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EXHIBIT 8(a)
CUSTODY AGREEMENT
THIS AGREEMENT is made this 20th day of July, 1983 by and
between MUNICIPAL FUND FOR NEW YORK INVESTORS, INC., a Maryland corporation
(the "Fund"), and PROVIDENT NATIONAL BANK, a national banking association
("Provident").
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end, diversified,
management investment company under the Investment Company Act of 1940, as
amended ("▇▇▇ ▇▇▇▇ ▇▇▇"), offering Class A Common Stock, $.001 par value per
share (such shares herein called "Shares" and such class of Shares herein
called "Class"); and
WHEREAS, the Fund desires to retain Provident to serve as the
Fund's custodian and Provident is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints Provident to
act as custodian of the portfolio securities, cash and other property of the
Fund for the period and on the terms set forth in this Agreement. Provident
accepts such appointment and agrees to furnish the services herein set forth in
return for the compensation as provided in Paragraph 21 of this Agreement.
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Provident agrees to comply with all relevant provisions of the 1940 Act and
applicable rules and regulations thereunder.
2. Delivery of Documents. The Fund has furnished
Provident with copies properly certified or authenticated of each of the
following:
(a) Resolutions of the Fund's Board of Directors
authorizing the appointment of Provident as custodian of the portfolio
securities, cash and other property of 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
March 4, 1983 and all amendments thereto (such Articles of Incorporation, as
currently 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 currently in effect and as they shall from time to time be
amended, are herein called the "By-Laws");
(e) Resolutions of the Fund's Board of Directors
appointing Provident Institutional Management Corporation ("PIMC") as the
Fund's investment adviser and resolutions of the Fund's Board of Directors and
Shareholders approving a proposed
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Advisory Agreement between PIMC and the Fund (the "Advisory Agreement");
(f) Resolutions of the Fund's Board of Directors
appointing Provident National Bank ("Provident") as the Fund's sub-investment
adviser and resolutions of the Fund's Board of Directors and Shareholders
approving a proposed Sub-Advisory Agreement between PIMC and Provident (the
"Sub-Advisory Agreement");
(g) Resolutions of the Fund's Board of Directors
appointing Shearson/American Express Inc. ("Shearson") as the Fund's
distributor and approving a proposed Distribution Agreement between Shearson
and the Fund (the "Distribution Agreement");
(h) Resolutions of the Fund's Board of Directors
appointing The Boston Company Advisors, Inc. ("Boston Advisors") as the Fund's
administrator and approving a proposed Administration Agreement between Boston
Advisors and the Fund (the "Administration Agreement");
(i) Resolutions of the Fund's Board of Directors
appointing Provident Financial Processing Corporation ("PFPC") as the Fund's
transfer agent and approving a proposed Transfer Agency Agreement between the
Fund and PFPC (the "Transfer Agency Agreement");
(j) The Advisory Agreement, the Sub-Advisory
Agreement, the Distribution Agreement, the Administration Agreement, and the
Transfer Agency Agreement;
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(k) The Fund's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act on Form N-8A with the Securities and
Exchange Commission ("SEC") on March 8, 1983;
(l) The Fund's Registration Statement on Form N-1
under the 1940 Act and the Securities Act of 1933, as amended ("▇▇▇ ▇▇▇▇ ▇▇▇"),
as filed with the ▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇ (▇▇▇▇ No. 2-82278) relating to the Shares,
and all amendments thereto; and
(m) The Fund's most recent prospectus (such
prospectus as presently in effect and all amendments and supplements thereto
are herein called the "Prospectus").
The Fund will furnish Provident from time to time with copies
of all amendments of or supplements to the foregoing, if any.
3. Definitions.
(a) "Authorized Persons." As used in this
Agreement, the term "Authorized Person" means the Fund's President, Treasurer,
and any other person, whether or not any such person is an officer or employee
of the Fund, duly authorized by the Board of Directors of the Fund to give Oral
and 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) "Oral Instructions." As used in this
Agreement, the term "Oral Instructions" means verbal 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 Fund agrees
to deliver to Provident, at the time and in the manner specified in Paragraph
7(b) of this Agreement, Written Instructions confirming Oral Instructions.
(c) "Property." The term "Property," as used in
this Agreement, means:
(i) any and all securities and other
property which the Fund may from time to time deposit, or cause to be
deposited, with Provident or which Provident may from time to time
hold for the Fund;
(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 Fund, which are received by Provident from
time to time from or on behalf of the Fund.
