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CUSTODIAN AGREEMENT
THIS AGREEMENT is made as of June 1, 1989 by and between
TEMPORARY INVESTMENT FUND, INC., a Maryland corporation (the "Company"), and
PROVIDENT NATIONAL BANK, a national banking association ("Provident").
W I T N E S S E T H
WHEREAS, the Company is registered as an open-end, diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Company currently offers shares of series
representing interests in two separate investment portfolios, known as TempFund
and TempCash (each a "Fund"), and classes of shares in each such Fund; and
WHEREAS, Provident has served as the Company's Custodian
pursuant to an Amended and Restated Custodian and Services Agreement dated as of
November 19, 1979, as amended on January 16, 1981, November 30, 1981, March 22,
1982, July 2, 1982, January 12, 1984, April 11, 1984, November 1, 1984, and May
9, 1986; and
WHEREAS, the Company desires to continue to retain Provident
to serve as the Company's custodian and Provident is willing to serve as the
Company's custodian;
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NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Company hereby appoints Provident to act
as custodian of the portfolio securities, cash and other property belonging to
the Company 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 21 of this
Agreement. Provident agrees to comply with all relevant provisions of the 1940
Act and applicable rules and regulations thereunder. The Company has, and may
from time to time continue to issue additional Funds and classes of such Funds,
or classify and reclassify shares of such current or future Funds or classes.
Provident shall identify to each such Fund or class property belonging to such
Fund or class in such reports, confirmations and notices to the Company called
for under this Agreement. In the event that the Company establishes additional
Funds or classes, the Company shall notify Provident in writing. if Provident is
willing to render such services, it shall notify the Company in writing,
whereupon such Funds or classes shall become a Fund or class hereunder, and the
compensation payable by such new Fund or class to Provident will be agreed in
writing at the time, pursuant to Paragraph 21 hereof.
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2. Delivery of Documents. The Company has furnished Provident
with copies properly certified or authenticated of each of the following:
(a) Resolutions of the Company's Board of Directors
authorizing the appointment of Provident as custodian of the portfolio
securities, cash and other property belonging to the Company and approving this
Agreement;
(b) Appendix A identifying and containing the
signatures of the Company's President and Treasurer and/or other persons
authorized to issue Oral Instructions and to sign Written Instructions, as
hereinafter defined, on behalf of the Company;
(c) The Company's Articles of Incorporation filed
with the Department of Assessments and Taxation of the State of Maryland on
February 8, 1973 and all Articles of Amendment and Articles Supplementary
thereto (such Articles of Incorporation, as presently in effect and as they
shall from time to time be amended, are herein called the "Charter");
(d) The Company's By-Laws dated February 9, 1973 and
all amendments thereto (such By-Laws, as presently in effect and as they shall
from time to time be amended, are herein called the "By-Laws");
(e) The Investment Advisory Agreement between
Provident Institutional Management Corporation (the "Advisor") and the Company
dated as of March 11, 1987 (such Advisory Agreement as presently in effect and
with any future addenda is herein called the "Advisory Agreement"),
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(f) The Sub-Advisory Agreement between Provident
National Bank and the Advisor dated as of March 11, 1987 (such Sub-Advisory
Agreement as presently in effect and with any future addenda, is herein called
the "Sub-Advisory Agreement");
(g) Each Distribution Agreement between the Company
and Shearson Xxxxxx Xxxxxx Inc. ("Shearson") dated April 14, 1983 and February
21, 1984 (collectively, the "Distribution Agreement");
(h) The Transfer Agency Agreement between Provident
Financial Processing Corporation (the "Transfer Agent") and the Company dated as
of June 1, 1989 (the "Transfer Agency Agreement);
(i) The Administration Agreement between The Boston
Company Advisors, Inc. and the Company dated March 11, 1987 (such Administration
Agreement as presently in effect and with any future addenda is herein called
the "Administration Agreement");
(j) The Company's most recent Post-Effective
Amendment to its Registration Statements on Form N-IA under the Securities Act
of 1933, as amended ("xxx 0000 Xxx") (Registration No. 2-47015) and
(Registration No. 2-87227) and under the 1940 Act as filed with the SEC on
December 2, 1988 relating to shares of the Company's Common Stock, $.001 par
value ("Shares"), and all amendments thereto as well as such prior Registration
Statements or Amendments as Provident may request; and
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(k) The Company's most recent prospectuses
(prospectus herein is deemed to include the Statement of Additional Information)
relating to Shares (such prospectuses as presently in effect and all amendments
and supplements thereto are herein called the "Prospectus").
