to have direct access, the Bank shall
provide the Company with such reports of transactions in
the Custody Account by such means as may be mutually agreed
upon.
During the Bank's regular banking hours and upon receipt of
reasonable notice from the Company, any officer or employee
of the Company, any independent accountant(s) selected by
the Company and any person designated by any regulatory
authority having jurisdiction over the Company shall be
entitled to examine on the Bank's premises, Property held
by the Bank on its premises and the Bank's records
regarding Property held hereunder deposited with entities
authorized to hold Property in accordance with Section 6 or
7 hereof, but only upon the Company's furnishing the Bank
with properly authorized instructions to that effect,
provided, such examination shall be consistent with the
Bank's obligations of confidentiality to other parties.
The Bank's costs and expenses in facilitating such
examinations and providing such reports and documents,
including but not limited to the cost to the Bank of
providing personnel in connection with examinations shall
be borne by the persons or agencies making such
examinations or receiving such reports or documents,
provided that such costs and expenses shall not be deemed
to include the Bank's costs in providing to the Company:
(i) the "single audit report" of the independent certified
public accountants engaged by the Bank; and (ii) such
reports and documents as this Agreement contemplates that
the Bank shall furnish routinely to the Company.
The Bank shall also seek to obtain from any entity with
which the Bank maintains the physical possession of any of
the Property in the Custody Account such records of such
entity relating to the Custody Account as may be required
by the Company or its
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agents in connection with an internal examination by the
Company of its own affairs. Upon a reasonable request from
the Company, the Bank shall use its best efforts to furnish
to the Company such reports (or portions thereof) of the
external auditors of each such entity as relate directly to
such entity's system of internal accounting controls
applicable to its duties under its agreement with the Bank.
The Bank shall supply to the Corporation from time to time,
written operational procedures which shall govern the day
to day operations of the account. Such operating
procedures are hereby incorporated herein by reference.
(f) VOTING AND OTHER ACTION.
The Bank will transmit to the Company upon receipt, and
will instruct any entities authorized to hold Property in
accordance with Section 6 or 7 hereof to transmit to the
Company upon receipt, all financial reports, stockholder
communications, notices, proxies and proxy soliciting
materials received from issuers of the Securities, and all
information relating to exchange or tender offers received
from offerors with respect to the Securities. Such proxies
will be executed by the registered holder if the registered
holder is other than the Company, but the manner in which
the Securities are to be voted will not be indicated.
Specific instructions regarding proxies will be provided
when necessary. Neither the Bank nor any such entity shall
vote any of the Securities or authorize the voting of any
Securities or give any consent or take any other action
with respect thereto, except as otherwise provided herein.
In the event of tender offers, the Company will mail
instructions to the Bank as to the action to be taken with
respect thereto or telephone such instructions to its
Citibank account administrator at the Bank, designating
such instructions as being related to a tender offer. The
Company shall deliver to the Bank, by 5:00 P.M.,
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New York time on the following calendar day, written
confirmation of telephonic instructions.
The Company agrees that if it gives an instruction and such
instruction is not received by the Bank for the performance
of an act on the last permissible date of a period
established by the tender offer or for the performance of
such act or that if it fails to provide next day written
confirmation of an oral instruction, the Company shall hold
the Bank harmless from any adverse consequences of failing
to follow said instructions.
The Bank is authorized to accept and open in the Company's
behalf all mail or communications received by it or
directed in its care.
6. AUTHORIZED USE OF U.S. DEPOSITORIES
The Company authorizes the Bank, for any Securities held
hereunder, to use the services of any United States
securities depository permitted to perform such services
for registered investment companies and their custodians
under Rule 17f-4 under the Investment Company Act of 1940
(the "Act"), including but not limited to, the Depository
Trust Company and the Federal Reserve Book Entry System.
7. USE OF FOREIGN CUSTODIANS
(a) AUTHORIZATION.
The Bank may cause Securities which are foreign
securities within the meaning of Rule 17f-5(c)(1)
under the Act ("Foreign Securities") and amounts
of cash and cash equivalents reasonably required
to effect the Company's Foreign Securities
transactions ("Cash") in the Custody Account to be
held in such country or other jurisdiction as the
Company shall direct in properly authorized
instructions.
The Bank may hold such Foreign Securities and Cash
in subcustody accounts, which shall be deemed part
of the Custody Account and which have been
established by the Bank with (i)
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branches of "Qualified U.S. Banks", as defined in
Rule 17f-5(c)(3) under the Act ("Branches"), or
(ii) foreign custodians which satisfy the
provisions of Rule 17f-5(c)(2)(i) or (ii) under
the Act, or which are exempt from such provisions
under an order or release issued by the Securities
and Exchange Commission, and which the Company has
approved in accordance with the following
procedure ("Eligible Foreign Custodians"). In
order to approve a foreign custodian, the Company
shall approve both the use of and the Bank's
contract with the foreign custodian by resolution
and shall present a certified copy of such
resolution to the Bank.