(d) "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
moneys owned by it, including cash received
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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 Fund or in
the name of a nominee of the Fund or in the name of Provident or 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.
5. Receipt and Disbursement of Money.
(a) Provident shall open and maintain a separate
custodial account or accounts 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 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 as provided in Paragraph 11 hereof; (ii) for the
redemption of Shares as provided in subparagraph (b) of Paragraph 8 hereof;
(iii) upon receipt of Written Instructions, for the payment of interest,
dividends, taxes, or custodial, transfer agency, administration, distribution
or advisory fees or expenses which are to be borne by the Fund under the terms
of this Agreement, the Transfer
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Agency Agreement, the Advisory Agreement, the Sub-Advisory Agreement, the
Administration Agreement and the Distribution Agreement; (iv) upon receipt of
Written Instructions, for payments in connection with the conversion, exchange
or surrender of securities owned or subscribed to by the Fund and held by or to
be delivered to Provident; (v) to a subcustodian pursuant to Paragraph 6
hereof; or (vi) upon receipt of Written Instructions, for other proper Fund
purposes.
(b) Provident is hereby authorized to endorse and
collect all checks, drafts or other orders for the payment of money received as
custodian for the account of the Fund.
6. Receipt of Securities. (a) Provident shall hold and
physically segregate in a separate account identifiable at all times from those
of any other persons, firms, or corporations, all securities and non-cash
property received by it for the account of the Fund. All such securities and
non-cash property are to be held or disposed of by Provident for 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 specific transaction, Provident shall have no power
or authority to withdraw, deliver, assign, hypothecate, pledge or otherwise
dispose of any such securities and investments except in accordance with the
express terms provided for in this Agreement. In no case may any director,
officer, employee or agent of the Fund withdraw any securities. In connection
with its duties under this Paragraph
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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 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. Provident shall remain
responsible for the performance of all of its duties under this Agreement and
shall hold the Fund harmless from the acts and omissions of any bank or trust
company that it might choose pursuant to this Paragraph 6.
(b) Promptly after the close of business each
day, Provident shall furnish the Fund with confirmation and a summary of all
transfers to or from the account of the Fund during said day. At least monthly
and from time to time, Provident shall furnish the Fund with a detailed
statement of the Property held for the Fund under this Agreement.
7. 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
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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 Fund agrees to forward to Provident Written
Instructions confirming Oral Instructions in such manner that the Written
Instructions are received by Provident, whether by hand delivery, telex,
facsimile sending device or otherwise, by the close of business of the same day
that such Oral Instructions are given to Provident. The Fund agrees that the
fact that such confirming Written Instructions are not received by Provident
shall in no way affect the validity of the transactions or enforceability of
the transactions authorized by the Fund by giving Oral Instructions. The Fund
agrees that Provident shall incur no liability to the Fund in acting upon Oral
Instructions given to Provident hereunder concerning such transactions provided
such instructions reasonably appear to have been received from an Authorized
Person.
8. Transactions Not Requiring Instructions. Provident
is authorized to take the following action without Oral or Written
Instructions:
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(a) Deposits of Proceeds of Issuance of Shares.
Provident shall collect and receive for the
account of the Fund all payments received in payment for Shares issued by the
Fund.
(b) Redemptions.
Upon receipt of notice by the Fund's transfer
agent stating that such transfer agent is required to redeem Shares and
specifying the number and Class of Shares which such transfer agent is required
to redeem and the date and time the request or requests for redemption were
received by the Fund's distributor, Provident shall either (i) pay to such
transfer agent, for distribution to the redeeming Shareholder, the amount
payable to such Shareholder upon the redemption of such Shares as determined in
the manner described in the then current Prospectus, or (ii) arrange for the
direct payment of such redemption proceeds by Provident to the redeeming
Shareholder in accordance with such procedures and controls as are mutually
agreed upon from time to time by and among Provident, the Fund and the Fund's
transfer agent.
(c) Collection of Income and Other Payments.
Provident shall:
(i) collect and receive for the account
of the Fund, all income and other payments and distributions,
including (without limitation) stock dividends, rights, warrants and
similar items, included or to be included in the Property, and shall
promptly advise the Fund of such
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receipt and shall credit such income, as collected, to the Fund's
custodian account;
(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
the Fund all securities received as a distribution on the portfolio
securities of the Fund 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 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, or retired, or otherwise become payable on the date such
securities become payable; and
(v) take any action which may be
necessary and proper in connection with the collection and receipt of
such income, payments and other Property and the endorsement for
collection of checks, drafts, and other negotiable instruments.
