CUSTODIAN CONTRACT
between
MIMLIC International Balanced Fund, Inc.
and
NORWEST BANK MINNESOTA, N.A.
TABLE OF CONTENTS
PAGE
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1. Employment of Bank and Property to be Held by It . . . . . 1
2. Duties of the Bank with Respect to Property of
the Fund Held by the Bank. . . . . . . . . . . . . . . . . 1
2.1 Holding Securities. . . . . . . . . . . . . . . . . . 1
2.2 Delivery of Securities. . . . . . . . . . . . . . . . 2
2.3 Registration of Securities. . . . . . . . . . . . . . 5
2.4 Bank Accounts . . . . . . . . . . . . . . . . . . . . 5
2.5 Payments for Shares . . . . . . . . . . . . . . . . . 6
2.6 Availability of Federal Funds . . . . . . . . . . . . 6
2.7 Collection of Income. . . . . . . . . . . . . . . . . 6
2.8 Payment of Fund Monies. . . . . . . . . . . . . . . . 7
2.9 Liability for Payment in Advance of Receipt of
Securities Purchased . . . . . . . . . . . . . . . . 8
2.10 Payments for Repurchases or Redemptions of Shares
of the Fund . . . . . . . . . . . . . . . . . . . . . 8
2.11 Appointment of Agents . . . . . . . . . . . . . . . . 9
2.12 Deposit of Fund Assets in Securities System . . . . . 9
2.13 Segregated Account. . . . . . . . . . . . . . . . . . 11
2.14 Ownership Certificates for Tax Purposes . . . . . . . 11
2.15 Proxies . . . . . . . . . . . . . . . . . . . . . . . 12
2.16 Communications Relating to Fund Portfolio
Securities. . . . . . . . . . . . . . . . . . . . . . 12
2.17 Proper Instructions . . . . . . . . . . . . . . . . . 12
2.18 Actions Permitted Without Express Authority . . . . . 13
2.19 Evidence of Authority . . . . . . . . . . . . . . . . 13
3. Duties of Bank With Respect to the Books of Account
and Calculation of Net Asset Value and Net Income. . . . . 14
4. Records. . . . . . . . . . . . . . . . . . . . . . . . . . 14
5. Opinion of Fund's Independent Accountants. . . . . . . . . 15
6. Reports to Fund by Independent Public Accountants. . . . . 15
7. Compensation of Bank . . . . . . . . . . . . . . . . . . . 15
8. Responsibility of Bank . . . . . . . . . . . . . . . . . . 16
9. Effective Period, Termination and Amendment. . . . . . . . 17
10. Successor Bank . . . . . . . . . . . . . . . . . . . . . . 17
11. Interpretive and Additional Provisions . . . . . . . . . . 18
12. Minnesota Law to Apply . . . . . . . . . . . . . . . . . . 19
13. Prior Contracts . . . . . . . . . . . . . . . . . . . . . 19
14. Fee Schedule. . . . . . . . . . . . . . . . . . . . . . . 21
CUSTODIAN CONTRACT
This Contract between MIMLIC International Balanced Fund, Inc., a
corporation organized and existing under the laws of Minnesota, having its
principal place of business at 000 Xxxxx Xxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx
00000, hereinafter called the "Fund", and Norwest Bank Minnesota, N.A., a
National Banking Association, having its principal place of business at Sixth
and Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, hereinafter called the "Bank",
WITNESSETH, that in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT OF BANK AND PROPERTY TO BE HELD BY IT
The Fund hereby employs the Bank as the fund accountant and custodian of
its assets pursuant to the provisions of the Articles of Incorporation. The
Fund agrees to deliver to the Bank all securities and cash owned by it, and
all payments of income, payments of principal or capital distributions
received by it with respect to all securities owned by the Fund from time to
time, and the cash consideration received by it for such new or treasury
shares of capital stock ("Shares") of the Fund as may be issued or sold from
time to time. The Bank shall not be responsible for any property of the Fund
held or received by the Fund and not delivered to the Bank.
Upon receipt of "Proper Instructions" (within the meaning of Section 2.17),
the Bank shall from time to time employ one or more sub-custodians, but only in
accordance with an applicable vote by the Board of Directors of the Fund, and
provided that the Bank shall have no more or less responsibility or liability to
the Fund on account of any actions or omissions of any sub-custodian so employed
than any such sub-custodian has to the Bank.
2. DUTIES OF THE BANK WITH RESPECT TO PROPERTY OF THE FUND HELD BY THE BANK
2.1 HOLDING SECURITIES.
The Bank shall hold and physically segregate for the account of the Fund
all non-cash property, including all securities owned by the Fund, other than
(a) securities which are maintained pursuant to Section 2.12 in a clearing
agency which acts as a securities depository or in a book-entry system
authorized by the U.S. Department of the Treasury, collectively referred to
herein as a "Securities System".