The Company will furnish Provident from time to time with
copies, properly certified or authenticated, of all amendments of or supplements
to the foregoing, if any.
3. Definitions.
(a) "Authorized Person." As used in this Agreement,
the term "Authorized Person" means the President and Treasurer of the Company
and any other person, whether or not any such person is an officer or employee
of the Company, duly authorized by the Board of Directors of the Company to give
Oral and Written Instructions on behalf of the Company and listed on the
Certificate annexed hereto as Appendix A or any amendment thereto 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 with the SEC under Section 17A of the Securities
Exchange Act of 1934 (the "1934 Act").
(c) "Oral Instructions." As used in this Agreement,
the term "Oral Instructions" means oral instructions
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actually received by Provident from an Authorized Person or from a person
reasonably believed by Provident to be an Authorized Person. The Company 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 Company may from time to time deposit, or cause to
be deposited, with Provident or which Provident may from time to time
hold for the Company including securities and Property deposited on
behalf of the Company with the Book-Entry System;
(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
(iv) all proceeds of the sale of securities
issued by the Company, which are received by Provident from time to
time from or on behalf of the Company.
(e) "Written Instructions." As used in this
Agreement, the term "Written Instructions" means written instructions delivered
by hand, mail, tested telegram, cable, telex or facsimile sending device, and
received by Provident and signed by an Authorized Person.
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4. Delivery and Registration of the Property. The Company will
deliver or cause to be delivered to Provident all securities and all moneys
owned by it, including cash received for the issuance of its Shares, at any time
during the period of this Agreement. Provident will not be responsible for such
securities and such moneys until actually received by it. All securities
delivered to Provident (other than in bearer form) shall be registered in the
name of the Company or in the name of a nominee of the Company or in the name of
Provident or in the name of any nominee of Provident (with or without indication
of fiduciary status), or in the name of any sub-custodian or any nominee of any
such sub-custodian 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 in the name of the Company, 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 the Company. Provident shall make
payments of cash to, or for the account of, the Company from such cash only (i)
for the purchase of securities for the Company's portfolio as provided in
Paragraph 13 hereof; (ii) upon receipt of Written Instructions, for the payment
of interest, dividends, taxes, administration, accounting, distribution,
advisory or management
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fees or expenses which are to be borne by the Company under the terms of this
Agreement, the Advisory Agreement, the Administration Agreement, the Transfer
Agency Agreement and the Distribution Agreement, as well as fees borne by the
Company under its agreements with institutional investors with respect to the
provision of support services to their customers who beneficially own from time
to time Shares of a Fund which has entered into such agreements; (iii) upon
receipt of Written Instructions, for payments in connection with the conversion,
exchange or surrender of securities owned or subscribed to by the Company and
held by or to be delivered to Provident; (iv) to a sub-custodian pursuant to
Paragraph 6 hereof; (v) for the redemption of Company Shares; (vi) for payment
of the amount of dividends received in respect of securities sold short; (vii)
for payment against receipt of securities loaned pursuant to a specified
agreement for loaning the Company's securities; or (viii) upon receipt of
Written Instructions, for other proper Company purposes. No payment pursuant to
(i) above shall be made unless Provident has received a copy of the broker's or
dealer's confirmation or the payee's invoice, as appropriate.
(b) Provident is hereby authorized to endorse and
collect all checks, drafts and other negotiable instruments or other orders for
the payment of money received as custodian for the account of the Company.