(d) Miscellaneous Transactions. Provident is
authorized to deliver or cause to be delivered Property against payment or
other consideration or written receipt therefor in the following cases:
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(i) for examination by a broker selling
for the account of the Fund in accordance with street delivery custom;
(ii) for the exchange of interim receipts
or temporary securities for definitive securities; and
(iii) for transfer of securities into the
name of the Fund or Provident or a nominee of either, or for exchange
of securities for a different number of bonds, certificates, or other
evidence, representing the same aggregate face amount or number of
units bearing the same interest rate, maturity date and call
provisions, if any; provided that, in any such case, the new
securities are to be delivered to Provident.
9. Transactions Requiring Instructions. Upon receipt of
Oral or Written Instructions and not otherwise, Provident shall:
(a) execute and deliver to such persons as may be
designated in such Oral or Written Instructions, proxies, consents,
authorizations, and other 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, recapitalization or sale
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of assets of any corporation, or the exercise of any conversion
privilege;
(c) deliver any securities held for the Fund to
any protective committee, reorganization committee or other person in
connection with the liquidation, reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any corporation,
and receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(d) make such transfers or exchanges of the
assets of the Fund and take such other steps as shall be stated in
said Oral or Written Instructions to be for the purpose of
effectuating any duly authorized plan of liquidation, reorganization,
merger, consolidation, recapitalization or sale of assets of the Fund;
and
(e) release securities belonging to the Fund to
any bank or trust company for the purpose of pledge or hypothecation
to secure any loan incurred by the Fund; provided, however, that
securities shall be released only upon payment to Provident of the
monies borrowed, except that in cases where additional collateral is
required to secure a borrowing already made, subject to proper prior
authorization, further securities may be released for that purpose;
and pay such loan upon redelivery to it of the
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securities pledged or hypothecated therefor and upon surrender of the
note or notes evidencing the loan.
10. Dividends and Distributions. The Fund shall furnish
Provident with appropriate evidence of action by the Fund's Board of Directors
declaring and authorizing the payment of any dividends and distributions to the
Fund's Shareholders. Upon receipt by Provident of Written Instructions with
respect to dividends and distributions declared by the Fund's Board of
Directors and payable to the Fund's Shareholders, and in conformance with
procedures mutually agreed upon by Provident, the Fund, and the Fund's transfer
agent, Provident shall pay to the Fund's transfer agent, as agent for the
Shareholders, an amount equal to the amount indicated in said Written
Instructions as payable by the Fund to the Shareholders for distribution in
cash by the transfer agent to the Shareholders or for reinvestment by the
transfer agent, with respect to those Shareholders who have elected in proper
manner to reinvest their dividends, in additional Shares. In lieu of paying
the Fund's transfer agent cash dividends and distributions, Provident may
arrange for the direct payment of cash dividends and distributions to
Shareholders by Provident in accordance with such procedures and controls as
are mutually agreed upon from time to time by and among the Fund, Provident and
the Fund's transfer agent.
11. Purchases of Securities. Promptly after each
decision to purchase securities for the Fund, the Fund, through
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PIMC, 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
Fund, pay out of the moneys held for the account 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 decision by
PIMC to sell securities for the Fund, the Fund, through PIMC, 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, 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 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
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shall be satisfactory to it, and may deliver securities and arrange for payment
in accordance with the customs prevailing among dealers in securities.
13. Correspondence. Provident shall answer
correspondence from securities brokers and others relating to its duties
hereunder and such other correspondence as may from time to time be mutually
agreed upon between Provident and the Fund.
14. Records. Provident shall keep and maintain
appropriate financial books and records with respect to its duties hereunder
for the Fund. The books and records pertaining to the Fund which are in the
possession of Provident shall be the property of the Fund. Such books and
records shall be prepared and maintained as required by the 1940 Act and other
applicable securities laws and rules and regulations. The Fund, or the Fund's
authorized representatives, shall have access to such books and records at all
times during Provident's normal 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.