2.2 DELIVERY OF SECURITIES.
The Bank shall release and deliver securities owned by the Fund held by the
Bank or in a Securities System account of the Bank only upon receipt of
Proper Instructions, which may be continuing instructions when deemed
appropriate by the parties, and only in the following cases:
1) Upon sale of such securities for the account of the Fund and receipt of
payment therefor;
2) Upon the receipt of payment in connection with any repurchase agreement
related to such securities entered into by the Fund:
3) In the case of a sale effected through a Securities System, in
accordance with the provisions of Section 2.12 hereof;
4) To the depository agent in connection with tender or other similar
offers for portfolio securities of the Fund;
5) To the issuer thereof or its agent when such securities are called,
redeemed, retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be delivered to the
Bank;
6) To the issuer thereof, or its agent, for transfer into the name of the
Fund or into the name of any nominee or nominees of the Bank or into the
name or nominee name of any agent appointed pursuant to Section 2.11 or
into the name or nominee name of any subcustodian appointed pursuant to
Article 1; or for exchange for a different
number of bonds, certificates or other evidence representing the same
aggregate face amount or number of units; PROVIDED that, in any such
case, the new securities are to be delivered to the Bank;
7) Upon the sale of such securities for the account of the Fund, to the
broker or its clearing agent, against a receipt, for examination in
accordance with "street delivery" custom; provided that in any such
case, the Bank shall have no responsibility or liability for any loss
arising from the delivery of such securities prior to receiving payment
for such securities except as may arise from the Bank's own negligence
or willful misconduct;
8) For exchange or conversion pursuant to any plan or merger,
consolidation, recapitalization, reorganization or readjustment of the
securities of the issuer of such securities, or pursuant to provisions
for conversion contained in such securities, or pursuant to any deposit
agreement; provided that, in any such case, the new securities and
cash, if any, are to be delivered to the Bank;
9) In the case of warrants, rights or similar securities, the surrender
thereof in the exercise of such warrants, rights or similar securities
or the surrender of interim receipts of temporary securities for
definitive securities; provided that, in any such case, the new
securities and cash, if any, are to be delivered to the Bank;
10) For delivery in connection with any loans of securities made by the
Fund, BUT ONLY against receipt of adequate collateral as agreed upon
from time to time by the Bank and the Fund, which may be in the form
of cash or obligations issued by the United States government, its
agencies or instrumentalities, except that in connection with any
loans for which collateral is to be credited to the Bank's account
in the book-entry system authorized by the U.S. Department of the
Treasury, the Bank will not be held liable or responsible for the
delivery of securities owned by the Fund prior to
the receipt of such collateral;
11) For delivery as security in connection with any borrowings by the Fund
requiring a pledge of assets by the Fund, BUT ONLY against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of any agreement among
the Fund, the Bank and a broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a member of the National
Association of Securities Dealers, Inc. ("NASD"), relating to the
compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other arrangements
in connection with transactions by the Fund;
13) For delivery in accordance with the provisions of any agreement among
the Fund, the Bank, and a Futures Commission Merchant registered under
the Commodity Exchange Act, relating to compliance with the rules of
the Commodity Futures Trading Commission and/or any Contract Market, or
any similar organization or organizations, regarding account deposits
in connection with transactions by the Fund;
14) Upon receipt of instructions from the transfer agent ("Transfer
Agent") for the Fund, for delivery to such Transfer Agent or to the
holders of shares in connection with distributions in kind, as may be
described from time to time in the Fund's currently effective
prospectus and statement of additional information ("prospectus"), in
satisfaction of requests by holders of Shares for repurchase or
redemptions; and
15) For any other proper corporate purpose, BUT ONLY upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution of
the Board of Directors or of the Executive Committee signed by an
officer of the Fund and certified by the Secretary or an Assistant
Secretary, specifying the securities to the 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.
2.3 REGISTRATION OF SECURITIES.
Securities held by the Bank (other than bearer securities) shall be
registered in the name of the Fund or in the name of any nominee of the Fund or
of any nominee of the Bank which nominee shall be assigned exclusively to the
Fund, UNLESS the Fund has authorized in writing the appointment of a nominee to
be used in common with other registered investment companies having the same
investment adviser as the Fund, or in the name of nominee name of any agent
appointed pursuant to Section 2.1 1 or in the name or nominee name of any sub-
custodian appointed pursuant to Article 1. All securities accepted by the Bank
on behalf of the Fund under the terms of this Contract shall be in "street name"
or other good delivery form.