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6. Receipt of Securities.
(a) Except as provided by Paragraph 7 hereof,
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 the Company. All such securities and non-cash property are to be held
or disposed of by Provident for the Company pursuant to the terms of this
Agreement. In the absence of Written Instructions accompanied by a certified
resolution of the Company's Board of Directors authorizing the 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 director, officer, employee or agent of the Company withdraw any
securities. In connection with its duties under this Paragraph 6, Provident may,
at its own expense, enter into sub-custodian agreements with other banks or
trust companies for the receipt of certain securities and cash to be held by
Provident for the account of the Company 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 one
million dollars ($1,000,000) for a Provident subsidiary or affiliate, or of not
less than twenty million dollars ($20,000,000) if such bank or trust company is
not a Provident subsidiary or affiliate and that
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in either case 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 Company harmless from the acts
and omissions, under the standards of care provided for herein, of any bank or
trust company that it might choose pursuant to this Paragraph 6.
(b) Where securities are transferred to an account of
the Company established pursuant to Paragraph 7 hereof, Provident shall also by
book-entry or otherwise identify as belonging to the Company the quantity of
securities in a fungible bulk of securities registered in the name of Provident
(or its nominee) or shown in Provident's account on the books of the Book-Entry
System. At least monthly and from time to time, Provident shall furnish the
Company with a detailed statement of the Property held for the Company under
this Agreement.
7. Use of Book-Entry System. The Company shall deliver to
Provident certified resolutions of the Board of Directors of the Company
approving, authorizing and instructing Provident on a continuous and ongoing
basis until instructed to the contrary by Oral or Written Instructions actually
received by Provident (a) to deposit in a Book-Entry System all securities
belonging to the Company eligible for deposit therein and (b) to utilize the
Book-Entry System to the extent possible in connection with settlements of
purchases and sales of securities
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by the Company, and deliveries and returns of securities loaned, subject to
repurchase or reverse repurchase agreements or used as 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 the Company 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 and its
sub-custodian, if any, 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 Company's participation in the Book-Entry System will at all
times during Provident's regular business hours be open to the inspection of the
Company's duly authorized employees or agents, and the Company will be furnished
with all information in respect of the services rendered to it as it may
require.
(c) Provident will provide the Company with copies of
any report obtained by Provident on the system of internal accounting control of
the Book-Entry System promptly after receipt of such a report by Provident.
Provident will also provide the Company with such reports on its own system of
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internal control as the Company 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 know of the provisions of the Charter and By-Laws of the Company, Provident
may assume that any Oral or Written Instructions received hereunder are not in
any way inconsistent with any provisions of such Charter or By-Laws 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 Company agrees to forward to Provident Written
Instructions confirming Oral Instructions in such manner that the Written
Instructions are received by Provident by the close of business of the same day
that such Oral Instructions are given to Provident. The Company 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 Company by giving Oral Instructions. The Company
agrees that Provident shall incur no liability to the Company in acting upon
Oral Instructions given to Provident hereunder concerning such transactions
provided Provident
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reasonably believes such instructions have been received from an Authorized
Person.
9. Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, Provident is authorized to take the following
actions:
(a) Collection of Income and Other Payments.
Provident shall:
(i) collect and receive for the account of
the Company, all income and other payments and distributions, including
(without limitation) stock dividends, rights, bond coupons, option
premiums and similar items, included or to be included in the Property,
and promptly advise the Company of such receipt and shall credit such
income, as collected, to the Company's custodian account;
(ii) endorse and deposit for collection, in
the name of the Company, checks, drafts, and other negotiable
instruments or other orders for the payment of money on the same day as
received;
(iii) receive and hold for the account of
the Company all securities received as a distribution on the Company's
portfolio securities 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
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respect to any portfolio securities belonging to the Company held by
Provident hereunder;
(iv) present for payment and collect the
amount payable upon 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
and other payments and the endorsement for collection of checks,
drafts, and other negotiable instruments as described in Paragraph 24
of this Agreement.