The Bank, a Branch or an Eligible Foreign
Custodian is authorized to hold such Foreign
Securities in an account with any foreign
securities depository or foreign clearing agency
which satisfies the provisions of Rule
17f-5(c)(iii) or (iv) under the Act, or which is
exempt from such provisions under an order or
release issued by the Securities and Exchange
Commission, and which the Company has approved in
accordance with the following procedure ("Eligible
Foreign Securities Depository"). In order to
approve a foreign securities depository, the
Company shall approve the use of such foreign
securities depository and a written description of
the names in which such depository will maintain
the Company's assets by resolution and shall
present a certified copy of such resolution to the
Bank.
(b) PROVISION OF INFORMATION REGARDING FOREIGN
CUSTODIANS AND SECURITIES DEPOSITORIES.
(1) The Bank shall use its best efforts to
assist the Company in obtaining the
following:
(A) Information concerning whether,
and to what extent, applicable
foreign law would restrict the
access afforded the Company's
independent public accountants to
books and records kept by a
foreign custodian or foreign
securities depository used in
that country;
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(B) Information concerning whether,
and to what extent, applicable
foreign law would restrict the
Company's ability to recover its
assets in the event of the
bankruptcy of a foreign custodian
or foreign securities depository
used in that country;
(C) Information concerning whether,
and to what extent, applicable
foreign law would restrict the
Company's ability to recover
assets that are lost while under
the control of a foreign
custodian or foreign securities
depository used in that country;
and
(D) Information concerning whether
under applicable foreign currency
exchange regulations, the
Company's cash and cash
equivalents held in that country
are readily convertible to U.S.
dollars.
(E) Information relating to whether
each foreign custodian or foreign
securities depository used would
provide a level of safeguards for
maintaining the Company's assets
not materially different from
that provided by the Bank in
maintaining the Securities in the
United States;
(F) Information concerning whether
each foreign custodian or foreign
securities depository used has
offices in the United States in
order to facilitate the assertion
of jurisdiction over and
enforcement of judgments against
such custodian or depository; and
(G) As to each foreign securities
depository used, information
concerning the number of
participants in, and operating
history of, such depository.
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(2) During the term of this Agreement, the
Bank shall use its best efforts to
provide the Company with prompt notice
of any material changes in the facts
or circumstances upon which any of the
foregoing information or statements
were based.
(3) Notwithstanding any of the foregoing
provisions of this subsection (b) of
this Section 7, the Bank's undertaking
to assist the Company in obtaining the
information referred to in this
subsection (b) of this Section 7 shall
neither increase the Bank's duty of
care nor reduce the Company's
responsibility to determine for itself
the prudence of entrusting its assets
to any particular foreign custodian or
foreign securities depository.
(c) SEGREGATION AND IDENTIFICATION OF ASSETS.
The Bank will deposit Property of the
Company with a Branch or an Eligible
Foreign Custodian only in an account which
holds exclusively the assets of the Bank as
custodian for its customers. In the event
that a Branch or an Eligible Foreign
Custodian is authorized to hold any of the
Foreign Securities placed in its care in an
Eligible Foreign Securities Depository
pursuant to the provisions of subsection
(a) of this Section 7, the Bank will
direct such Branch or Eligible Foreign
Custodian to identify on its books such
Foreign Securities as being held for the
account of the Bank as custodian for its
customers.
(d) INSTRUCTIONS TO BRANCHES AND ELIGIBLE
FOREIGN CUSTODIANS.
Any Property in the Custody Account held by
a Branch or Eligible Foreign Custodian will
be subject only to the instructions of the
Bank or its agents; and any Foreign
Securities held in an Eligible Foreign
Securities Depository for the account of a
Branch or an Eligible Foreign Custodian
will be subject only to the instructions of
such Branch or Eligible Foreign Custodian
as subcustodian for the Bank.
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8. AUTHORIZATIONS
The Bank is authorized to rely and act upon
written, signed instructions of those persons as
are named in a list provided to the Bank from time
to time and certified by the Company's Secretary
or Assistant Secretary. Such list shall
separately designate those persons who may
authorize the withdrawal of the Securities free of
payment. The Company will provide the Bank with
authenticated specimen signatures of the persons
so authorized.
