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EXHIBIT 5(a)
AMENDED ADVISORY AGREEMENT
AGREEMENT made as of February 9, 1987 between MUNICIPAL FUND
FOR NEW YORK INVESTORS, INC., a Maryland corporation (herein called the
"Fund"), and PROVIDENT INSTITUTIONAL MANAGEMENT CORPORATION, a Delaware
corporation (herein called the "Investment Adviser"), registered as an
investment adviser under the Investment Advisers Act of 1940 and wholly-owned
by Provident National Bank ("Provident").
WHEREAS, the Fund is registered as an open-end, management
investment company under the Investment Company Act of 1940;
WHEREAS, the Fund desires to retain the Investment Adviser to
render investment advisory and other services to the Fund, and the Investment
Adviser is willing to so render such services;
NOW, THEREFORE, this Agreement
WITNESSETH:
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 the Investment
Adviser to act as investment adviser to the Fund for the period and on the
terms set forth in this Agreement. The Investment Adviser accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. Delivery of Documents. The Fund has furnished the
Investment Adviser with copies properly certified or authenticated of each of
the following:
(a) Articles of Incorporation of the Fund (such
Articles of Incorporation, as presently in effect and as they shall from time
to time be amended or supplemented, herein called the "Articles of
Incorporation");
(b) Articles Supplementary as filed with the
Maryland State Department of Assessments and Taxation on July 13, 1983;
(c) Articles of Amendment as filed with the
Maryland State Department of Assessments and Taxation on July 18, 1983;
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(d) By-Laws of the Fund (such By-Laws, as
presently in effect and as they shall from time to time be amended, herein
called the "By-Laws");
(e) Resolutions of the Board of Directors of the
Fund authorizing the appointment of the Investment Adviser and the execution
and delivery of this Agreement;
(f) Registration Statement under the Securities
Act of 1933, as amended, and the Investment Company Act of 1940, as amended, on
Form N-1 (No. 2-82278) relating to the common stock of the Fund ("Shares"), and
all amendments thereto;
(g) Notification of Registration of the Fund
under the Investment Company Act of 1940, as amended, on Form N-8A as filed
with the Securities and Exchange Commission on March 8, 1983, and all
amendments thereto; and
(h) Prospectus of the Fund in effect under the
Securities Act of 1933 (such prospectus and supplements thereto, as presently
in effect and as from time to time amended and supplemented, herein called the
"Prospectus").
The Fund will furnish the Investment Adviser from time to time
with copies of all amendments of or supplements to the foregoing, if any.
3. Management. Subject to the supervision of the Board
of Directors of the Fund, the Investment Adviser will provide a continuous
investment program for the Fund, including investment research and management
with respect to all securities, investments, cash and cash equivalents in its
portfolio. The Investment Adviser will determine from time to time what
securities and other investments will be purchased, retained or sold by the
Fund. The Investment Adviser will provide the services rendered by it
hereunder in accordance with the Fund's investment objective and policies as
stated in the Prospectus. The Investment Adviser further agrees that it:
(a) will conform with all applicable Rules and
Regulations of the Securities and Exchange Commission (herein called the
"Rules"), and will in addition conduct its activities under this Agreement in
accordance with regulations of the Board of Governors of the Federal Reserve
System pertaining to the investment advisory activities of bank holding
companies to the same extent as if such regulations were by their terms
applicable to the activities of the Investment Adviser;
(b) will not invest its assets or the assets of
any accounts advised by it or by Provident in Shares, make loans for the
purpose of purchasing or carrying Shares, or make loans to the Fund;
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(c) will place orders pursuant to its investment
determinations for the Fund either directly with the issuer or with any broker
or dealer. In placing orders with brokers and dealers, the Investment Adviser
will attempt to obtain the best net price and the most favorable execution of
its orders. Consistent with this obligation, when the execution and price
offered by two or more brokers or dealers are comparable, the Investment
Adviser may, in its discretion, purchase and sell portfolio securities to and
from brokers and dealers who provide the Fund with research advice and other
services. In no instance will portfolio securities be purchased from or sold
to the Fund's principal underwriter, the Investment Adviser or any affiliated
person thereof, except to the extent permitted by the Securities and Exchange
Commission;
(d) will, together with Provident, maintain books
and records with respect to the Fund's securities transactions, keep its books
of account and will render to the Fund's Board of Directors such periodic and
special reports as the Board may request;
(e) will compute the net asset value and the net
income for the Fund on each business day as described in the Prospectus or as
more frequently requested by the Fund; and
(f) will treat confidentially and as proprietary
information of the Fund all records and other information relative to the Fund
and prior, present or potential shareholders, and will not 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 be unreasonably withheld and may not be
withheld where the Investment Adviser may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the Fund.
