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EXHIBIT 8.(g)(2)(i)
RESTATED
CUSTODIAN AGREEMENT
This Agreement, dated this 1st day of March, 1991, between ASSET
MANAGEMENT FUND FOR FINANCIAL INSTITUTIONS, INC. (the "Fund"), a Maryland
corporation formerly known as Asset Management Fund for Savings Institutions,
Inc. and originally known as the Liquidity Fund for Thrifts, Inc., and
PROVIDENT NATIONAL BANK ("Provident"), a national banking association;
WITNESSETH:
WHEREAS, Provident and the Fund wish to restate, without any
substantive change, the Custodian Agreement between them dated November 1, 1982
as amended by a letter agreement relating to the Mortgage Securities
Performance Portfolio dated January 18, 1984 and further amended by a letter
agreement dated August, 1986 relating to the Corporate Bond Portfolio and
further amended by an Amendment relating to the "Book Entry System" dated
August 28, 1986 and further amended by an amendment dated October 31, 1990
amending Paragraphs 5(b) and 9(a) (the "Custodian Agreement'); and
WHEREAS, the Fund is registered as an open-end, diversified,
management investment company under the Investment Company Act of 1940, as
amended ("xxx 0000 Xxx"); and
WHEREAS, the Fund is a series fund with four separate portfolios,
these being the Short-Term Liquidity Portfolio, the Intermediate-Term Liquidity
Portfolio, the Mortgage Securities Performance Portfolio, and the Corporate
Bond Portfolio; and Provident has served
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as custodian for each Portfolio since the inception of each, and the Fund and
Provident intend that it continue to do so;
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 belonging to the
classes of the Fund's Common Stock, $.001 par value ("Fund Shares"), known as
the Short-Term Liquidity Portfolio Shares, the Intermediate-Term Liquidity
Portfolio Shares, the Mortgage Securities Performance Portfolio Shares and the
Corporate Bond Portfolio Shares, 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 18 of this Agreement. Provident agrees to comply with all relevant
provisions of the 1940 Act and applicable rules and regulations thereunder.
The Fund, at its option, may also appoint Provident to act as custodian of the
portfolio securities, cash and other property belonging to any other class of
Fund Shares from time to time created, but Provident shall not be required to
accept any such appointment. The Fund's four presently authorized classes of
Shares, together with any other class or classes of Fund Shares as to which
Provident is offered and accepts an appointment hereunder as custodian are
hereinafter referred to collectively as "Classes" and individually as a
"Class".
2. Delivery of Documents. The Fund has furnished 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 belonging to each Class of the Fund 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
Department of Assessments and Taxation of the State of Maryland on July 30,
1982 and all amendments 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 Fund's By-Laws and all amendments thereto (such
By-Laws, as presently in effect and as they shall from time to time be amended,
are herein called "By-Laws");
(e) The Fund's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act on Form N-8A under the 1940 Act as
filed with the Securities and Exchange Commission ("SEC") on August 12, 1982;
(f) The Fund's Registration Statement on Form N-1 under
the Securities Act of 1933, as amended ("xxx 0000 Xxx") (File No. 2-78808) and
under the 1940 Act as filed with the SEC on August 12, 1982, including all
exhibits thereto, relating to Fund Shares and all amendments thereto; and
(g) The Fund's most recent prospectus (such prospectus,
as presently in effect and all amendments and supplements thereto are herein
called the "Prospectus").
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The Fund 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, Treasurer and any Vice President
of the Fund 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 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 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 verbal 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:
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(i) any and all securities and other property
which the Fund may from time to time deposit, or cause to be
deposited, with Provident or which Provident may from time to time
hold for the Fund;
(ii) all income in respect of any 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 Fund, 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 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
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 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 any nominee of Provident which nominee shall be assigned
exclusively to the Fund (with or without indication of fiduciary status) 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.
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5. Receipt and Disbursement of Money.
(a) Provident shall open and maintain a separate
custodial account or accounts for each of the Classes 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 Classes of the Fund. Provident shall make payments of cash to, or for the
account of, the Fund from such cash only (i) for the purchase of securities for
the Fund's portfolio for each of the Classes as provided in Paragraph 11
hereof; (ii) for the redemption of Fund Shares of each Class; (iii) upon
receipt of Written Instructions, for the payment of interest, dividends, taxes,
administration, custodial, transfer agency, distribution or advisory fees or
expenses which are to be borne by the Fund or by any Class of the Fund under
the terms of this Agreement, the Transfer Agency Agreement between Provident
Financial Processing Corporation and the Fund, the Plan and Agreement pursuant
to Rule 12b-1 between the Sponsor and the Fund, the Investment Advisory
Agreement between the Advisor and the Fund, and the Administration Agreement
between the Administrator and the Fund; (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 for each of the
Classes and held by or to be delivered to Provident; (v) to a subcustodian
pursuant to Paragraph 6 below; or (vi) upon receipt of Written Instructions,
for other proper corporate 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.
