EXHIBIT 8
CUSTODIAN AGREEMENT
MIMLIC CASH FUND, INC.
BANKERS TRUST COMPANY
THIS AGREEMENT, made in duplicate this 8th day of May, 1987, by and between
MIMLIC Cash Fund, Inc., a Minnesota corporation (hereinafter called the "Fund"),
and Bankers Trust Company, a New York banking corporation with its principal
place of business at New York City, New York (hereinafter called the
"Custodian"),
WITNESSETH:
WHEREAS, the Fund desired that its securities and cash 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 of subscriptions, transferable shares,
investment contracts, voting trust certificates, certificates of deposit for a
security fractional or undivided interest 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, direction or
certification in writing, by wire, computer terminal, magnetic tape or other
mutually acceptable similar 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.
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 owned by 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 the Fund 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 the Fund, for the account of the
Fund, in the name of "MIMLIC Cash Fund, Inc., Custodian Account", in conformity
with the terms of this agreement. The Custodian shall make payments of cash for
the account of the Fund only:
(a) upon receipt in accordance with written orders from the Fund
stating that such cash is being used for one or more of the following
purposes, and specifying such purpose or purposes, provided, however, that
a reference in such written order to the pertinent paragraph or paragraphs
of this Article shall be sufficient compliance with this provision:
(i) the payment of interest;
(ii) the payment of dividends;
(iii) the payment of taxes;
(iv) the payment of the fees or charges of any investment
adviser of the Fund;
(v) the payment of fees to a Custodian, stock registrar,
transfer agent, or dividend disbursing agent for the
Fund;
(vi) the payment of distribution fees and commissions;
(vii) payment of any operating expenses, which shall be
deemed to include legal and accounting fees and all
other expenses not specifically referred to in this
paragraph (a);
(viii) payments to be made in connection with the conversion,
exchange or surrender of securities owned by the Fund;
(ix) payments on loans that may from time to time be due;
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(x) payment to a recognized and reputable broker for
securities purchased by the Fund through said broker
(whether or not including any regular brokerage fees,
charges or commissions on the transaction) upon receipt
by the Custodian of such securities in proper form for
transfer, after the receipt of a confirmation from the
broker or dealer with respect to the transaction;
(xi) payment to an issuer or its agent on a subscription for
securities of such issuer upon the exercise of rights
so to subscribe, against a receipt from such issuer or
agent for the cash so paid;
(b) as provided in Article 4 hereof, and
(c) upon the termination of this agreement.
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 said Custodian Account of the Fund.
ARTICLE 4. RECEIPT OF SECURITIES
The Fund agrees to place all of its securities in the custody of the
Custodian, but the Custodian shall not be under any obligation or duty to
determine whether all securities of the Fund 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 the Fund, 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
receive from persons other than the Fund and to hold for the account of the Fund
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 the Fund held by it in said Custodian Account
in the amounts provided and in the manner directed by, the written order from
the Fund.
The Custodian agrees that all securities of the Fund placed in its custody
shall be kept physically segregated at all times from those of 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.
Subject to such rules, regulations and orders as the Securities and
Exchange Commission may adopt, the Fund may direct the Custodian to deposit all
or any part of the securities owned by the Fund in a system for the central
handling of securities established by a national securities exchange or a
national securities association registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, or such other person as
may
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be permitted by the Commission, pursuant to which system all securities of any
particular class or series of any issuer deposited within the system are treated
as fungible and may be transferred or pledged by bookkeeping entry without
physical delivery of such securities, provided that all such deposits shall be
subject to withdrawal only at the direction of the Fund.
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;
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(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, 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 to be
made, declaring such purposes to be proper corporate purposes, and naming a
person or persons (each of whom shall be a properly bonded officer or
employee of the Fund) 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.
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 aforesaid
Custodian Account of the Fund 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
aforesaid Custodian Account of the Fund conditionally, subject to final
payment;
(c) hold for and credit to the account of the Fund 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 the Fund,
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 aforesaid Custodian Account (in its
own deposit department without liability for interest);
(e) charge against the aforesaid Custodian Account 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 re-issued
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 purpose against
interim receipts or other proper delivery receipts; and
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(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. The
Custodian shall maintain for the Fund all depository non-eligible securities in
such form so as to identify the Fund as the owner of such securities.
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 FOR PROCEEDS OF SECURITIES SOLD
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,
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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
or otherwise in accordance with standard applicable street practice in effect
from time to time.
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 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 the Fund as of the close of
business on the last business day of each quarter of the Fund's fiscal year.
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.
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;
and if no successor custodian is designated the Custodian shall, upon such
termination deliver all such assets to the Fund.
This agreement may be amended at any time by the mutual agreement of the
Fund and the Custodian.
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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.
ARTICLE 15. 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, conditions or
provision herein contained, this agreement and all of the covenants, conditions
and provisions hereof being intended to be, and being, 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 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 procedures herein set forth.
All notices and communications from the Custodian to the Fund shall be
addressed to MIMLIC Cash Fund, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, unless and until the Fund, in writing, directs the Fund
otherwise, in which event the last such written direction shall be controlling.
All notices and other communications from the Fund to the Custodian shall
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be addressed to Bankers Trust Company, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, unless and until the Custodian in writing direct the Fund otherwise in
which event the last such written direction shall be controlling.
The Custodian shall not be liable for any action taken in good faith upon
oral or written instructions of the Fund or 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 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 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 16. 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 17. 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.
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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 CASH FUND, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Assistant Secretary Its: Vice President
ATTEST: BANKERS TRUST COMPANY
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, V.P.
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