CUSTODIAN AGREEMENT
MIMLIC SERIES FUND, INC.
FIRST TRUST NATIONAL ASSOCIATION
THIS AGREEMENT, made in duplicate this 22nd day of February, 1993 by and
between MIMLIC Series Fund, Inc., a Minnesota corporation (hereinafter called
the "Fund"), and First Trust National Association, a national banking
association organized and existing under the laws of the United States of
America with its principal place of business at St. ▇▇▇▇, Minnesota (hereinafter
called the "Custodian").
WITNESSETH:
WHEREAS, the Fund, a "series" mutual fund having a number of separate
investment portfolios desires that the securities and cash of several of these
investment portfolios shall be hereafter held and administered by the 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:
ARTICLE 1. DEFINITIONS
The word "securities" as used herein shall be construed to include, without
being limited to, shares, stocks, treasury stocks, including any stocks of the
Fund, notes, bonds, debentures, evidences of indebtedness, certificates of
interest or participation in any profit-sharing agreements, collateral trust
certificates, reorganization certificates or subscriptions, transferable shares,
investment contracts, voting trust certificates, certificates of deposit for a
security, fractional or undivided interests in oil, gas, or other mineral
rights, or any certificates of interest or participation in, temporary or
interim certificates for, receipts for, guarantees of, or warrants or rights to
subscribe to or purchase any of the foregoing, acceptances and other
obligations, and any evidence of any right or interest in or to any property or
assets and any other interest or instrument commonly known as a security.
The words "written order from the Fund" shall mean a request or direction
or certification in writing, by wire, computer terminal, magnetic tape or other
mutually accepted means with or without a manual signature which the Custodian
in good faith believes to be genuine and to have been sent by the Fund. Any
such order in writing shall be signed in the name of the Fund by any two of the
individuals designated in the current certified list referred to in Article 2,
provided that one of the individuals so signing shall be an officer of the Fund
designated in said current certified list.
The word "Portfolio" shall mean one of the investment portfolios of the
Fund which is subject to the terms of this Agreement where its securities and
cash are held and administered by the Custodian. For the purpose of this
Agreement the following investment portfolios of the Fund are Portfolios subject
to the Agreement: Stock Portfolio, Index Portfolio, Managed Portfolio,
Aggressive Growth Portfolio and Small Company Portfolio.
ARTICLE 2. NAMES, TITLES AND SIGNATURES OF FUND'S OFFICERS
The Fund shall certify to the Custodian the names, titles and signatures of
officers and other persons who are authorized to give written or
oral orders to the Custodian on behalf of the Fund. The Fund agrees that
whenever any change in such authorization occurs it will file with the Custodian
a new certified list of names, titles and signatures which shall be signed by at
least one officer previously certified to the Custodian if any such officer
still holds an office in the Fund. The Custodian is authorized to rely and act
upon the names, titles and signatures of the individuals as they appear in the
most recent such certified list which has been delivered to the Custodian as
hereinbefore provided.
ARTICLE 3. RECEIPT AND DISBURSING OF MONEY
SECTION (1)
The Fund shall from time to time cause cash held by each Portfolio of the
Fund to be delivered or paid to the Custodian, but the Custodian shall not be
under any obligation or duty to determine whether all cash of such Portfolio is
being so deposited or to take any action or give any notice with respect to cash
not so deposited. The Custodian agrees to hold such cash, together with any
other sum collected or received by it for or on behalf of each Portfolio, for
the account of that Portfolio, in the name of "MIMLIC Series Fund, Inc.,
Custodian Account - Name of Portfolio," in conformity with the terms of this
Agreement. The Custodian shall make payments of cash for the account of each
Portfolio upon receipt of a written order from the Fund.
SECTION (2)
The Custodian is hereby appointed the attorney-in-fact of the Fund to
enforce and collect all checks, drafts or other orders for the payment of money
received by the Custodian for the account of the Fund and drawn to or to the
order of the Fund and to deposit them in the Custodian Account of the
appropriate Portfolios of the Fund.