(b) 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 the Company 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 Company or Provident or nominee of either, or for exchange
of securities for a different number of bonds, certificates, or other
evidence, representing the same
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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, directly or through the
use of the Book-Entry System, shall:
(a) execute and deliver to such persons as may be
designated in such Oral or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of the
Company as owner of any securities may be exercised;
(b) deliver any securities held for the Company
against receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing, tender
offer, merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege;
(c) deliver any securities held for the Company to
any protective committee, reorganization committee or other person in
connection with the 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;
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(d) make such transfers or exchanges of the assets of
the Company 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
or recapitalization of the Company;
(e) release securities belonging to the Company to
any bank or trust company for the purpose of pledge or hypothecation to
secure any loan incurred by the Company; 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
repay such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes
evidencing the loan;
(f) release and deliver securities owned by the
Company in connection with any reverse repurchase agreement entered
into on behalf of the Company, but only on receipt of payment therefor;
and pay out moneys of the Company in connection with such reverse
repurchase agreements, but only upon the delivery of the securities;
(g) pay out moneys of the Company in connection with
any repurchase agreement entered into on behalf of the Company, but
only upon the delivery of the subject
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securities; and release and deliver such securities in connection with
such repurchase agreements, but only on receipt of payment therefor;
and
(h) otherwise transfer, exchange or deliver
securities in accordance with Oral or Written Instructions.
11. Segregated Accounts. Provident shall upon receipt of
Written or Oral Instructions establish and maintain a segregated account or
accounts on its records for and on behalf of the Company, into which account or
accounts may be transferred cash and/or securities, including securities in the
Book-Entry System (i) for the purposes of compliance by the Company with the
procedures required by a securities or option exchange, providing such
procedures comply with the 1940 Act and Release No. 10666 or any subsequent
release or releases of the SEC relating to the maintenance of segregated
accounts by registered investment companies, and (ii) for other proper corporate
purposes, but only, in the case of clause (ii), upon receipt of Written
Instructions.
12. Dividends and Distributions. The Company shall furnish
Provident with appropriate evidence of action by the Company's Board of
Directors declaring and authorizing the payment of any dividends and
distributions. Upon receipt by Provident of Written Instructions with respect to
dividends and distributions declared by the Company's Board of Directors and
payable to Shareholders who have elected in the proper manner to receive their
distributions or dividends in cash, and in
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conformance with procedures mutually agreed upon by Provident, the Company, and
the Company's Transfer Agent, Provident shall pay to the Company's Transfer
Agent, as agent for the Shareholders, an amount equal to the amount indicated in
said Written Instructions as payable by the Company to such Shareholders for
distribution in cash by the Transfer Agent to such Shareholders. In lieu of
paying the Company'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 Company, Provident and
the Company's Transfer Agent.
13. Purchases of Securities. Promptly after each decision to
purchase securities by the Advisor, the Company, through the Advisor, 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 and (f) the name of the person from
whom or the broker through whom the purchase was made. Provident shall upon
receipt of securities purchased by or for the Company pay out of the moneys held
for the account of the Company 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.
14. Sales of Securities. Promptly after each decision to sell
securities by the Advisor or exercise of an option written by the Company, the
Company, through the Advisor, 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 Company upon such sale, and (f) the name of the
broker through whom or the person to whom the sale was made. Provident shall
deliver the securities upon receipt of the total amount payable to the Company
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.
15. Records. The books and records pertaining to the Company
which are in the possession of Provident shall be the property of the Company.
Such books and records shall be prepared and maintained as required by the 1940
Act and other applicable securities laws and regulations. The Company, or the
Company's authorized representatives, shall have access to such books and
records at all times during Provident's normal business
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hours. Upon the reasonable request of the Company, copies of any such books and
records shall be provided by Provident to the Company or the Company's
authorized representative at the Company's expense.
