CUSTODIAN AGREEMENT
THIS AGREEMENT made on August 1, 1987, between ▇▇▇▇▇▇▇▇ Fund, Inc., a
Maryland Corporation (hereinafter called the "Corporation"), and FIRST WISCONSIN
TRUST COMPANY, a corporation organized under the laws of the State of Wisconsin
(hereinafter called "Custodian"),
W I T N E S S E T H :
WHEREAS, the Corporation desires that its securities and cash shall be
hereafter held and administered by Custodian pursuant to the terms of this
Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Corporation and Custodian agree as follows:
1. DEFINITIONS
The word "securities" as used herein include stocks, shares, bonds,
debentures, notes, mortgages, or other obligations and any certificates,
receipts, warrants or other instruments representing rights to receive, purchase
or subscribe for the same, or evidencing or representing any other rights or
interests therein, or in any property or assets.
The words "officers' certificate" shall mean a request or direction or
certification in writing signed in the name of the Corporation by one of the
following: the President, Vice President, Secretary or Treasurer of the
Corporation, or any other persons duly authorized to sign by the Board of
Directors of the Corporation.
2. NAMES, TITLES AND SIGNATURES OF CORPORATION'S OFFICERS
An officer of the Corporation will certify to Custodian the names and
signatures of those persons authorized to sign the officers' certificates
described in Section 1 hereof, and the names of the members of the Board of
Directors, together with any changes which may occur from time to time.
3. RECEIPT AND DISBURSEMENT OF MONEY
A. Custodian shall open and maintain a separate account or accounts
in the name of the Corporation, subject only to draft or order by Custodian
acting pursuant to the terms of this Agreement. Custodian shall hold in such
account or accounts, subject to the provisions hereof, all cash received by it
from or for the account of the Corporation. Custodian shall make payments of
cash to, or for the account of, the Corporation from such cash only (a) for the
purchase of securities for the portfolio of the Corporation upon the delivery of
such securities to Custodian, registered in the name of the Corporation or of
the nominee of Custodian referred to in Section 7 or in proper form for
transfer, (b) for the purchase or redemption of shares of the common stock of
the Corporation upon delivery thereof to Custodian, (c) for the payment of
interest, dividends, taxes, investment adviser's fees or operating expenses
(including, without
limitation thereto, fees for legal, accounting, auditing and custodian services
and expenses for printing and postage), (d) for payments in connection with the
conversion, exchange or surrender of securities owned or subscribed to by the
Corporation held by or to be delivered to Custodian, or (e) for other proper
corporate purposes certified by resolution of the Board of Directors of the
Corporation. Before making any such payment Custodian shall receive (and may
rely upon) an officers' certificate requesting such payment and stating that it
is for a purpose permitted under the terms of items (a), (b), (c) or (d) of this
Subsection A, and also, in respect of item (e), upon receipt of an officers'
certificate specifying the amount of such payment, setting forth the purpose for
which such payment is to be made, declaring such purpose to be a proper
corporate purpose, and naming the person or persons to whom such payment is to
be made; provided, however, that an officers' certificate need not precede the
disbursement of cash for the purpose of purchasing a money market instrument if
the President, a Vice President, the Secretary or the Treasurer of the
Corporation issues appropriate oral instructions to Custodian and an appropriate
officers' certificate is received by Custodian within two business days
thereafter.
B. Custodian is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received by Custodian for the
account of the Corporation.
4. RECEIPT OF SECURITIES
Custodian shall hold in a separate account, and physically segregated
at all times from those of any other persons, firms or corporations, pursuant to
the provisions hereof, all securities received by it from or for the account of
the Corporation. All such securities are to be held or disposed of by Custodian
for, and subject at all times to the instructions of, the Corporation pursuant
to the terms of this Agreement. The Custodian shall have no power or authority
to assign, hypothecate, pledge or otherwise dispose of any such securities and
investments, except pursuant to the direction of the Corporation and only for
the account of the Corporation as set forth in Section 5 of this Agreement.