The Bank is further authorized to rely upon any
instructions received by any other means and
identified as having been given or authorized by
any person named to the Bank as authorized to give
written instructions, regardless of whether such
instructions shall in fact have been authorized or
given by any of such persons, provided that the
Bank and the Company shall have agreed upon the
means of transmission and the method of
identification for such instructions.
Instructions received by any other means shall
include verbal instructions, provided that any
verbal instructions shall be promptly confirmed in
writing. In the event verbal instructions are not
subsequently confirmed in writing, as provided
above, the Company agrees to hold the Bank
harmless and without liability for any claims or
losses in connection with such verbal
instructions.
The Company may appoint one or more investment
managers ("Investment Managers") with respect to
the Custody Account. The Bank is authorized to
act upon instructions received from any Investment
Manager to the same extent that the Bank would act
upon the instructions of persons named in the
abovementioned certificate or separate list,
provided that the Bank has received copies of the
instruments appointing the Investment Manager and
written confirmation from the Investment Manager
evidencing his acceptance of such appointment. It
is expressly understood that any Investment
Manager appointed by the Company shall either be
registered as an investment adviser under the
Investment Advisers Act of 1940, be a bank as
defined in that Act, or be an insurance
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company qualified to perform investment management
services under the laws of more than one state.
If the Company should choose to have
telecommunication or other means of direct access
to the Bank's reporting system for Property in the
Custody Account, pursuant to paragraph (e) of
Section 5, the Bank is also authorized to rely and
act upon any instructions received by it through a
terminal device, provided that such instructions
are accompanied by code words which the Bank has
furnished to the Company, or its delegated
personnel, by any method mutually agreed to by the
Bank and the Company, and which the Bank shall not
have then been notified by the Company or any such
delegate to cease to recognize, regardless whether
such instructions shall in fact have been given or
authorized by the Company or any such person. The
Company's delegates shall be named by a
certificate provided to the Bank from time to time
by the Company's Secretary or an Assistant
Secretary.
9. FEES AND EXPENSES
Fees and expenses for the services rendered under
this Agreement shall be mutually agreed upon by
the parties in writing and the Bank shall have a
lien on the Property in the Custody Account to
secure payment of such fees and expenses. In
addition, if the Company requires the Bank to
advance cash or securities for any purpose or in
the event that the Bank or its nominee shall incur
or be assessed any taxes, charges, expenses,
assessments, claims or liabilities in connection
with the performance of its duties hereunder,
except such as may arise for its or its nominee's
negligent action, negligent failure to act, or
willful misconduct, any Property at any time held
for the Custody Account shall be security therefor
and should the Company fail to reimburse the Bank
promptly after request for payment, the Bank shall
be entitled to dispose of such Property to the
extent necessary to obtain reimbursement.
10. TAX STATUS
The Company's Tax Identification Number is:
23-261457
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11. TERMINATION
Either party may terminate this Agreement upon
sixty (60) days written notice to the other.
12. CONFIDENTIALITY
Subject to the foregoing provisions of this
Agreement and subject to any applicable law, the
Company and the Bank shall each use best efforts
to maintain the confidentiality of matters
concerning Property in the Custody Account.
13. NOTICES AND MISCELLANEOUS
All notices and other communications hereunder,
except for instructions and reports relating to
the Property which are transmitted through the
Bank's reporting system for Property in the
Custody Account, shall be in writing, telex or
telecopy or, if verbal, shall be promptly
confirmed in writing, and shall be hand-delivered,
telexed, telecopied or mailed by prepaid first
class mail (except that notice of termination, if
mailed, shall be by prepaid registered or
certified mail) to each party at its address set
forth above, if to the Company, marked "Attention"
▇▇▇▇▇▇▇ ▇▇▇▇▇ and if to the Bank, marked
"Citibank as Custodian for MARKET STREET FUND INC.
INTL. PORT", or at such other address as each
party may give notice of to the other. This
Agreement may not be amended except by writing
signed by the party against whom enforcement is
sought. This Agreement shall not be assignable by
either party without the written consent of the
other. This Agreement may be executed in several
counterparts, each of which shall be an original,
but all of which shall constitute one and the same
instrument. This Agreement contains the entire
agreement between the Company and the Bank
relating to custody of Property and supersedes all
prior agreements on this subject.
The captions of the various sections and
subsections of this Agreement have been inserted
only for the purposes of convenience, and shall
not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this
Agreement.
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This Agreement shall be governed by and construed
according to the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized.
▇▇▇▇▇▇▇▇, ▇,▇. THE MARKET STREET FUND
By: [sig] By: [sig]
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Title: VICE PRESIDENT Title: TREASURER
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Attest: [sig] Attest: [sig]
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Vice President
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