EXHIBIT 8.1
CUSTODIAN AGREEMENT
THIS AGREEMENT made on ____________, 1988, between XXXXXXXX BLUE
CHIP GROWTH FUND, INC., a Maryland Corporation (hereinafter called the
"Fund"), 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 Fund 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 Fund 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 Fund by
any two of the President, a Vice President, the Secretary and the
Treasurer of the Fund, or any other persons duly authorized to sign by the
Board of Directors of the Fund.
2. Names, Titles and Signatures of Fund's Officers
An officer of the Fund 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 Fund, 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 Fund. Custodian shall
make payments of cash to, or for the account of, the Fund from such cash
only (a) for the purchase of securities for the portfolio of the Fund upon
the delivery of such securities to Custodian, registered in the name of
the Fund 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 Fund 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 Fund 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 Fund. 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 Fund 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 Fund.
4. Receipt of Securities
Custodian shall hold in a separate account, and physically
segregated at all times from those of any other person, firms or
corporations, pursuant to the provisions hereof, all securities received
by it from or for the account of the Fund. All such securities are to be
held or disposed of by Custodian for, and subject at all times to the
instructions of, the Fund 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 Fund and only for the account of the Fund
as set forth in Section 5 of this Agreement.
5. Transfer, Exchange, Redelivery, etc. of Securities
Custodian shall have sole power to release or delivery any
securities of the Fund 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 Fund 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 rights 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 Fund 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 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 Fund 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 Fund which call for
payment upon presentation and hold the cash received by it upon such
payment for the account of the Fund; (b) collect interest and cash
dividends received, with notice to the Fund, for the account of the Fund;
(c) hold for the account of the Fund 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 Fund 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 Fund'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 Fund 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 Fund and which may
from time to time be registered in the name of the Fund.
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 Fund, 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
Fund), but without indicating the manner in which such proxies are to be
voted.
9. Transfer Tax and Other Disbursements
The Fund 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 Fund 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 Fund for such items. In the event of any
advance of cash for any purpose made by Custodian resulting from orders or
instructions of the Fund, 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 Fund shall be security
therefore.
11. Reports by Custodian
Custodian shall furnish the Fund weekly with a statement
summarizing all transactions and entries for the account of Fund.
Custodian shall furnish the Fund at the end of every month with a list of
the portfolio securities showing the aggregate cost of each issue.
Custodian shall furnish the Fund, at the close of each quarter of the
Fund's fiscal year, with a list showing the cost of the securities held by
it for the Fund hereunder, adjusted for all commitments confirmed by the
Fund 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 Fund.
12. Termination or Assignment
This Agreement may be terminated by the Fund, or by Custodian,
on sixty days' notice, given in writing and sent by registered mail to
Custodian at X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or to the Fund at
Wood Island, Third Floor, 00 Xxxx Xxx Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, 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 Fund to dissolve or to function without a
custodian of its cash, securities and other property, Custodian shall not
deliver cash, securities or other property of the Fund to the Fund, 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 Fund to be held under
terms similar to those of this Agreement; provided, however, that
Custodian 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 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 Fund, 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 Fund 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 Fund
pursuant to the provisions of the Investment Company Act of 1940, as
amended, or the rules and regulations promulgated thereunder, Custodian
agrees to make any such records available to the Fund 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 thereunto duly authorized.
Executed in several counterparts, each of which is an original.
Attest: FIRST WISCONSIN TRUST COMPANY
_________________________________ By _________________________________
ASSISTANT SECRETARY VICE PRESIDENT
Attest: XXXXXXXX BLUE CHIP GROWTH
FUND, INC.
_________________________________ By _________________________________