15. 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 the Fund;
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(c) a monthly report of portfolio securities
belonging to the Fund showing the adjusted average cost of each issue and the
market value at the end of such month;
(d) a monthly report of the cash account of the
Fund showing disbursements; and
(e) such other information as may be agreed upon
from time to time between the Fund and Provident.
16. Cooperation with Accountants. Provident shall
cooperate with the Fund's independent certified public accountants and shall
take all reasonable action in the performance of its obligations under this
Agreement to assure that the necessary information is made available to such
accountants for the expression of their unqualified opinion, including but not
limited to the opinion included in the Fund's annual report on Form N-1R.
17. Confidentiality. Provident agrees on behalf of
itself and its employees to treat confidentially and as the proprietary
information of the Fund all records and other information relative to the Fund
and its prior, present or potential Shareholders and relative to Shearson and
its prior, present or potential customers, and not to use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder, except after prior notification to and approval in writing by
the Fund, which approval shall not unreasonably be withheld and may not be
withheld where Provident may be exposed to civil or criminal
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contempt proceedings for failure to comply, when requested to divulge this
information by duly constituted authorities, or when so requested by the Fund.
18. Equipment Failures. In the event of equipment
failures beyond Provident's control, Provident shall, at no additional expense
to the Fund, take reasonable steps to minimize service interruptions but shall
have no liability with respect thereto. Provident shall enter into and shall
maintain in effect with appropriate parties one or more agreements making
reasonable provision for emergency use of electronic data processing equipment
to the extent appropriate equipment is available.
19. 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
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 PIMC, PFPC, Shearson, Boston Advisors, the
Fund, or Provident, at the option of Provident).
(c) Conflicting Advice. In case of conflict
between directions or advice (including Oral or Written Instructions) received
by Provident pursuant to subparagraph (a) of this paragraph and advice received
by Provident pursuant to
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subparagraph (b) of this paragraph, Provident shall be entitled to rely on and
follow the advice received pursuant to the latter provision alone.
(d) Protection of Provident. Provident shall be
protected in any action or inaction which it takes in reliance on any
directions or advice (including Oral or Written Instructions) received pursuant
to subparagraphs (a) or (b) of this paragraph which Provident, after receipt of
such directions or advice, reasonably and in good faith believes to be
consistent with such directions or advice, as the case may be. However,
nothing in this paragraph shall be construed as imposing upon Provident any
obligation (i) to seek such directions or advice (including Oral or Written
Instructions), or (ii) to act in accordance with such directions or advice when
received, unless, under the terms of another provision of this Agreement, the
same is a condition to Provident's properly taking or omitting to take such
action. Nothing in this subsection shall excuse Provident when an action or
omission on the part of Provident constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard by Provident of its duties under this
Agreement.
20. 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.
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21. Compensation. As compensation for the services
rendered by Provident during the term of this Agreement, the Fund will pay to
Provident monthly fees equal to $.25 per year for each $1,000 of the Fund's
average gross assets for such year (based on the average of the assets included
in the net asset value of the Fund on each day in such month that such value is
calculated).
22. Indemnification. The Fund, as sole owner of the
Property, agrees to indemnify and hold harmless Provident and its nominees from
all taxes, charges, expenses, assessments, claims and liabilities (including,
without limitation, liabilities arising under the 1933 Act, the Securities
Exchange Act of 1934, the 1940 Act, and any state and foreign securities and
blue sky laws, all as or to be amended from time to time) and expenses,
including (without limitation) attorneys' fees and disbursements, arising
directly or indirectly (a) from the fact that securities included in the
Property are registered in the name of any such nominee or (b) without limiting
the generality of the foregoing 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 Shareholders
(or any expenses incident to such liability) arising out of (x) Provident's or
such nominee's own willful misfeasance, bad faith, gross negligence or reckless
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disregard of its duties under this Agreement or (y) Provident'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.
23. 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 the 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
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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
except as provided in paragraph 18 hereof, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply, nor shall Provident be under any duty or obligation to
ascertain whether any Property at any time delivered to or held by Provident
may properly be held by or for the Fund.
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
Fund. In any case in which Provident
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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.
