EX-99.B(8)
CUSTODIAN AGREEMENT
THIS AGREEMENT is made as of February 26, 1990 by and between MANAGED
MUNICIPAL 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, management investment
company under the Investment Company 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
the portfolio securities, 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 provided in Paragraph 21 of this Agreement. Provident agrees
to comply with all relevant provisions of the 1940 Act and applicable rules and
regulations thereunder. The Fund may from time to time issue separate series or
classes of its shares of capital stock, $.001 par value, 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 Department of
Assessments and Taxation of the State of Maryland on January 5, 1990 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 the "By-Laws");
(e) The Investment Advisory Agreement between X.X. Xxxxxxxx, Xxxxxx
Xxxxxxxx Inc. ("X.X. Xxxxxxxx" or the "Advisor") and the Fund dated as of
February __, 1990 (the "Advisory Agreement");
(f) The Distribution Agreement between the Fund and X.X. Xxxxxxxx
dated February __, 1990 (the "Distribution Agreement");
(g) The Administration Agreement between the Fund and Alex. Xxxxx &
Sons Incorporated (the "Administrator") dated February __, 1990 (the
"Administration Agreement");
(h) The Transfer Agency Agreement between Provident Financial
Processing Corporation (the "Transfer Agent") and the Fund dated as of February
__, 1990 (the "Transfer Agency Agreement");
(i) The Accounting Services Agreement between Provident Financial
Processing Corporation and the Fund dated as of February __, 1990 (the
"Accounting Services Agreement");
(j) 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 8, 1990;
(k) The Fund's most recent Registration Statement on Form N-1A under
the Securities Act of 1933, as amended (the "1933 Act") (File No. 33-32819) and
under the 1940 Act as filed with the SEC on January 8, 1990 relating to shares
of the Fund's Common Stock, $.001 par value ("Shares"), and all amendments
thereto; and
(l) The Fund's most recent prospectus or prospectuses relating to
Shares (such prospectus or prospectuses, 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 any of the officers 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 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;
(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,
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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 Provident or in
the name of any nominee of Provident (with or without indication of fiduciary
status), or in the name of any sub-custodian or any nominee of any such
sub-custodian appointed pursuant to Paragraph 6 hereof or shall be properly
endorsed and in form for transfer satisfactory to Provident.
5. Receipt and Disbursement of Money.
(a) Provident shall open and maintain a separate custodial account or
accounts in the name of the 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, accounting, distribution, advisory or sub-advisory fees or
expenses which are to be borne by the Fund under the terms of this Agreement,
the Advisory Agreement, the Accounting Services 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.
(b) Provident is hereby authorized to endorse and collect all checks,
drafts, negotiable instruments or other orders for the payment of money received
as custodian for the account of the Fund.
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6. Receipt of Securities.
(a) Except as provided by Paragraph 7 hereof, Provident shall hold and
physically segregate in a separate account, identifiable at all times from those
of any other persons, firms, or corporations, all securities and non-cash
property received by it for the account of the 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 ($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 actually received by Provident (a) to deposit in the
Book-Entry System all securities belonging to the Fund eligible for deposit
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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.
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
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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.
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, and 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 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.
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(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
(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.
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 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;
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(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 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 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 a "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 a "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
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margin may be made into a FCM Account pursuant to Oral Instructions. Transfers
of funds from a 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.
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 XXX
custodian accounts for such Shareholders holding Shares through XXX 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.
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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 purchase and settlement, (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 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 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.
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(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 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 to 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 the case may be. However,
nothing in this paragraph shall be construed as imposing upon Provident
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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, 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
Provident's or such nominee's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or responsibilities specifically described in
this Agreement. In the event of any advance of cash for any purpose made by
Provident resulting from Oral or Written Instructions of the 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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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 of all services performed under this
Agreement. Provident shall be responsible for its own negligent failure to
perform its duties under this Agreement, but to the extent that duties,
obligations and responsibilities are not expressly set forth in this Agreement,
Provident shall not be liable for any act or omission which does not constitute
willful misfeasance, bad faith or gross negligence on the part of Provident or
reckless disregard of such duties, obligations and responsibilities. Without
limiting the generality of the foregoing or of any other provision of this
Agreement, Provident in connection with its duties under this Agreement shall
not be under any duty or obligation to inquire into and shall not be liable for
or in respect of (a) the validity or invalidity or authority or lack thereof of
any Oral or Written Instruction, notice or other instrument which conforms to
the applicable requirements of this Agreement, if any, and which Provident
reasonably believes to be genuine; (b) the validity or invalidity of the
issuance of any securities included or to be included in the Property, the
legality or illegality of the purchase of such securities, or the propriety or
impropriety of the amount paid therefor; (c) the legality or illegality of the
sale (or exchange) of any Property or the propriety or impropriety of the amount
for which such Property is sold (or exchanged); or (d) delays or errors or loss
of data occurring by reason of circumstances beyond Provident's control,
including acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply, nor shall Provident be under any duty or obligation to
ascertain whether any Property at any time delivered to or held by Provident may
properly be held by or for the Fund. 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
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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 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 at Provident's address, 00xx xxx Xxxxxxxx Xxxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, 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
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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 direct or indirect subsidiary of Provident National Bank or PNC
Financial Corp, provided that (i) the delegate agrees with Provident to comply
with all relevant provisions of the 1940 Act; and (ii) Provident and such
delegate shall promptly provide such information as the 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. 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.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on
the day and year first above written.
[SEAL] MANAGED MUNICIPAL FUND, INC.
Attest: /s/ Xxxxx X. Xxxxxx By /s/ Xxxxxx X. Xxxxxxxx
----------------------------- --------------------------
Vice President
[SEAL] PROVIDENT NATIONAL BANK
Attest: /s/ Xxxx X. Xxxxxx, Xx. By /s/ X. Xxxxxxxx
----------------------------- --------------------------
XXXX X. XXXXXX, XX.
Vice President & Secretary
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INDEX
Paragraph Page
--------- ----
1. Appointment...................................................................................... 1
2. Delivery of Documents............................................................................ 1
3. Definitions...................................................................................... 3
4. Delivery and Registration of the Property........................................................ 4
5. Receipt and Disbursement of Money................................................................ 4
6. Receipt of Securities............................................................................ 5
7. Use of Book-Entry System......................................................................... 5
8. Instructions Consistent with Charter, etc........................................................ 6
9. Transactions Not Requiring Instructions.......................................................... 7
10. Transactions Requiring Instructions.............................................................. 8
11. Segregated Accounts.............................................................................. 9
12. Dividends and Distributions...................................................................... 10
13. Purchases of Securities.......................................................................... 10
14. Sales of Securities.............................................................................. 11
15. Records.......................................................................................... 11
16. Reports.......................................................................................... 11
17. Cooperation with Accountants..................................................................... 12
18. Confidentiality.................................................................................. 12
19. Right to Receive Advice.......................................................................... 12
20. Compliance with Governmental Rules and Regulations............................................... 13
21. Compensation..................................................................................... 13
22. Indemnification.................................................................................. 13
23. Responsibility of Provident...................................................................... 14
24. Collections...................................................................................... 14
25. Duration and Termination......................................................................... 15
26. Notices.......................................................................................... 15
27. Further Actions.................................................................................. 16
28. Amendments....................................................................................... 16
29. Delegation....................................................................................... 16
30. Counterparts..................................................................................... 16
31. Miscellaneous.................................................................................... 16
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