EXHIBIT 8
CUSTODIAN AGREEMENT
THIS AGREEMENT made on ____________, 1985, between BRANDYWINE
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 any two of the President, a Vice President, the Secretary,
and the 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 therefor, (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 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 therefor 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.
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 therefor.
11. Reports by Custodian
Custodian shall furnish the Corporation weekly with a statement
summarizing all transactions and entries for the account of the
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 X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxx 00000-0000, or to
the Corporation at X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxx 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 Corporation 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 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, that 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 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 thereunto duly authorized.
Executed in several counterparts, each of which is an original.
Attest: FIRST WISCONSIN TRUST COMPANY
_______________________________ By _______________________________
Attest: BRANDYWINE FUND, INC.
_________________________________ By _______________________________