2.4 BANK ACCOUNts.
The Bank shall open and maintain a separate bank account or accounts in the
name of the Fund, subject only to draft or order by the Bank acting pursuant to
the terms of this Contract, and 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, other than cash maintained by the Fund in a bank account established and
used in accordance with Rule 17f-3 under the Investment Company Act of 1940.
Funds held by the Bank for the Fund may be deposited by it to its credit as Bank
in the Banking Department of the Bank or in such other banks or trust companies
as it may in its discretion deem necessary or desirable; PROVIDED, however, that
every such bank or trust company shall be qualified to act as a custodian under
the Investment Company Act of 1940 and that each such bank or trust company and
the funds to be deposited with each such bank or trust company shall be approved
by vote of a majority of the Board of Directors of the Fund. Such funds shall
be deposited by the Bank in its capacity as Bank and shall be withdrawable by
the Bank only in that capacity.
2.5 PAYMENTS FOR SHARES.
The Bank shall receive from the distributor for the Fund's Shares or from
the Transfer Agent of the Fund and deposit into the Fund's account such payments
as are received for Shares of the Fund issued or sold from time to time by the
Fund. The Bank will provide timely notification to the Fund and the Transfer
Agent of any receipt by it of payments for Shares of the Fund.
2.6 AVAILABILITY OF FEDERAL FUNDS.
Upon mutual agreement between the Fund and the Bank, the Bank shall, upon
the receipt of Proper Instructions, make federal funds available to the Fund as
of specified times agreed upon from time to time by the Fund and the Bank in the
amount of checks received in payment for Shares of the Fund which are deposited
into the Fund's account.
2.7 COLLECTION OF INCOME.
The Bank shall collect on a timely basis all income and other payments
with respect to registered securities held hereunder to which the Fund shall
be entitled either by law or pursuant to custom in the securities business,
and shall collect an a timely basis all income and other payments with
respect to bearer securities if, on the date of payment by the issuer, such
securities are held by the Bank or its agent thereof and shall credit such
income, as collected, to the Fund's custodian account. Without limiting the
generality of the foregoing, the Bank shall detach and present for payment
all coupons and other income items requiring presentation as and when they
become due and shall collect interest when due on securities held hereunder.
Income due the Fund on securities loaned pursuant to the provisions of
Section 2.2 (10) shall be the responsibility of the Fund. The Bank will have
no duty or responsibility in connection therewith, other than to provide the
Fund with such information or data as may be necessary to assist the Fund in
arranging for the timely delivery to the Bank of the income to which the Fund
is properly entitled.
2.8 PAYMENT OF FUND MONIES.
Upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, the Bank shall pay out
monies of the fund in the following cases only:
1) Upon the purchase of securities, options, futures contracts or
options on futures contracts for the account of the Fund but only (a)
against the delivery of such securities or evidence of title to such
options, futures contracts or options on futures contracts, to the
Bank (or any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the Investment
Company Act of 1940 to act as a custodian and has been designated by
the Bank as its agent for this purpose) registered in the name of the
Fund or in the name of a nominee of the Bank referred to in Section
2.3 hereof or in proper form for transfer; (b) in the case of a
purchase effected through a Securities System, in accordance with the
conditions set forth in Section 2.12 hereof or (c) in the case of the
repurchase agreements entered into between the Fund and the Bank, or
another bank, or a broker-dealer which is a member of NASD, (i)
against delivery of the securities either in certificate form or
through an entry crediting the Bank's account at the Federal Reserve
Bank with such securities or (ii) against delivery of the receipt
evidencing purchase by the Fund of securities owned by the Bank along
with written evidence of the agreement by the Bank to repurchase such
securities from the Fund;
2) In connection with conversion, exchange or surrender of securities owned
by the Fund as set forth in Section 2.2 hereof;
3) For the redemption or repurchase of Shares issued by the Fund as set
forth in Section
2.10 hereof;
4) For the payment of any expense or liability incurred by the Fund,
including but not limited to the following payments for the account of
the Fund: interest, taxes, management, accounting, transfer agent and
legal fees, and operating expenses of the
Fund whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) For the payment of any dividends declared pursuant to the governing
documents of the Fund;
6) For payment of the amount of dividends received in respect of securities
sold short;
7) For any other proper purpose, BUT ONLY upon receipt of, in addition to
Proper Instructions, a certified copy of a resolution of the Board of
Directors or of the Executive Committee of the Fund signed by an officer
of the Fund and certified by its Secretary or an Assistant Secretary,
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
purpose, and naming the person or persons to whom such payment is to be
made.