4. Services Not Exclusive. The investment management
services rendered Dy the Investment Adviser hereunder are not to be deemed
exclusive, and the Investment Adviser shall be free to render similar services
to others so long as its services under this Agreement are not impaired
thereby.
5. Sub-Advisory Agreement. Notwithstanding anything
herein to the contrary, this Agreement shall not be effective until the
Investment Adviser and Provident deliver to the Fund a duly executed copy of
the Sub-Advisory Agreement in substantially the form attached as Exhibit A
hereto (the "Sub-Advisory Agreement") pursuant to which Provident will provide
the Investment Adviser with certain investment advisory services on behalf of
the Fund. The Investment Adviser agrees to give the Fund prompt written notice
of any termination of or notice to
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terminate the Sub-Advisory Agreement by any person other than the Fund.
6. Books and Records. In compliance with the
requirements of Rule 31a-3 of the Rules, the Investment Adviser hereby agrees
that all records which it maintains for the Fund are the property of the Fund
and further agrees to surrender promptly to the Fund any of such records upon
the Fund's request. The Investment Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 the records required to be maintained by Rule
31a-1 of the Rules.
7. Expenses. During the term of this Agreement, the
Investment Adviser will pay all expenses incurred by it in connection with its
activities under this Agreement other than the cost of (including brokerage
commissions, if any) securities purchased for the Fund.
In addition, if the expenses borne by the Fund in any fiscal
year exceed the applicable expense limitations imposed by the securities
regulations of any state in which the Shares are registered or qualified for
sale to the public, the Investment Adviser shall reimburse the Fund for
one-half of any excess up to the amount of the fees payable to it during such
fiscal year pursuant to paragraph 8 hereof; provided, however, that
notwithstanding the foregoing, the Investment Adviser shall reimburse the Fund
for one-half of such excess expenses regardless of the amount of fees paid to
it during such fiscal year to the extent that the securities regulations of any
state in which the Shares are registered or qualified for sale so require.
8. Compensation. For the services provided and the
expenses assume pursuant to this Agreement, the Fund will pay the Investment
Adviser and the Investment Adviser will accept as full compensation therefor a
fee, computed daily and payable monthly, at an annual rate of .20% of the
Fund's average net assets.
9. Limitation of Liability of the Investment Adviser.
Neither Provident nor the Investment Adviser shall be liable for any error of
judgment or mistake of law or for any loss suffered by the Fund in connection
with the matters to which this Agreement relates, except a loss resulting from
a breach of fiduciary duty with respect to the receipt of compensation for
services or a loss resulting from willful misfeasance, bad faith or gross
negligence on the part of the Investment Adviser in the performance of its
duties or from reckless disregard by it of its obligations and duties under
this Agreement. Notwithstanding the foregoing, the Investment Adviser shall be
liable to the Fund for the acts and omissions of Provident to the extent that
Provident is liable to the Investment Adviser for such acts or omissions
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under the Sub-Advisory Agreement between the Investment Adviser and Provident.
10. Duration and Termination. This Agreement, unless
sooner terminated as provided herein, shall continue until July 31, 1987.
Thereafter, if not terminated, this Agreement shall continue for successive
periods of 12 months each, provided such continuance is specifically approved
at least annually (a) by the vote of a majority of these members of the Board
of Directors of the Fund who are not parties to this Agreement or interested
persons of any such party, cast in person at a meeting called for the purpose
of voting on such approval, and (b) by the Board of Directors of the Fund or by
vote of a majority of the outstanding voting securities of the Fund; provided,
however, that this Agreement may be terminated by the Fund at any time, without
the payment of any penalty, by the Board of Directors of the Fund or by vote of
a majority of the outstanding voting securities of the Fund on 60 days' written
notice to the Investment Adviser, or by the Investment Adviser at any time,
without payment of any penalty, on 90 days' written notice to the Fund. This
Agreement will immediately terminate in the event of its assignment and upon
any termination of the Sub-Advisory Agreement. (As used in this Agreement, the
terms "majority of the outstanding voting securities," "interested person" and
"assignment" shall have the same meanings as such terms have in the Investment
Company Act of 1940.)
11. Amendment of this Agreement. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought, and no amendment of this
Agreement shall be effective until approved by vote of a majority of the Fund's
outstanding voting securities.
12. Miscellaneous. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding upon and shall inure to
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the benefit of the parties hereto and their respective successors and shall be
governed by Delaware law.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
MUNICIPAL FUND FOR NEW YORK
INVESTORS, INC.
[Seal] (a Maryland corporation)
Attest: By:/s/ Xxxxxx X. Xxxxx
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Vice President & Treasurer
PROVIDENT INSTITUTIONAL
[Corporate Seal] MANAGEMENT CORPORATION
Attest:/s/ Xxxx X. Xxxxxx, Xx. By:/s/ Xxxxxx X. Xxxxx
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Vice President & Secretary
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