25. Duration and Termination. This Agreement shall
continue until termination by the Fund or Provident on sixty (60) days' written
notice. Upon any termination of this Agreement, pending appointment of a
successor to Provident or vote of the Shareholders of the Fund to dissolve or
to function without a custodian of its cash, securities or other property,
Provident shall not deliver cash, securities or other property of the Fund to
the Fund, but may deliver them to a bank or trust company of its own selection,
having an aggregate capital, surplus and undivided profits, as shown by its
last published report of not less than twenty million dollars ($20,000,000) as
a custodian for the Fund to be held under terms similar to those of this
Agreement; provided, however, that Provident shall not be required to make any
such delivery or payment until full payment shall have been made by the Fund of
all liabilities constituting a charge on or against the properties of the Fund
then held by
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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 21 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, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, marked for the attention of the Custodian
Services Department (or its successor); (b) if to the Fund, at the address of
the Fund; or (c) if to neither of the foregoing, at such other address as shall
have been notified to the sender of any such Notice or other communication. If
the location of the sender of a Notice and the address of the addressee thereof
are, at the time of sending, more than 100 miles apart, the Notice may be sent
by first-class mail, in which case it shall be deemed to have been given three
days after it is sent, or if sent by confirming telegram, cable, telex or
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 addressee
thereof are, at the time of sending, not more than 100 miles apart, the Notice
may be sent by first-class mail, in which case it shall be deemed to have been
given two days after it is sent, or if sent by messenger, it shall be deemed to
have been
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25
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.
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 or waived only by an instrument in writing signed by the party against
which enforcement of such change or waiver is sought.
29. Delegation. On thirty (30) days' prior written
notice to the Fund, Provident may assign its rights and delegate its duties
hereunder to any wholly-owned subsidiary of it or PNC Financial Corp., provided
that Provident may delegate its duties only to a bank having the qualifications
provided in section 17(f) of the 1940 Act, and further provided that Provident
and its delegate shall promptly provide such information as the Fund may
request and respond to such questions as the Fund may ask relative to the
delegation, including (without limitation) the capabilities of the delegate.
30. 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
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26
embody in one or more separate documents their agreement, if any, with respect
to delegated and/or Oral or Written Instructions. The captions in this
Agreement are included for convenience of reference only and in no way define
or delimit any of the provisions hereof or otherwise affect their construction
or effect. This Agreement shall be deemed to be a contract made in
Pennsylvania and governed by Pennsylvania law. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby. This
Agreement shall be binding and shall inure to the benefit of the parties hereto
and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on the day and year
first above written.
[SEAL] MUNICIPAL FUND FOR NEW YORK
INVESTORS, INC.
Attest:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------- ----------------------------
[SEAL] PROVIDENT NATIONAL BANK
Attest:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By:
----------------------- ----------------------------
Vice President and
Secretary
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27
APPENDIX A
Certificate
The following resolutions adopted by the Board of Directors of
Municipal Fund for New York Investors, Inc. (the "Fund") on July 15, 1983
identify the persons authorized to give Oral and Written Instructions on behalf
of the Fund under the Fund's Custody Agreement with Provident National Bank:
RESOLVED, that, in addition to the Fund's President and
Treasurer, any one of the following individuals be, and each of them
hereby is, authorized to give "Oral Instructions" on behalf of the
Fund to the Custodian under the proposed Custody Agreement between the
Fund and Provident National Bank, provided that no person shall be
authorized or permitted to withdraw Fund investments or assets upon
his mere receipt:
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇-▇▇▇ ▇. ▇▇▇▇▇;
FURTHER RESOLVED, that, in addition to the Fund's President
and Treasurer, any two of the individuals named above be, and hereby
are, authorized to give "Written Instructions" to the Custodian under
such Custody Agreement; provided, however, that Written Instructions
given in connection with the issuance of checks and other drafts in
payment of the Fund's operating expenses as provided therein must not
be given except upon prior written authorization of the Fund's
President or Treasurer; and provided further that no one or more
persons shall be authorized or permitted to withdraw Fund investments
or assets upon his or their mere receipt; and
FURTHER RESOLVED, that notwithstanding anything to the
contrary in the foregoing resolutions, only any one of the following
individuals be, and hereby is, authorized to give "Oral Instructions,"
and only any two of the following individuals be, and hereby are,
authorized to give "Written Instructions," to the Custodian under
such Custody Agreement in connection with the purchase and sale of
portfolio
28
securities, provided that no one or more persons shall be authorized
or permitted to withdraw Fund investments or assets upon his or their
mere receipt:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
MUNICIPAL FUND FOR NEW YORK
INVESTORS, INC.
By:
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary
DATED: July 20, 1983