ARTICLE 4. RECEIPT OF SECURITIES
The Fund agrees to place all of the securities of each Portfolio in the
custody of the Custodian, but the Custodian shall not be under any obligation or
duty to determine whether all securities of such Portfolio are being so
deposited or to require that they be so deposited, or to take any action or give
any notice with respect to the securities not so deposited. The Custodian
agrees to hold such securities for the account of each Portfolio, in the name of
the Fund or of bearer or of a nominee of the Custodian, and in conformity with
the terms of this Agreement. The Custodian also agrees, upon written order from
the Fund, to receipt from persons other than the Fund and to hold for the
account of the appropriate Portfolio securities specified in said written order,
and, if the same are in proper form, to cause payment to be made therefor to the
persons from whom such securities were received, from the funds of such
Portfolio held by it in the Custodian Account in the amounts provided and in the
manner directed by the written order from the Fund. The Custodian shall have no
power, or authority to assign, hypothecate, pledge or otherwise dispose of any
such securities and investments, except pursuant to a written order from the
Fund and only for the account of the Fund as set forth in Article 5 of this
Agreement.
The Custodian agrees that all securities of each Portfolio placed in its
custody shall be kept segregated in a separate account at all times from those
of the other Portfolios and any other person, firm or corporation, and shall be
held by the Custodian with all reasonable precautions for the safekeeping
thereof, with safeguards substantially equivalent to those maintained by the
Custodian for its own securities.
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ARTICLE 5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
The Custodian agrees to transfer, exchange or deliver securities as
provided in Article 6, or on receipt by it of, and in accordance with, a written
order from the Fund in which the Fund shall state specifically which of the
following cases is covered thereby, provided that it shall not be the
responsibility of the Custodian to determine the propriety or legality of any
such order:
(a) In the case of deliveries of securities sold by the Fund, against
receipt by the Custodian of the proceeds of sale and after receipt of a
confirmation from a broker or dealer with respect to the transaction;
(b) In the case of deliveries of securities which may mature or be called,
redeemed, retired or otherwise become payable, against receipt by the Custodian
of the sums payable thereon or against interim receipts or other proper delivery
receipts;
(c) In the case of deliveries of securities which are to be transferred to
and registered in the name of the Fund or of a nominee of the Custodian and
delivered to the Custodian for the account of the Fund, against receipt by the
Custodian of interim receipts or other proper delivery receipts;
(d) In the case of deliveries of securities to the issuer thereof, its
transfer agent or other proper agent, or to any committee or other organization
for exchange for other securities to be delivered to the Custodian in connection
with a reorganization or recapitalization of the issuer or any split-up or
similar transaction involving such securities, against receipt by the Custodian
of such other securities or against interim receipts or other proper delivery
receipts;
(e) In the case of deliveries of temporary certificates in exchange for
permanent certificates, against receipt by the Custodian of such permanent
certificates or against interim receipts or other proper delivery receipts;
(f) In the case of deliveries of securities upon conversion thereof into
other securities, against receipt by the Custodian of such other securities or
against interim receipts or other proper delivery receipts;
(g) In the case of deliveries of securities in exchange for other
securities (whether or not such transactions also involve the receipt or payment
of cash), against receipt by the Custodian of such other securities or against
interim receipts or other proper delivery receipts;
(h) In a case not covered by the preceding paragraphs of this article,
upon receipt of a resolution adopted by the Board of Directors of the Fund, or
any Executive Committee of such Board, signed by an officer of the Fund and
certified to by the Secretary, specifying the securities and assets to be
transferred, exchanged, or delivered, the purposes for which such delivery is
being made, declaring such purposes to be proper corporate purposes, and naming
a person or persons to whom such transfer, exchange or delivery is to be made;
and
(i) In the case of deliveries pursuant to paragraphs (a), (b), (c), (d),
(e), (f), and (g) above, the written order from the Fund shall direct that the
proceeds of any securities delivered, or securities or other assets exchanged
for or in lieu of securities so delivered, are to be delivered to the Custodian.
