Exhibit 8
CUSTODIAN AGREEMENT
THIS AGREEMENT is made as of July 3, 1989 by and between PCS
Cash Fund, 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 Fund Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain Provident to serve as
the Fund's custodian and Provident is willing to serve as the
Fund's custodian;
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 its portfolio securities with respect to
the Fund's three investment portfolios: M.S. Money Market
Portfolio, M.S. Tax-Free Money Market Portfolio and M.S.
Government Obligations Money Market Portfolio (collectively, the
"Portfolios"), cash and other property belonging to 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
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provided in Paragraph 21 of this Agreement. The Fund may from
time to time issue separate series, classes or classify and
reclassify shares of such series or class. Provident shall
identify to each such series or class property belonging to such
series or class and in such reports, confirmations and notices to
the Fund called for under this Agreement shall identify the
series or class to which such report, confirmation or notice
pertains.
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 belonging to the
Fund and approving this Agreement;
(b) Appendix A identifying and containing the
signatures of the Fund's officers and/or other persons authorized
to issue Oral Instructions and to sign Written Instructions, as
hereinafter defined, on behalf of the Fund;
(c) The Fund's Articles of Incorporation filed
with the Maryland Department of Assessments and Taxation on
January 6, 1989 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");
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(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 the "By-Laws");
(e) The Investment Advisory Agreement between
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Asset Management Inc. (the "Advisor") and the Fund
dated as of July 3, 1989 (the "Advisory Agreement");
(f) The Distribution Agreement between the Fund
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated dated July 3, 1989 (the
"Distribution Agreement");
(g) The Transfer Agency Agreement between
Provident Financial Processing Corporation (the "Transfer Agent")
and the Fund dated as of July 3, 1989 (the "Transfer Agency
Agreement");
(h) The Administration and Accounting Services
Agreement between Provident Financial Processing Corporation (the
"Administrator") and the Fund dated as of July 3, 1989 (the
"Administration Agreement");
(i) 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 January 5, 1989;
(j) The Fund's most recent Registration,
Statement on Form N-1A under the Securities Act of 1933, as
amended (the "1933 Act") (File No. 33-26417) and under the 1940
Act as filed with the SEC on April 7, 1989 relating to shares of
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the Fund's Common Stock, $.001 per value ("Shares"), and all
amendments thereto; and
(k) The Fund's most recent prospectus or
prospectuses relating to Shares (such prospectus or prospectuses,
as presently in affect and all amendments and supplements thereto
are herein called the "Prospectus"); and
(l) Before the Fund engages in any transactions
regulated by the Commodity Futures Trading Commission ("CFTC"), a
copy of either (i) a filed notice of eligibility to claim the
exclusion from the definition of "commodity pool operator"
contained in Section 2(a)(1)(A) of the Commodity Exchange Act
("CEA") that is provided in Rule 4.5 under the CEA, together with
all supplements as are required by the CFTC, or (ii) a letter
which has been granted the Fund by the CFTC which states that the
Fund will not be treated as a "pool" as defined in Section
4.10(d) of the CFTC's General Regulations, or (iii) a letter
which has been granted the Fund by the CFTC which states that the
CFTC will not take any enforcement action if the Fund does not
register as a "commodity pool operator."
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 any of the officers
of the Fund and any other person, whether or not any such person
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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 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
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:
(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;
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(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.
(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.
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
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 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 custodian
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 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 for the Fund's portfolio as
provided in Paragraph 13 hereof; (ii) upon receipt of Written
Instructions, for the payment of interest, dividends, taxes,
administration, distribution, advisory fees or expenses which are
to be borne by the Fund under the terms of this Agreement, the
Advisory Agreement, the Administration Agreement, the Transfer
Agency Agreement and the Distribution Agreement; (iii) 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; (iv) to a sub-custodian pursuant to Paragraph 6
hereof; (v) for the redemption of Fund Shares; (vi) for payment
of the amount of dividends received in respect of securities sold
short; or (vii) upon receipt of Written Instructions, for other
proper Fund 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 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) 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 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
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 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 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 one million dollars
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($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
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 Fund 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 Fund established pursuant to Paragraph 7 hereof,
Provident shall also by book-entry or otherwise identify as
belonging to 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 the Fund under this Agreement.