16. Reports.
(a) Provident shall furnish the Company the following
reports:
(1) such periodic and special reports as the
Company may reasonably request;
(2) a monthly statement summarizing all
transactions and entries for the account of the Company,
listing the portfolio securities belonging to the Company with
the adjusted average cost of each issue and the market value
at the end of such month, and stating the cash account of the
Company including disbursements;
(3) the reports to be furnished to the
Company pursuant to Rule 17f-4; and
(4) such other information as may be agreed
upon from time to time between the Company and Provident.
(b) Provident shall transmit promptly to the Company
any proxy statement, proxy materials, notice of a call or conversion or similar
communications received by it as Custodian of the Property.
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17. Cooperation with Accountants. Provident shall cooperate
with the Company's independent 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 opinion, as such may be required from time to time by the
Company.
18. Confidentiality. Provident agrees on behalf of itself and
its employees to treat confidentially all records and other information relative
to the Company and its prior, present, or potential Shareholders, except, after
prior notification to and approval in writing by the Company, which approval
shall not be unreasonably 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 such information by duly constituted authorities, or when
so requested by the Company.
19. 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 Company 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
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cost from counsel of its own choosing (who may be counsel for the Advisor, the
Company or Provident, at the option of Provident).
(c) Conflicting Advice. In case of conflict between
directions, advice or 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, advice or Oral or Written Instructions received pursuant to
subparagraphs (a) or (b) of this paragraph which Provident, after receipt of any
such directions, advice or Oral or Written Instructions, in good faith believes
to be consistent with such directions, advice or Oral or Written Instructions,
as the case may be. However, nothing in this paragraph shall be construed as
imposing upon Provident any obligation (i) to seek such directions, advice or
Oral or Written Instructions, or (ii) to act in accordance with such directions,
advice or Oral or Written Instructions 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
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misfeasance, bad faith, gross negligence or reckless disregard by Provident of
any duties or obligations under this Agreement.
20. Compliance with Governmental Rules and Regulations. The
Company assumes full responsibility for ensuring that the Company complies with
all applicable requirements of the 1933 Act, the 1934 Act, the 1940 Act, and any
laws, rules and regulations of governmental authorities having jurisdiction
except insofar as Provident has assumed a specific responsibility for compliance
hereunder.
21. Compensation. As compensation for the services rendered by
Provident during the term of this Agreement, the Company will pay to Provident
monthly fees that shall be agreed upon from time to time in writing by Provident
and the Company.
22. Indemnification. The Company, 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 1934 Act, 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 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
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reliance on the advice of the Company or (ii) upon Oral or Written Instructions,
provided, that neither Provident nor any of its nominees shall be indemnified
against any liability to the Company or to its Shareholders (or any expenses
incident to such liability) arising out of Provident's or such nominee's own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
or responsibilities specifically described in this Agreement. In the event of
any advance of cash for any purpose made by Provident resulting from oral or
Written Instructions of the Company, or in the event that Provident or its
nominee shall incur or be assessed any taxes, charges, expenses, assessments,
claims or liabilities in connection with the performance of this Agreement,
except such as may arise from its or its nominee's own negligent action,
negligent failure to act or willful misconduct, any Property at any time held
for the account of the Company shall be security therefor.
23. Responsibility of Provident. Provident shall be under no
duty to take any action on behalf of the Company 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 insure the accuracy and completeness of all services
performed under this Agreement. Provident shall be responsible for its own
negligent failure to perform its duties under this Agreement, but to the extent
that duties,
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obligations and responsibilities are not specifically set forth in 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 or reckless disregard of such duties, obligations and
responsibilities. 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 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 beyond
Provident's control, including acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdown, 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
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ascertain whether any Property at any time delivered to or held by Provident may
properly be held by or for the Company.
24. 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
Company. In any case in which Provident does not receive any payment due the
Company within a reasonable time after Provident has made proper demands for the
same, it shall so notify the Company 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 Company.