5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
Custodian shall have sole power to release or deliver any securities
of the Corporation held by it pursuant to this Agreement. Custodian agrees to
transfer, exchange or deliver securities held by it hereunder only (a) for sales
of such securities for the account of the Corporation upon receipt by Custodian
of payment therefore, (b) when such securities are called, redeemed or retired
or otherwise become payable, (c) for examination by any broker selling any such
securities in accordance with "street delivery" custom, (d) in exchange for, or
upon conversion into, other securities alone or other securities and cash
whether pursuant to any plan of merger, consolidation, reorganization,
recapitalization or readjustment, or otherwise, (e) upon conversion of such
securities pursuant to their terms into other securities, (f) upon exercise of
subscription, purchase or other similar right, represented by such securities,
(g) for the purpose of exchanging interim receipts or temporary securities for
definitive securities, (h) for the purpose of redeeming in kind shares of common
stock of the Corporation upon delivery thereof to Custodian, or (i) for other
proper corporate purposes. As to any deliveries made by Custodian pursuant to
items (a), (b), (d), (e), (f), and (g), securities or cash receivable in
exchange therefore
2
shall be deliverable to Custodian. Before making any such transfer, exchange or
delivery, Custodian shall receive (and may rely upon) an officers' certificate
requesting such transfer, exchange or delivery, and stating that it is for a
purpose permitted under the terms of items (a), (b), (c), (d), (e), (f), (g) or
(h) of this Section 5 and also, in respect of item (i), upon receipt of an
officers' certificate specifying the securities to be delivered, setting forth
the purpose for which such delivery is to be made, declaring such purpose to be
a proper corporate purpose, and naming the person or persons to whom delivery of
such securities shall be made; provided, however, that an officers' certificate
need not precede any such transfer, exchange or delivery of a money market
instrument if the President, a Vice President, the Secretary or the Treasurer of
the Corporation issues appropriate oral instructions to Custodian and an
appropriate officers' certificate is received by Custodian within two business
days thereafter.
6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until Custodian receives an officers' certificate to the
contrary, Custodian shall: (a) present for payment all coupons and other income
items held by it for the account of the Corporation which call for payment upon
presentation and hold the cash received by it upon such payment for the account
of the Corporation; (b) collect interest and cash dividends received, with
notice to the Corporation, for the account of the Corporation; (c) hold for the
account of the Corporation hereunder all stock dividends, rights and similar
securities issued with respect to any securities held by it hereunder; and (d)
execute as agent on behalf of the Corporation all necessary ownership
certificates required by the Internal Revenue Code or the Income Tax Regulations
of the United States Treasury Department or under the laws of any state now or
hereafter in effect, inserting the Corporation's name on such certificates as
the owner of the securities covered thereby, to the extent it may lawfully do
so.
7. REGISTRATION OF SECURITIES
Except as otherwise directed by an officers' certificate Custodian
shall register all securities, except such as are in bearer form, in the name of
a registered nominee of Custodian as defined in the Internal Revenue Code and
any Regulations of the Treasury Department issued hereunder or in any provision
of any subsequent Federal tax law exempting such transaction from liability for
stock transfer taxes, and shall execute and deliver all such certificates in
connection therewith as may be required by such laws or regulations or under the
laws of any state. Custodian shall use its best efforts to the end that the
specific securities held by it hereunder shall be at all times identifiable in
its records.
The Corporation shall from time to time furnish to Custodian
appropriate instruments to enable Custodian to hold or deliver in proper form
for transfer, or to register in the name of its registered nominee, any
securities which it may hold for the account of the Corporation and which may
from time to time be registered in the name of the Corporation.
3
8. VOTING AND OTHER ACTION
Neither Custodian nor any nominee of Custodian shall vote any of the
securities held hereunder by or for the account of the Corporation, except in
accordance with the instructions contained in an officers' certificate.
Custodian shall deliver, or cause to be executed and delivered, to the
Corporation all notices, proxies and proxy soliciting materials with relation to
such securities, such proxies to be executed by the registered holder of such
securities (if registered otherwise than in the name of the Corporation), but
without indicating the manner in which such proxies are to be voted.
9. TRANSFER TAX AND OTHER DISBURSEMENTS
The Corporation shall pay or reimburse Custodian from time to time for
any transfer taxes payable upon transfers of securities made hereunder, and for
all other necessary and proper disbursements and expenses made or incurred by
Custodian in the performance of this Agreement.