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(b) Provident is hereby authorized to, on a timely basis,
endorse and collect all checks, drafts or other orders for the payment of money
received as custodian for the account of each Class of the Fund.
6. Receipt of Securities.
(a) Except as provided by Paragraph 7 (use of Book-Entry
System) 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 each Class of the Fund. All such securities and non-cash property
are to be held or disposed of by Provident for each Class of the Fund 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 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 Fund withdraw any 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 any
Class of the Fund 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 twenty million dollars
($20,000,000) 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; except in the case of a bank or trust company that is a
direct or indirect subsidiary
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or affiliate of PNC Financial Corp, in which case its aggregate capital,
surplus and undivided profits shall be not less than one million dollars
($1,000,000). Provident shall remain responsible for the performance of all
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.
(b) Promptly after the close of business each day,
Provident shall furnish the Fund with confirmations and a summary of all
transfers to or from the account of each Class of the Fund during said day.
Where securities are transferred to an account of any Class of the Fund
established pursuant to Paragraph 7 (use of Book-Entry System) hereof,
Provident shall also by book entry or otherwise identify as belonging to such
Class of the Fund 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 Fund with a detailed statement of the
Property held for each Class of the Fund under this Agreement.
(c) Provident shall (i) upon receipt of Written
Instructions or (ii) upon receipt of notice from the Fund's investment adviser
that a Class of the Fund has entered into a reverse repurchase agreement,
establish and maintain a segregated account or accounts on its records for and
on behalf of each Class of the Fund, into which account or accounts may be
transferred cash and/or securities, including securities maintained in an
account by Provident pursuant to Paragraph 7 hereof, (A) for the purposes of
compliance by the Fund with the procedures required by Investment Company Act
Release No. 10666, or any subsequent release or releases
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of the Securities and Exchange Commission relating to the maintenance of
segregated accounts by registered investment companies and (B) for other proper
corporate purposes.
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 Class
of the Fund eligible for 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 Class 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 Class 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 each Class of 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.
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(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 Charter and By-Laws of
the Fund, 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 stockholders, 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 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
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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. In the absence of
contrary Written Instructions, Provident is authorized to take the following
action:
(a) Collection of Income and Other Payments. Provident
shall perform the following on a timely basis:
(i) collect and receive for the account of each
Class of the Fund, all income and other payments and distributions,
including (without limitation) interest, stock dividends, rights,
warrants and similar items, included or to be included in the Property
of such Class, and advise the Fund of such receipt and shall credit
such income, as collected, to the Fund's custodian account for such
Class;
(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
Class of the Fund all securities received as a distribution on such
Class of the Fund'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 respect to any portfolio securities of
such Class of the Fund held by Provident hereunder;
(iv) present for payment and collect the amount
payable upon all securities which may mature or be called, redeemed,
prepaid or retired, or otherwise become payable on the date such
securities become payable;
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(v) collect and receive for the account of each
Class of the Fund, all principal pay downs on mortgage backed
securities included or to be included in the Property of such Class
and advise the Fund of such receipt and shall credit such principal as
is due to the Fund's custodian account for such Class; and
(vi) 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 and advise the Fund of any
delay or failure in connection with the collection, receipt or
crediting to the appropriate Fund account of such income and other
payments.
(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 each Class of the Fund in accordance with street delivery
custom;
(ii) for the exchange of interim receipt or
temporary securities for definitive securities; and
(iii) for transfer of securities into the name of
the Fund or Provident or 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.
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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 Fund as
owner of any securities may be exercised;
(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 or recapitalization 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 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 receipt 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 or recapitalization 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
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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.
11. Purchase of Securities. Promptly after each purchase of
securities by the Fund, the Fund 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 of 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 Class of the Fund for which the purchase was
made. Provident shall upon receipt of securities purchased by or for a Class
of the Fund pay out the monies held for the account of such Class of the Fund
the total amount payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the total amount payable
as set forth in such Oral Instructions.
12. Sales of Securities. Promptly after each sale of securities
by the Fund, the Fund 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 Class of the
Fund 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
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satisfactory to it, and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
13. Records. Provident shall keep the following records:
(a) all original books and records with respect to the
Fund's financial books of account for each Class; and
(b) records of the Fund's securities transactions for
each Class.