Provident shall not be obliged to take legal action for collection unless and
until reasonably indemnified to its satisfaction. Provident shall also notify
the Company as soon as reasonably practicable whenever income due on securities
is not collected in due course.
25. Duration and Termination. This Agreement shall continue
until termination by the Company or by Provident in either case on sixty (60)
days written notice. Upon any termination of this Agreement, pending appointment
of a successor to Provident or vote of the Shareholders of the Company 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
Company to the Company, but may deliver them to a bank or trust company of its
own selection, having an aggregate capital, surplus and undivided profits, as
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shown by its last published report, of not less than twenty million dollars
($20,000,000) as a custodian for the Company to be held under terms similar to
those of this Agreement.
26. 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, Airport Business Center, International Court
2, 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000 marked for the attention of the
Custodian Services Department (or its successor); (b) if to the Company, at the
address of the Company; 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 received five days after it is sent, or if sent by confirming telegram,
cable, telex or facsimile sending device, it shall be deemed to have been
received 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 received three days after it is sent, or if sent by
messenger, it shall be deemed to have been received on
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the day it is delivered. All postage, cable, telegram, telex and facsimile
sending device charges arising from the sending of a Notice hereunder shall be
paid by the sender.
27. Further Actions. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
28. Amendments. This Agreement or any part hereof may be
changed only by an instrument in writing signed by the party against which
enforcement of such change is sought.
29. Delegation. On thirty (30) days prior written notice to
the Company, Provident may assign its rights and delegate its duties hereunder
to any wholly-owned direct or indirect subsidiary of Provident National Bank or
PNC Financial Corp, provided that (i) the delegate agrees with Provident to
comply with all relevant provisions of the 1940 Act; and (ii) Provident and such
delegate shall promptly provide such information as the Company may request, and
respond to such questions as the Company may ask, relative to the delegation,
including (without limitation) the capabilities of the delegate. Such delegate
shall be bound by the terms of this Agreement as though an original party
hereto. Provident shall unconditionally guarantee the performance of the
delegate under the terms and conditions of this Agreement.
30. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an
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original, but all of which together shall constitute one and the same
instrument.
31. 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 Instructions and
compensation. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on the day and year
first above written.
[SEAL] TEMPORARY INVESTMENT FUND, INC.
Attest: /s/ Xxxxxx X. Xxxxxx, III By /s/ Xxxxxx X. Xxxxx
---------------------------- ----------------------------
[SEAL] PROVIDENT NATIONAL BANK
Attest: /s/ X. Xxxxx By /s/ X.X. Xxxxxxx
---------------------------- ----------------------------
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INDEX
Paragraph Page
--------- ----
1. Appointment.......................................................... 2
2. Delivery of Documents................................................ 3
3. Definitions.......................................................... 5
4. Delivery and Registration of the Property............................ 7
5. Receipt and Disbursement of Money.................................... 7
6. Receipt of Securities................................................ 9
7. Use of Book-Entry System............................................. 10
8. Instructions Consistent with Charter, etc............................ 12
9. Transactions Not Requiring Instructions.............................. 13
10. Transactions Requiring Instructions.................................. 15
11. Segregated Accounts.................................................. 17
12. Dividends and Distributions.......................................... 17
13. Purchases of Securities.............................................. 18
14. Sales of Securities.................................................. 19
15. Records.............................................................. 19
16. Reports.............................................................. 20
17. Cooperation with Accountants......................................... 21
18. Confidentiality...................................................... 21
19. Right to Receive Advice.............................................. 21
20. Compliance with Governmental Rules and Regulations................... 23
21. Compensation......................................................... 23
22. Indemnification...................................................... 23
23. Responsibility of Provident.......................................... 24
24. Collections.......................................................... 26
25. Duration and Termination............................................. 26
26. Notices.............................................................. 27
27. Further Actions...................................................... 28
28. Amendments........................................................... 28
29. Delegation........................................................... 28
30. Counterparts......................................................... 28
31. Miscellaneous........................................................ 29
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