Custodian shall execute and deliver such certificates in connection
with securities delivered to it or by it under this Agreement as may be required
under the provisions of the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, or under the laws of any state, to exempt
from taxation any exemptable transfers and/or deliveries of any such securities.
10. CONCERNING CUSTODIAN
Custodian shall be paid as compensation for its services pursuant to
this Agreement such compensation as may from time to time be agreed upon in
writing between the two parties. Until modified in writing such compensation
shall be as set forth in Exhibit A attached hereto.
Custodian shall not be liable for any action taken in good faith upon
any certificate herein described or certified copy of any resolution of the
Board of Directors, and may rely on the genuineness of any such document which
it may in good faith believe to have been validly executed.
The Corporation agrees to indemnify and hold harmless Custodian and
its nominee from all taxes, charges, expenses, assessments, claims and
liabilities (including counsel fees) incurred or assessed against it or by its
nominee 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. Custodian is authorized to charge any account of the
Corporation for such items. In the event of any advance of cash for any purpose
made by Custodian resulting from orders or instructions of the Corporation, or
in the event that Custodian 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 Corporation shall be
security therefore.
4
11. REPORTS BY CUSTODIAN
Custodian shall furnish the Corporation weekly with a statement
summarizing all transactions and entries for the account of Corporation.
Custodian shall furnish the Corporation at the end of every month with a list of
the portfolio securities showing the aggregate cost of each issue. Custodian
shall furnish the Corporation, at the close of each quarter of the Corporation's
fiscal year, with a list showing the cost of the securities held by it for the
corporation hereunder, adjusted for all commitments confirmed by the Corporation
as of such close, certified by a duly authorized officer of Custodian. The
books and records of Custodian pertaining to its actions under this Agreement
shall be open to inspection and audit at reasonable times by officers of, and of
auditors employed by, the Corporation.
12. TERMINATION OR ASSIGNMENT
This Agreement may be terminated by the Corporation, or by Custodian,
on sixty days' notice, given in writing and sent by registered mail to Custodian
at P. O. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or to the Corporation at ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be.
Upon any termination of this Agreement, pending appointment of a successor to
Custodian or a vote of the shareholders of the Corporation to dissolve or to
function without custodian of its cash, securities and other property, Custodian
shall not deliver cash, securities or other property of the Corporation to the
Corporation, but may deliver them to a bank or trust company in the City of
Milwaukee of its own selection, having an aggregate capital, surplus and
undivided profits, as shown by its last published report of not less than Two
Million Dollars ($2,000,000) as a Custodian for the Corporation to be held under
terms similar to those of this Agreement; provided, however, the Custodian shall
not be required to make any such delivery or payment until full payment shall
have been made by the Corporation of all liabilities constituting a charge on or
against the properties then held by Custodian or on or against Custodian, and
until full payment shall have been made to Custodian of all its fees,
compensation, costs and expenses, subject to the provisions of Section 10 of
this Agreement.
This Agreement may not be assigned by Custodian without the consent of
the Corporation, authorized or approved by a resolution of its Board of
Directors.
13. DEPOSITS OF SECURITIES IN SECURITIES DEPOSITORIES
No provision of this Agreement shall be deemed to prevent the use by
Custodian of a central securities clearing agency or securities depository;
provided, however, that Custodian and the central securities clearing agency or
securities depository meet all applicable federal and state laws and regulations
and the Board of Directors of the corporation approves by resolution the use of
such central securities clearing agency or securities depository.
14. RECORDS
To the extent that Custodian in any capacity prepares or maintains any
records required to be maintained and preserved by the Corporation pursuant to
the provisions of the Investment Company Act of 1940, as amended, or the rules
and regulations promulgated
5
thereunder, Custodian agrees to make any such records available to the
Corporation upon request and to preserve such records for the periods prescribed
in Rule 31a-2 under the Investment Company Act of 1940, as amended.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and their respective corporate seals to be affixed hereto as of the
date first above-written by their respective officers "hereunto duly authorized.
Executed in several counterparts, each of which is an original.
Attest: FIRST WISCONSIN TRUST COMPANY
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- -------------------------------------
ASSISTANT SECRETARY VICE PRESIDENT
▇▇▇▇▇▇▇▇ FUND, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
6