2.9 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES PURCHASED.
In any and every case where payment for purchase of securities for the
account of the Fund is made by the Bank in advance of receipt of the
securities purchased in the absence of specific written instructions from the
Fund to so pay in advance, the Bank shall be absolutely liable to the Fund
for such securities to the same extent as if the securities had been received
by the Bank.
2.10 PAYMENTS FOR REPURCHASES OR REDEMPTIONS OF SHARES OF THE FUND.
From such funds as may be available for the purpose but subject
to the limitations of the Articles of Incorporation and any applicable
votes of the Board of Directors of the Fund pursuant thereto, the Bank
shall, upon receipt of instructions from the Transfer Agent, make
funds available for payment to holders of Shares who have delivered to
the Transfer Agent a request for redemption or repurchase of their
Shares. In connection with the redemption or repurchase of Shares of
the fund, the Bank is authorized upon receipt of instructions from the
Transfer agent to
wire funds to or through a commercial bank designated by the redeeming
shareholders. In connection with the redemption or repurchase of
Shares of the Fund, the Bank shall honor checks drawn on the Bank by a
holder of Shares, which checks have been furnished by the Fund to the
holder of Shares, when presented to the Bank in accordance with such
procedures and controls as are mutually agreed upon from time to time
between the Fund and the Bank.
2.11 APPOINTMENT OF AGENTS.
The Bank may at any time or times in its discretion appoint (and
may at any time remove) any other bank or trust company which is
itself qualified under the Investment Company Act of 1940 to act as a
custodian, as its agent to carry out such of the provisions of this
Article 2 as the Bank may from time to time direct; PROVIDED, however,
that the appointment of any agent shall not relieve the Bank of its
responsibilities or liabilities hereunder.
2.12 DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEMS.
The Bank may deposit and/or maintain securities owned by the Fund
in a clearing agency registered with the Securities and Exchange
commission under Section 17A of the Exchange Act, which acts as a
securities depository, or in the book-entry system authorized by the
U.S. Department of the Treasury and certain federal agencies,
collectively referred to herein as "Securities System" in accordance
with applicable Federal Reserve Board and Securities and Exchange
Commission rules and regulations, if any, and subject to the following
provisions:
1) The Bank may keep securities of the Fund in a Securities System
provided that such securities are represented in an account
("Account") of the Bank in the Securities System which shall
not include any assets of the Bank other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of the Bank with respect to securities of the Fund which are
maintained in a Securities System shall identify by book-entry those
securities belonging to the
Fund;
3) The Bank shall pay for securities purchased for the account of the Fund
upon (i) receipt of advice from the Securities System that such
securities have been transferred to the Account, and (ii) the
making of an entry on the records of the Bank to reflect such payment
and transfer for the account of the Fund. The Bank shall transfer
securities sold for the account of the Fund upon (i) receipt of
advice from the Securities System that payment for such securities has
been transferred to the Account, and (ii) the making of an entry on the
records of the Bank to reflect such transfer and payment for the account
of the Fund. Copies of all advises from the Securities System of
transfers of securities for the account of the Fund shall identify the
Fund, be maintained for the Fund by the Bank and be provided to the Fund
at its request. Upon request, the Bank shall furnish the Fund
confirmation of each transfer to or from the account of the Fund in the
form of a written advice or notice and shall furnish to the Fund copies
of daily transaction sheets reflecting each day's transactions in the
Securities System for the account of the Fund.
4) The Bank shall provide the Fund with any report obtained by the Bank on
the Securities System's accounting system, internal accounting control
and procedures for safeguarding securities deposited in the Securities
System;
5) The Bank shall have received the initial or annual certificate, as the
case may be, required by Article 9 hereof;
6) Anything to the contrary in this Contract notwithstanding, the Bank
shall be liable to the Fund for any loss or damage to the Fund resulting
from use of the Securities System by reason of any negligence,
misfeasance or misconduct of the Bank or any of its agents or of any of
its or their employees or from failure of the Bank or any such agent to
enforce effectively such rights as it may have against the Securities
System; at the election of the Fund, it shall be entitled to be
subrogated to the rights
of the Bank with respect to any claim against the Securities System
or any other person which the Bank may have as a consequence of any
such loss or damage if and to the extent that the Fund has not been
made whole for any such loss or damage.