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ARTICLE 6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until the Custodian receives contrary written orders from the
Fund, the Custodian shall without order from the Fund:
(a) Present for payment all bills, notes, checks, drafts and similar
items, and all coupons or other income items (except stock dividends), held or
received for the account of the Fund, and which require presentation in the
ordinary course of business, and credit such items to the Custodian Accounts of
the appropriate Portfolios conditionally, subject to final payment;
(b) Present for payment all securities which may mature or be called,
redeemed, retired, or otherwise become payable and credit such items to the
Custodian Accounts of the appropriate Portfolios conditionally, subject to final
payment;
(c) Hold for and credit to the account of each Portfolio all shares of
stock and other securities received as stock dividends or as the result of a
stock split or otherwise from or on account of securities of such Portfolio, and
notify the Fund promptly of the receipt of such items;
(d) Deposit any cash received by it from, for or on behalf of the Fund to
the credit of the Fund in the Custodian Accounts of the appropriate Portfolios
(without liability for interest);
(e) Charge against the aforesaid Custodian Accounts for the Fund
disbursements authorized to be made by the Custodian hereunder and actually made
by it, and notify the Fund of such charges at least once a month;
(f) Deliver securities which are to be transferred to and reissued in the
name of the Fund, or of a nominee of the Custodian for the account of the Fund,
and temporary certificates which are to be exchanged for permanent certificates,
to a proper transfer agent for such purposes against interim receipts or other
proper delivery receipts; and
(g) Hold for disposition in accordance with written orders from the Fund
hereunder all options, rights and similar securities which may be received by
the Custodian and which are issued with respect to any securities held by it
hereunder, and notify the Fund promptly of the receipt of such items.
ARTICLE 7. DELIVERY OF PROXIES
The Custodian shall deliver promptly to the Fund all proxies, notices and
communications with relation to securities held by it which it may receive from
sources other than the Fund.
ARTICLE 8. TRANSFER
The Fund shall furnish to the Custodian appropriate instruments to enable
the Custodian to hold or deliver in proper form for transfer any securities
which it may hold for the account of the Fund. For the purpose of facilitating
the handling of securities, unless the Fund shall otherwise direct by written
order, the Custodian is authorized to hold securities deposited with it under
this Agreement in the name of its registered nominee or nominees (as defined in
the Internal Revenue Code and any Regulations of the United States Treasury
Department issued thereunder 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. In
consideration of Custodian's registration of any securities or other property in
the name of Custodian or its nominee or agent, Customer
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agrees to pay on demand to Custodian or to Custodian's nominee or agent the
amount of any loss or liability for stockholders assessments, or otherwise,
claimed or asserted against Custodian or Custodian's nominee or agent by reason
of such registration. Securities of the Fund which are held in nominee name
shall be identified as belonging to the Fund on the books and records of the
Custodian.
ARTICLE 9. TRANSFER TAXES AND OTHER DISBURSEMENTS
The Fund shall pay or reimburse the Custodian for any transfer taxes
payable upon transfers of securities made hereunder, including transfers
incident to the termination of this Agreement, and for all other necessary and
proper disbursements and expenses made or incurred by the Custodian in the
performance or incident to the termination of this Agreement, and the Custodian
shall have a lien upon any cash or securities held by it for the account of the
Fund for all such items, enforceable, after thirty days' written notice by
registered mail to the Fund, by the sale of sufficient securities to satisfy
such lien. The Custodian may reimburse itself by deducting from the proceeds of
any sale of securities an amount sufficient to pay any transfer taxes payable
upon the transfer of securities sold. The Custodian shall execute such
certificates in connection with securities delivered to it under this Agreement
as may be required, under the provisions of any federal revenue act and any
Regulations of the Treasury Department issued thereunder or any state laws, to
exempt from taxation any transfers and/or deliveries of any such securities as
may qualify for such exemption.