7. Use of Book-Entry System. The Fund shall deliver
to Provident certified resolutions 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 (a)
to deposit in the Book-Entry System all securities belonging to
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the Fund 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 by the Fund, and
deliveries and returns of securities loaned, subject to
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 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 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 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.
(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 promptly 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.
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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 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 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 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.
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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 Fund, 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 Fund of
such 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, 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
Fund all securities received as a distribution on 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
belonging to the Fund held by Provident hereunder;
(iv) present for payment and collect the
amount payable upon all securities which may mature or be
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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 Fund in accordance with street delivery
custom;
(ii) for the exchange of interim receipts or
temporary securities for definitive securities; and
(c) 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.
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:
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(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
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 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 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 or recapitalization of the
Fund;
(e) release securities belonging to the Fund to
any bank or trust company for the purpose of pledge or
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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 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
Fund in connection with any repurchase agreement entered into on
behalf of the Fund, but only on receipt of payment therefor; and
pay out moneys of the Fund in connection with such repurchase
agreements, but only upon the delivery of the securities; and
(g) otherwise transfer, exchange or deliver
securities in accordance with Oral or Written Instructions.
11. Segregated Accounts.
(a) 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 Fund, 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 Fund 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
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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.
(b) Provident may enter into separate custodial
agreements with various futures commission merchants ("FCMs")
that the Fund uses (each an "FCM Agreement"), pursuant to which
the Fund's margin deposits in any transactions involving futures
contracts and options on futures contracts will be held by
Provident in accounts (each an "FCM Account") subject to the
disposition by the FCM involved in such contracts in accordance
with the customer contract between FCM and the Fund ("FCM
Contract"), SEC rules governing such segregated accounts, CFTC
rules and the rules of the applicable commodities exchange. Such
FCM Agreements shall only be entered into upon receipt of Written
Instructions from the Fund which state that (i) a customer
agreement between the FCM and the Fund has been entered into; and
(ii) the Fund is in compliance with all the rules and regulations
of the CFTC. Transfers of initial margin shall be made into an
FCM Account only upon Written Instructions; transfers of premium
and variation margin may be made into an FCM Account pursuant to
Oral Instructions. Transfers of funds from an FCM Account to the
FCM for which Provident holds such an account may only occur upon
certification by the FCM to Provident that pursuant to the FCM
Agreement and the FCM Contract, all conditions precedent to its
right to give Provident such instruction have been satisfied.
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12. 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. Upon receipt by Provident of
Written Instructions with respect to dividends and distributions
declared by the Fund'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 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 such Shareholders for distribution in cash by the
Transfer Agent to such Shareholders. 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.
In accordance with the Prospectus, the Internal Revenue
Code and regulations promulgated thereunder, and 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, Provident shall arrange for the establishment of ▇▇▇
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custodian accounts for such Shareholders holding Shares through
▇▇▇ accounts.
13. Purchases of Securities. Promptly after each
decision to purchase securities by the Advisor, the Fund, 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 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.
14. Sales of Securities. Promptly after each decision
to sell securities by the Advisor or exercise of an option
written by the Fund, the Fund, 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 Fund upon
such sale, and (f) the name of the broker through whom or the
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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 and 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
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 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.
16. Reports.
(a) Provident shall furnish the Fund the
following reports:
(1) such periodic and special reports
as the Fund may reasonably request;
(2) a monthly statement summarizing all
transactions and entries for the account of the Fund,
listing the portfolio securities belonging to the Fund
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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 Fund including disbursements;
(3) the reports to be furnished to the
Fund pursuant to Rule 17f-4; and
(4) such other information as may be
agreed upon from time to time between the Fund and
Provident.
(b) Provident shall transmit promptly to the Fund
any proxy statement, proxy materials, notice of a call or
conversion or similar communications received by it as Custodian
of the Property.
17. Cooperation with Accountants. Provident shall
cooperate with the Fund'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 Fund.
18. Confidentiality. Provident agrees on behalf of
itself and its employees to treat confidentially all records and
other information relative to the Fund and its prior, present, or
potential Shareholders, except, after prior notification to and
approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where Provident may
be exposed to civil or criminal contempt proceedings for failure
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to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
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 the
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 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
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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 any duties or obligations under this Agreement.