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 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.
14. Reports. Provident shall furnish the Fund 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 Class of the Fund;
(c) a monthly report of portfolio securities belonging to
each Class showing the adjusted average cost of each issue and the market value
at the end of such month;
(d) a monthly report of the case account of each Class of
the Fund showing disbursements; and
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(e) such other information as may be agreed upon from
time to time between the Fund and Provident.
15. Cooperation with Accountants. Provident shall cooperate with
the Fund's independent public accounts 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, including but not limited to the opinion included
in the Fund's annual report on Form N-SAR or any replacement therefor.
16. Right to Receive Advice.
(a) Advice of Fund. 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 any
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 Investment Advisor, the Fund 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
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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 misfeasance, bad faith,
gross negligence or reckless disregard by Provident of its duties under this
Agreement.
17. 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.
18. Compensation. As compensation for the services rendered by
Provident during the term of this Agreement, except for the Mortgage Securities
Performance Portfolio, the Fund will pay to Provident monthly fees equal to
.025% per year of the first $100 million of each Class of the Fund's average
gross assets for such year (based on the average of the assets included in such
Class's net asset value on each day in such month that such value is
calculated), plus .020% per year of the next $400 million of such Class's
average gross assets for such year, plus .015% per year of the net $500 million
of such Class's average gross assets for such year, plus .012% of the next $1
billion of such Class's average gross assets for such year, plus .010% of the
next $2 billion of such Class's average gross assets for such year. For the
Mortgage
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Securities Performance Portfolio, the fee at each asset level shall be twice
the rate set forth above.
19. 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
the 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 reliance on the advice of the Fund or (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 stockholders
(or any expenses incident to such liability) arising out of (A) Provident's or
such nominee's own willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties under this Agreement or (B) Provident's or such
nominee's own negligent failure to perform its duties under this Agreement. In
the event of any advance of cash for any purpose made by Provident resulting
from orders or Oral or Written Instructions of the Fund, 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 Fund shall be security therefor.
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20. 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 insure that accuracy of all services performed under this
Agreement, but 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 by Provident of its duties under this
Agreement, provided that 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
reasonable believes to be genuine; (b) the validity or invalidity of the
issuance of any securities included or to be included in the Property belonging
to either Class, the legality or illegality of the purchase off 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 belonging
to either Class 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,
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communication or power supply, nor shall Provident be under any duty or
obligation to ascertain whether any Property belonging to either Class at any
time delivered to or held by Provident may properly be held by or for the Fund.
Certain of Provident's obligations hereunder may be delegated to or
performed by subsidiaries or affiliates of Provident, provided, however that
any such delegation shall not relieve Provident of its responsibilities
hereunder.
21. 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.
22. Duration and Termination. This Agreement shall continue with
respect to each Class of the Fund until termination by the Fund or Provident on
60 days' written notice. Upon any termination of this Agreement with respect
to a Class of the Fund, pending appointment of a successor to Provident or vote
of the stockholders of such Class to dissolve or to function without a
custodian of its cash, securities or other property, Provident shall not
deliver cash, securities or other property belonging to such Class to the Fund,
but may deliver them to a bank
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or trust company of its own selection, having an 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 such Class of the Fund
to be held under terms similar to those of this Agreement, provided, however,
that Provident shall not be required to make any such delivery or payment until
further payment shall have been made by such Class of the Fund of all
liabilities constituting a charge on or against the properties belonging to
such Class of the Fund then held by Provident or on or against Provident and
until full payment shall have been made to Provident of all of its fees,
compensation, costs and expenses, subject to the provisions of Paragraph 18 of
this Agreement.
23. 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, 00xx xxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, marked for the attention of the Custodian Services
Department (or its successor); (b) it 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
facsimile 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 addresses
thereof are, at the time of sending, not more than 100 miles apart, the Notice
may be
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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.
24. Further Actions. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
25. 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.
26. Assignment. This Agreement and the performance hereunder may
not be assigned by Provident without the Fund's consent except that it may be
so assigned to an affiliate or wholly-owned subsidiary of it, Provident
National Corporation or PNC Financial Corp upon at least thirty (30) days prior
written notice to the Fund.
27. 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. 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,
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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] ASSET MANAGEMENT FUND FOR
FINANCIAL INSTITUTIONS, INC.
Attest:/s/ By:/s/
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TITLE
[SEAL] PROVIDENT NATIONAL BANK
Attest:/s/ By:/s/
---------------------- -------------------------
TITLE
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