ARTICLE 10. CUSTODIAN'S LIABILITY
If the mode of payment for securities to be delivered by the Custodian is
not specified in the written order from the Fund directing such delivery, the
Custodian shall make delivery of such securities against receipt by it of cash,
a postal money order or a check drawn by a bank, trust company, or other banking
institution, or by a broker named in such written order from the Fund, for the
amount the Custodian is directed to receive. The Custodian shall be liable for
the proceeds of any delivery of securities made pursuant to this Article, but
provided that it has complied with the provisions of this Article, only to the
extent that such proceeds are actually received.
ARTICLE 11. CUSTODIAN'S REPORT
The Custodian shall furnish the Fund as of the close of business on the
last business day of each month a statement showing all cash transactions and
entries for the account of each Portfolio of the Fund. The books and records of
the Custodian pertaining to its actions as Custodian under this Agreement shall
be open to inspection and audit, at reasonable times, by officers of, and
auditors employed by, the Fund. The Custodian shall furnish the Fund with a
list of the securities held by it in custody for the account of each Portfolio
of the Fund as of the close of business on the last business day of each month.
ARTICLE 12. CUSTODIAN'S COMPENSATION
The Custodian shall be paid compensation at such rates and at such times as
may from time to time be agreed on in writing by the parties hereto, and the
Custodian shall have a lien for unpaid compensation, to the date of termination
of this Agreement, upon any cash or securities held by it for the account of the
Fund, enforceable in the manner specified in Article 9 hereof.
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ARTICLE 13. DURATION, TERMINATION AND AMENDMENT OF AGREEMENT
This Agreement shall remain in effect, as it may from time to time be
amended, until it shall have been terminated as hereinafter provided, but no
such alteration or termination shall affect or impair any rights or liabilities
arising out of any acts or omissions to act occurring prior to such amendment or
termination.
The Custodian may terminate this Agreement by giving the Fund ninety (90)
days' written notice of such termination by registered mail addressed to the
Fund at its principal place of business.
The Fund may terminate this Agreement by giving ninety (90) days' written
notice thereof delivered, together with a copy of the resolution of the Board of
Directors authorizing such termination and certified by the Secretary of the
Fund, by registered mail to the Custodian at its principal place of business.
Upon termination of this Agreement, the assets of the Fund held by the
Custodian shall be delivered by the Custodian to a successor custodian upon
receipt by the Custodian of a copy of the resolution of the Board of Directors
of the Fund, certified by the Secretary, designating the successor custodian.
Upon any termination of this Agreement, pending the appointment of a
successor custodian or a decision by the Fund to dissolve or to function without
a custodian of its cash, securities and other property, Custodian shall not
deliver the cash, securities and other property of the Fund to the Fund, but may
deliver them to a bank or trust company in the Cities of Minneapolis or St.
▇▇▇▇, Minnesota, of its own selection, having an aggregate capital, surplus and
undivided profits, as shown by its last published report, of not less than five
hundred thousand dollars ($500,000.00) 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 or Minnesota Mutual 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 12 of this Agreement.
This Agreement may be amended at any time by the mutual agreement of the
Fund and the Custodian.
This Agreement may not be assigned by the Custodian without the consent of
the Fund, authorized or approved by a resolution of its Board of Directors.
ARTICLE 14. SUCCESSOR CUSTODIAN
Any bank or trust company into which the Custodian or any successor
custodian may be merged or converted or with which it or any successor custodian
may be consolidated, or any bank or trust company resulting from any merger,
conversion or consolidation to which the Custodian or any successor custodian
shall be a party, or any bank or trust company succeeding to the business of the
Custodian, shall be and become the successor custodian without the execution of
any instrument or any further act on the part of the Fund or the Custodian or
any successor custodian.
Any such successor custodian shall have all the power, duties and
obligations of the preceding custodian under this Agreement and any amendments
thereof and shall succeed to all the exemptions and privileges of the preceding
custodian under this Agreement and any amendments thereof.