2.13 SEGREGATED ACCOUNT.
The Bank shall upon receipt of Proper Instructions establish and
maintain a segregated account or accounts for and on behalf of the
Fund, into which account or accounts may be transferred cash and/or
securities, including securities maintained in an account by the Bank
pursuant to Section 2.12 hereof, (i) in accordance with the provisions
of any agreement among the Fund, the Bank and a broker-dealer
registered under the Exchange Act and a member of NASD (or any futures
commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities exchange (or the
Commodity Futures Trading Commission or any registered contract
market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the
Fund, (ii) for the purpose of segregating cash or government
securities in connection with options purchased, sold or written by
the Fund or commodity futures contracts or options thereon purchased
or sold by the Fund, (iii) for the purpose of compliance by the Fund
with the procedures required by Investment Company Act Release No.
10666, or any subsequent release or releases of the Securities and
Exchange Commission relating to the maintenance of segregated accounts
by registered investment companies and (iv) for other proper corporate
purposes, BUT ONLY, in the case of the clause (iv), upon receipt of,
in addition to Proper Instructions, a certified copy of a resolution
of the Board of Directors or of the Executive Committee signed by an
officer of the Fund and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such segregated
account and declaring such purposes to be proper corporate purposes.
2.14 OWNERSHIP CERTIFICATES FOR TAX PURPOSES.
The Bank shall execute ownership and other certificates and
affidavits for all federal and state tax purposes in connection with
receipt of income or other payments with respect to securities of the
Fund held by it and in connection with transfers of securities.
2.15 PROXIES.
The Bank shall, with respect to the securities held hereunder, cause to be
promptly executed by the registered holder of such securities, if the securities
are registered otherwise than in the name of the Fund or a nominee of the Fund,
all proxies, without indication of the manner in which such proxies are to be
voted, and shall promptly deliver to the Fund such proxies, all proxy soliciting
materials and all notices relating to such securities.
2.16 COMMUNICATIONS RELATING TO FUND PORTFOLIO SECURITIES.
The Bank shall transmit promptly to the Fund all written information
(including, without limitation, pendency of calls and maturities of securities
and expirations of rights in connection therewith and notices of exercise of
call and put options written by the Fund and the maturity of futures contracts
purchased or sold by the Fund) received by the Bank from issuers of the
securities being held for the Fund. With respect to tender or exchange offers,
the Bank shall transmit promptly to the Fund all written information received by
the Bank from issuers of the securities whose tender or exchange is sought and
from the party (or his agents) making the tender or exchange offer. If the fund
desires to take action with respect to any tender offer, exchange offer or any
other similar transaction, the Fund shall notify the Bank at least three
business days prior to the date on which the Bank is to take such action.
2.17 PROPER INSTRUCTIONS.
Proper Instructions as used throughout this Article 2 means a writing
signed or initialed by one or more person or persons as the Board of Directors
shall have from time to time authorized. Each such writing shall set forth the
specific transaction or type of transaction involved, including a specific
statement of the purpose for which such action is requested. Oral instructions
will be considered Proper Instructions if the Bank reasonably believes them to
have been given by a person authorized to give such instructions with respect to
the transaction
involved. The Fund shall cause all oral instructions to be confirmed
in writing. Upon receipt of a certificate of the Secretary or an
Assistant Secretary as to the authorization by the Board of Directors
of the Fund accompanied by a detailed description of procedures
approved by the Board of Directors, Proper Instructions may include
communications effected directly between electromechanical or
electronic devices provided that the Board of Directors and the Bank
are satisfied that such procedures afford adequate safeguards for the
Fund's assets.
2.18 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY.
The Bank may in its discretion, without express authority from the Fund;
1) Make payments to itself or others for minor expenses of handling
securities PROVIDED that all such payments shall be accounted for
to the Fund;
2) Surrender securities in temporary form for securities in definitive
form;
3) Endorse for collection, in the name of the Fund, checks, drafts and
other negotiable instruments; and
4) In general,. attend to all non-discretionary details in connection with
the sale, exchange, substitution, purchase, transfer and other dealings
with the securities and property of the Fund except as otherwise
directed by the Board of Directors of the Fund.
2.19 EVIDENCE OF AUTHORITY.
The Bank shall be protected in acting upon any instructions,
notice, request, consent, certificate or other instrument of paper
believed by it to be genuine and to have been properly executed by or
on behalf of the Fund. The Bank may receive and accept a certified
copy of a vote of the Board of Directors of the Fund as conclusive
evidence (a) of the authority of any person to act in accordance with
such vote or (b) or any determination or of any action by the Board of
Directors pursuant to the Articles of Incorporation as described in
such vote, and such vote may be considered as in full force and effect
until receipt by the Bank of written notice to
the contrary. 2.20 CLASS ACTIONS. The Bank shall transmit promptly to
the Fund all notices or other communications received by it in
connection with any class action lawsuit relating to securities
currently or previously held for the Fund. Upon being directed by the
Fund to do so, the Bank shall furnish to the Fund any and all written
materials which establish the holding/ownership, amount held/owned,
and period of holding/ownership of the securities in question.