20. Compliance with Governmental Rules and
Regulations. Provident undertakes to comply with all applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act, the
CEA, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by Provident hereunder.
21. Compensation. As compensation for the services
rendered by Provident during the term of this Agreement, the Fund
will pay to Provident monthly fees that shall be agreed upon from
time to time in writing by Provident and the Fund.
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 1934 Act, the 1940 Act, the CEA,
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and any state and foreign securities and blue sky laws, all as or
to be amended from time to time) and expenses, including
attorneys' fees and disbursements as long as such attorney has
been retained with the consent of the Fund, which consent shall
not be unreasonably withheld, 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 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
order that the indemnification provision contained in this
Paragraph 22 shall apply, it is understood that if in any case
the Fund may be asked to indemnify or save Provident harmless,
the Fund shall be fully and promptly advised of all pertinent
facts concerning the situation in question, and it is further
understood that Provident will use all reasonable care to
identify and notify the Fund promptly concerning any situation
which presents or appears likely to present the probability of
such a claim for indemnification against the Fund. The Fund
23
shall have the option to defend Provident against any claim which
may be the subject of this indemnification and, in the event that
the Fund so elects, it will so notify Provident and thereupon the
Fund shall take over complete defense for the claim, and
Provident shall in such situation incur no further legal, or
other expenses for which it shall seek indemnification under this
Paragraph 22. Provident shall in no case confess any claim or
make any compromise or settlement in any case in which the Fund
will be asked to indemnify Provident, except with the Fund's
prior written consent.
In the event of any advance of cash for any purpose
made by Provident resulting from 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 and completeness
24
of all services performed under this Agreement. Provident shall
be responsible for and shall hold the Fund harmless from all
loss, cost, damage and expense, including reasonable attorney
fees (as long as such attorney has been retained with the consent
of Provident, which consent shall not be unreasonably withheld),
incurred by it resulting from any claim, demand, action or suit
arising out of Provident's own negligent failure to perform its
duties under this Agreement. In order that the indemnification
provision contained in this Paragraph 23 shall apply, it is
understood that if in any case Provident may be asked to
indemnify or save the Fund harmless, Provident shall be fully and
promptly advised of all pertinent facts concerning the situation
in question, and it is further understood that the Fund will use
all reasonable care to identify and notify Provident promptly
concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification
against Provident. Provident shall have the option to defend the
Fund against any claim which may be the subject of this
indemnification and, in the event that Provident elects, it will
so notify the Fund and thereupon Provident shall take over
complete defense for the claim, and the Fund shall in such
situation incur no further legal or other expense for which it
shall seek indemnification under this Paragraph 23. The Fund
shall in no case confess any claim or make any compromise or
settlement in any case in which Provident will be asked to
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indemnify the Fund, except with Provident's prior written
consent.
To the extent that duties, obligations and
responsibilities are not expressly set forth in this Agreement,
however, 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,
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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. Notwithstanding the
foregoing, Provident shall use its best efforts to mitigate the
effects of the events in clause (d) above, although such efforts
shall not impute any liability thereto. Provident expressly
disclaims all responsibility for consequential damages, including
but not limited to any that may result from performance or non-
performance of any duty or obligation whether express or implied
in this Agreement, and also expressly disclaims any express or
implied warranty of products or services provided in connection
with this Agreement.
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
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
27
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 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 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 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.
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
28
at Provident's address, Airport Business Center, International
Court 2, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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 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 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 three 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.
27. Further Actions. Each party agrees to perform
such further acts and execute such further documents as are
necessary to effectuate the purposes hereof.
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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 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; (ii) Provident and
such 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; (iii) the delegation of such duties
shall not relieve Provident of any of its duties hereunder; and
(iv) if the Fund notifies Provident within such thirty (30) day
period of its objection to such delegation and Provident,
notwithstanding such notification of objection, assigns its
rights and delegates, its duties thereunder, then the Fund may
terminate this Agreement immediately or upon such notice as the
Fund, in its sole discretion determines, without complying with
the sixty (60) day notice prescribed by Paragraph 25 hereof.
30. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
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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. 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} PCS CASH FUND, INC.
Attest: By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
{SEAL} PROVIDENT NATIONAL BANK
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
31