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ARTICLE 15. USE OF SUB-CUSTODIAN BANKS
Notwithstanding any provisions of this Agreement to the contrary, the
Custodian is authorized to make, from time to time, appropriate arrangements
with other banks selected by it for the custody by such banks of the Fund
securities in circumstances where direct custody of such securities by the
Custodian would be impracticable. Any bank so selected by the Custodian to act
as a sub-custodian shall have aggregate capital, surplus, and undivided profits,
as shown by its last published report, of not less than five hundred thousand
dollars ($500,000.00). For the purposes of this Agreement, any bank selected by
the Custodian to act as a sub-custodian for the Fund shall be deemed to be an
agent of the Custodian, and receipt and possession by such sub-custodian bank of
securities for the Fund shall constitute receipt and possession of such
securities by the Custodian. The account holdings of the Customer at such an
entity shall not include any assets of the Custodian other than assets held as a
fiduciary, Custodian or otherwise for Customers, and securities of the Fund
which are maintained in such an entity shall be identified as belonging to the
Fund on the books and records of the Custodian. The Custodian shall indemnify
the Fund for any losses arising from the negligence of any sub-custodian bank
selected by it. The Custodian shall promptly notify the Fund of its selection
of a bank to act as sub-custodian hereunder.
ARTICLE 16. USE OF DEPOSITORY
The Custodian may deposit all or any part of the securities owned by the
Fund in a (a) clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934 which acts
as a securities depository, or (b) the book-entry system as provided in Subpart
O of Treasury Circular ▇▇. ▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇ of ▇▇ ▇▇▇ ▇▇▇, and the
book-entry regulations of federal agencies substantially in the form of Subpart
O, (hereinafter referred to as "Depository") in accordance with the provisions
of Rule 17f-4 under the Investment Company Act of 1940, or the applicable
provisions of a comparable rule adopted by the Securities and Exchange
Commission, and this Agreement.
The Custodian shall establish, for the participation of each Portfolio of
the Fund, an account at the Depository which shall not include any assets held
by the Custodian other than as a fiduciary, custodian or otherwise for
customers. The Custodian shall send the Fund confirmation of any transfers to
or from the account of each such Portfolio of the Fund including those where the
transaction takes place by book entry at the Depository and shall identify
securities held by the Depository belonging to each such Portfolio of the Fund.
Upon request, the Custodian shall also provide the Fund with any report obtained
by the Custodian on the Depository's system of internal accounting control and
such reports on the Custodian's own system of internal accounting control as the
Fund may reasonably require. The Custodian shall indemnify the Fund for any
loss or damage resulting from the use of the Depository arising by reason of any
negligence, misfeasance or misconduct of the Custodian or its employees or
agents or from a failure of the Custodian to enforce effectively such rights as
it may have against the Depository.
ARTICLE 17. GENERAL
Nothing expressed or mentioned in or to be implied from any provisions of
this Agreement is intended to give or shall be construed to give any person or
corporation other than the parties hereto any legal or equitable right, remedy
or claim under or in respect of this Agreement or any covenant, condition or
provision herein contained, this Agreement and all of the covenants, conditions
and provisions hereof being intended to be, and being,
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for the sole and exclusive benefit of the parties hereto and their respective
successors and assigns.
It is the purpose and intention of the parties hereto that the Fund shall
retain all the power, rights and responsibilities of determining policy,
exercising discretion and making decisions with respect to the purchase, or
other acquisitions, and the sale, or other disposition, of all of its
securities, and that the duties and responsibilities of the Custodian hereunder
shall be limited to receiving and safeguarding the assets and securities of the
Fund and to delivering or disposing of them pursuant to the written order of the
Fund as aforesaid, and the Custodian shall have no authority, duty or
responsibility for the investment policy of each Portfolio of the Fund or for
any acts of the Fund in buying or otherwise acquiring, or in selling or
otherwise disposing of, any securities, except as hereinbefore specifically set
forth.