3. DUTIES OF BANK WITH RESPECT TO THE BOOKS OF ACCOUNT AND CALCULATION OF NET
ASSET VALUE AND NET INCOME.
The Bank shall cooperate with and supply necessary information to
the entity or entities appointed by the Board of Directors of the Fund
to keep the books of account of the Fund and/or compute the net asset
value per share of the outstanding shares of the Fund or, if directed
in writing to do so by the Fund, shall itself keep such books of
account and/or compute such net asset value per share. If so
directed, the Bank shall also calculate daily the net income of the
Fund as described in the Fund's currently effective prospectus and
shall advise the Fund and the Transfer Agent daily of the total
amounts of such net income and, if instructed in writing by an officer
of the Fund to do so, shall advise the Transfer Agent periodically of
the division of such net income among its various components. The
calculations of the net asset value per share and the daily income of
the Fund shall be made at the time or times described from time to
time in the Fund's currently effective prospectus.
4. RECORDS.
The Bank shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will
meet the obligations of the Fund under the Investment Company Act of
1940, with particular attention to Section 31 thereof and Rule 31 a- 1
and 31 a-2 thereunder, applicable federal and state tax laws and any
other law or administrative rules or procedures which may be
applicable to the Fund. All such records shall be the property of the
Fund and shall at all times during the regular business hours of the
Bank
be open for inspection by duly authority officers, employees or agents
of the Fund and employees and agents of the Securities and Exchange
Commission. The Bank shall, at the Fund's request, supply the Fund
with a tabulation of securities owned by the Fund and held by the Bank
and shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the Bank,
include certificate numbers in such tabulations.
5. OPINION OF FUND'S INDEPENDENT ACCOUNTANT
The Bank shall take all reasonable action, as the Fund may from
time to time request, to obtain from year to year favorable opinions
from the Fund's independent accountants with respect to its activities
hereunder in connection with the preparation of the Fund's, Form N- 1
A, and Form NSAR or other annual reports to the Securities and
Exchange Commission and with respect to any other requirements of such
Commission.
6. REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS
The Bank shall provide the Fund, at such times as the Fund may reasonably
require, with reports by independent public accountants on the accounting
system, internal accounting control and procedures for safeguarding securities,
futures contracts and options on futures contracts, including securities
deposited and/or maintained in a Securities System, relating to the services
provided by the Bank under this Contract; such reports shall be of sufficient
scope, and in sufficient detail, as may reasonably be required by the Fund to
provide reasonable assurance that any material inadequacies would be disclosed
by such examination, and, if there are no such inadequacies, the reports shall
so state.
7. COMPENSATION OF BANK
For performance by the Bank pursuant to this Agreement, the Fund agrees to
pay the Bank annual asset fees and supplemental charges as set out in the fee
schedule attached hereto. The fee schedule shall be guaranteed for service
performed and expense incurred through March
31, 1995. Subsequent to March 31, 1995, such fees and supplemental
charges may be changed from time to time subject to mutual written
agreement between the Fund and the Bank.
8. RESPONSIBILITY OF BANK
So long as and to the extent that it is in the exercise of reasonable
care, the Bank shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Contract and shall be held harmless in
acting upon any notice, request, consent, certificate or other instrument
reasonably believed by it to be genuine and to be signed by the proper party
or parties. The Bank shall be held to the exercise of reasonable care in
carrying out the provisions of this Contract, but shall be kept indemnified
by and shall be without liability to the Fund for any action taken or omitted
by it without negligence. It shall be entitled to rely an and may act upon
advice of counsel (who may be counsel for the Fund) on all matters, and shall
be without liability for any action reasonably taken or omitted pursuant to
such advice. Notwithstanding the foregoing, the responsibility of the Bank
with respect to redemptions effected by check shall be in accordance with a
separate Agreement entered into between the Bank and the Fund.
If the Fund requires the Bank to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of the Bank, result in the Bank or its nominee assigned to the Fund
being liable for the payment of money or incurring liability of some other form,
the Fund, as a prerequisite to requiring the Bank to take such action, shall.
provide indemnity to the Bank in an amount and form satisfactory to it.
If the Fund requires the Bank to advance cash or securities for
any purpose or in the event that the Bank or its nominee shall incur
or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Contract,
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 and should the
Fund fail to repay the Bank promptly, the Bank shall be entitled to
utilize available cash and to dispose of Fund assets to the extent
necessary to obtain reimbursement.
9. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
The Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter
provided, may be amended at any time by mutual agreement of the
parties hereto and may be terminated by either party by an instrument
in writing delivered or mailed, postage prepaid to the other party,
such termination to take effect not sooner than sixty (60) days after
the date of such delivery or mailing; PROVIDED, however, that the Bank
shall not act under Section 2.1 2 hereof in the absence of receipt of
an initial certificate of the Secretary or an Assistant Secretary that
the Board of Directors of the Fund has approved the initial use of a
particular Securities System and the receipt of an annual certificate
of the Secretary or an Assistant Secretary that the Board of Directors
has reviewed the use by the Fund of such Securities System, as
required in each case by Rule 17f-4 under the Investment Company Act
of 1940, PROVIDED FURTHER, however, that the Fund shall not amend or
terminate this Contract in contravention of any applicable federal or
state regulations, or any provision of the Articles of Incorporation,
and further provided, that the Fund may at any time be action of its
Board of Directors (i) substitute another bank or trust company for
the Bank by giving notice as described above to the Bank, or (ii)
immediately terminate this Contract in the event of the appointment of
a conservator or receiver for the Bank by the Comptroller of the
Currency or upon the happening of a like event at the direction of an
appropriate regulatory agency or court of competent jurisdiction.
Upon termination of the Contract, the Fund shall pay to the Bank such
compensation as may be due as of the date of such termination and shall likewise
reimburse the Bank for its costs, expenses and disbursements.
10. SUCCESSOR BANK
If a successor custodian shall be appointed by the Board of Directors of
the Fund, the Bank shall, upon termination, deliver to such successor custodian
at the office of the Bank, duly endorsed and in the form for transfer to an
account of the successor custodian all of the Fund's securities held in a
Securities System.
If no such successor custodian shall be appointed, the Bank shall, in like
manner, upon receipt of a certified copy of a vote of the Board of Directors of
the Fund, deliver at the office of the Bank and transfer such securities, funds
and other properties in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Directors shall have been delivered to
the Bank on or before the date when such termination shall become effective,
then the Bank shall have the right to deliver to a bank or trust company, which
is a "bank" as defined in the Investment Company Act of 1940, of its own
selection, having an aggregate capital, surplus, and undivided profits, as shown
by its last published report, or not less than $25,000,000, all securities,
funds and other properties held by the Bank and all instruments held by the Bank
relative thereto and all other property held by it under this Contract and to
transfer to an account of such successor custodian all of the Fund's securities
held in any Securities System. Thereafter, such bank or trust company shall be
the successor of the Bank under this Contract.
In the event that securities, funds and other properties remain in the
possession of the Bank after the date of termination hereof owing to failure of
the Fund to procure the certified copy of the vote referred to or of the Board
of Directors to appoint a successor custodian, the Bank shall be entitled to
fair compensation for its services during such period as the Bank retains
possession of such securities, Funds and other properties and the provisions of
this Contract relating to the duties and obligations of the Bank shall remain in
full force and effect.
11. INTERPRETIVE AND ADDITIONAL PROVISIONS.
In connection with the operation of this Contract, the Bank and the Fund
may from time
to time agree on such provisions interpretive of or in addition to the
provisions of this Contract as may in their joint opinion be
consistent with the general tenor of this Contract. Any such
interpretive or additional provisions shall be in a writing signed by
both parties and shall be annexed hereto, PROVIDED that no such
interpretive or additional provisions shall contravene any applicable
federal or state regulations or any provision of the Articles of
Incorporation of the Fund. No interpretive or additional provisions
made as provided in the preceding sentence shall be deemed to be an
amendment of this Contract.
12. MINNESOTA LAW TO APPLY.
This Contract shall be construed and the provisions thereof
interpreted under and in accordance with laws of The State of
Minnesota.
13. PRIOR CONTRACTS.
This Contract supersedes and terminates, as of the date hereof,
all prior contracts between the Fund and the Bank relating to the
custody of the Fund's assets.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 13th day of May 1994.
MIMLIC International Balanced Fund, Inc.
By /s/ Xxxx X. Xxxxxxx
-------------------------------------
ATTEST
By /s/ Xxxx X. Xxxxxxx
-------------------------------------
NORWEST BANK MINNESOTA, N.A.