The Custodian shall in no case or event permit the withdrawal of any money
or securities of the Fund upon the mere receipt of any director, officer,
employee or agent of the Fund, but shall hold such money and securities for
disposition under the procedure herein set forth.
All notices and communications from the Custodian to the Fund shall be
addressed to MIMLIC Series Fund, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, unless and until the Fund, in writing, directs the Custodian
otherwise, in which event the last such written direction shall be controlling.
All notices and other communications from the Fund to the Custodian shall be
addressed to First Trust National Association, 4th Floor - Custody Window, and
delivered to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, unless and
until the Custodian in writing directs the Fund otherwise in which event the
last such written direction shall be controlling.
The Fund agrees to indemnify and hold harmless the Custodian and its
nominee from all taxes, charges, expenses, assessments, claims and liabilities
(including reasonable counsel fees) incurred or assessed against it or 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; provided, however, that the Custodian will give the Fund
reasonable opportunity to defend against such claim in the name of the Fund or
Custodian, or both. The 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 the Custodian resulting from orders or instructions of the Fund, or in the
event that the 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
therefor.
ARTICLE 18. LIABILITY OF CUSTODIAN
The Custodian shall not be liable for any action taken in good faith upon
oral or written instructions of the Fund or upon any written order 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 in good faith believes to
have been validly executed.
The Custodian shall be responsible for any loss of the physical property of
the Fund while deposited in the Fund account or accounts or otherwise in the
actual possession of Custodian, its officers, agents or employees. The
Custodian shall not be responsible to the Fund for any loss of the Fund's
securities caused by war, civil war, insurrection, military, naval or usurped
power, hurricane, cyclone, tornado, earthquake, volcanic eruption or
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other similar disturbance of nature. Custodian shall not be responsible to the
Fund for any loss of the Fund's securities in time of peace or war, directly or
indirectly caused by or resulting from the effects of nuclear fission or fusion
or radioactivity.
No loss shall excuse Custodian from any of its responsibilities under the
terms of this Agreement.
The Custodian shall also be responsible for any loss of the physical
property of the Fund while such physical property is in transit between the
banking premises of Custodian and any other place in the custody of an officer,
employee or agent of Custodian, or an armored motor vehicle company employed by
Custodian, provided Custodian has selected the means of transportation or
delivery used. Unless instructed otherwise pursuant to this Agreement by the
Fund, Custodian shall be the only party entitled to select the means of
transportation or delivery used.
The Custodian is to maintain in its own name bankers' blanket bond
insurance. Upon request from the Fund, Custodian shall provide the Fund with a
letter executed by an authorized officer of Custodian describing the insurance
then in force. If, at any time, such insurance is not satisfactory to the Fund,
the Fund may terminate this Agreement in accordance with its provisions.
Custodian's responsibilities under this Agreement shall in no way be limited by
the coverage limits of insurance carried by Custodian.
ARTICLE 19. INSTRUCTIONS TO CUSTODIAN
The Custodian may, when it deems it expedient, apply to the Fund, or to
counsel for the Fund, or to its own counsel, for instructions and advice; and
the Custodian shall not be liable for any action taken by it in accordance with
the written instructions or advice of the Fund or of counsel for the Fund.
ARTICLE 20. EFFECTIVE DATE
This Agreement shall become effective when it shall have been approved by
the Board of Directors of the Fund. The Fund shall transmit to the Custodian
promptly after such approval by said Board of Directors a copy of its resolution
embodying such approval, certified by the Secretary of the Fund.
IN WITNESS WHEREOF, the Fund and the Custodian have caused this Agreement
to be executed in duplicate as of the date first above written by their duly
authorized officers.
ATTEST: MIMLIC SERIES FUND, INC.
By
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Secretary Its
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ATTEST: FIRST TRUST NATIONAL ASSOCIATION
By
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Trust Officer Its
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