By /s/ Xxxxx X. Xxxxxx
-------------------------------------
ATTEST
By /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Minnesota Mutual
Fee Schedule For Global Custody & International Mutual Fund Accounting
April 11, 1994
DISCOUNT
Year Year Year
Monthly Account Charge 1700.00 2375.00 2725.00
Monthly Safekeeping Charge Per Issue: $5.25 $5.25 $5.25
Annual Asset Value Charges: (in Basis Points)
Charge for the first $10,000,000.00 18.5 24 24
Charge for the next $20,000,000.00 16 20 20
Charge for the remaining Value 12 15 15
All Transactions other than Global Buys/Sells: $15.00 $15.00 $15.00
Global Transactions: By Country Group
Tier I Equities Fixed Income Cedel/Euroclear
$47 $100 $47
Austria
Belgium
Denmark
Finland
Germany
Japan
Norway
Switzerland
Tier 11 Equities Fixed Income Cedel/Euroclear
$100 $100 $47
Australia
Canada
ECU
France
Hong Kong
Indonesia
Ireland
Italy
Malaysia
Mexico
Netherlands
New Zealand
Philippines
Singapore
Spain
Thailand
United Kingdom
Tier III Equities Fixed Income Cedel/Euroclear
Greece $135 $135 $47
Brazil $200 $200 $47
Venezuela $200 $200 $47
Korea $270 $270 $47
Turkey $270 $270 $47
Portugal $400 $400 $47
Out-Of-Pocket Expenses
The above schedule does not include out-of-pocket expenses that would be
incurred on the fund's behalf. Examples of out-of-pocket expenses include:
special pricing projects, forms, postage, mailing services, magnetic tapes,
microfilm/microfiche, etc.
On-Site Terminal Installation
Charges associated with terminal set-up at Minnesota Mutual would be:
Communication Line: $125 Per Month - Unlimited access to the system
Equipment Costs*: $125 PER MONTH - INCLUDES PURCHASE OF
TERMINAL AND CONTROLLER DEPRECIATED OVER THREE YEARS
Total Cost $250.00 Per Month
*Minnesota Mutual may elect to purchase the equipment at about $4000.00 outright
instead of paying a monthly charge. Equipment requirements and specifications
can be supplied on request.
This schedule is valid for 60 days following delivery of proposal.
Amendment to Custodial Contract
between
MIMLIC INTERNATIONAL BALANCED FUND, INCORPORATED
and
NORWEST BANK MINNESOTA, N.A.
This Amendment made in duplicate this 12th day of January, 1995, by and between
MIMLIC International Balanced Fund, Incorporated, a Minnesota corporation
(hereinafter called the "Fund") and Norwest Bank Minnesota, N.A. a National
Banking Association, having its principal place of business at Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, (hereinafter called the "Custodian"),
WITNESSETH,
WHEREAS, the Fund and the Custodian have an existing Custodial Contract
effective as of the 13th day of May 1994, and
WHEREAS, That Custodial Contract, in Section 9 thereof, allows the Amendment of
its provisions by mutual agreement between the Fund and the Custodian,
NOW THEREFORE, In consideration of the mutual covenants and agreements
hereinafter contained, the Fund and the Custodian hereby agree to the Amendment
of the Custodial Contract as described below, such Amendments to be effective on
the 18th day of January, 1995.
I.
Section 2.9, "Liability for Payment on Advance of Receipt of Securities
Purchased," shall be amended to read:
2.9 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES PURCHASED.
The Custodian shall not make payment for the purchase of domestic
securities for the account of a Fund in advance of receipt of the securities
purchased in the absence of specific written instructions from the Company to so
pay in advance. In any and every case where payment for purchase of domestic
securities for the account of a Fund is made by the Custodian in advance of
receipt of the securities purchased in the absence of specific written
instructions from the Company to so pay in advance, the Custodian shall be
absolutely liable to the Company (for the amount of the Fund) for such
securities to the same extent as if the securities had been received by the
Custodian.
II.
Section 2.12, "Deposit of Fund Assets in Securities Systems," shall be amended
to read:
2.12 DEPOSIT OF FUND ASSETS IN SECURITIES SYSTEMS.
The Custodian may deposit and/or maintain domestic securities owned by any
Fund in a clearing agency registered with the Securities and Exchange Commission
under Section 17A of the Exchange Act, which acts as a securities depository, or
in a Federal Reserve Bank, as Custodian may select, and to permit such deposited
Assets to be registered in the name of Custodian or Custodian's agent or nominee
on the records of such Federal Reserve Bank or such registered clearing agency
or the nominee of either (collectively referred to herein as "Securities
System") in accordance with applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and subject to the following
provisions:
1) The Custodian may keep domestic securities of a Fund in a Securities
System provided that such securities are represented in an account
("Account") of the Custodian in the Securities System which shall not
include any assets of the Custodian other than assets held as a
fiduciary, custodian or otherwise for customers;
2) The records of the Custodian with respect to domestic securities of a
Fund which are maintained in a Securities System shall identify by
book-entry those securities belonging to such Fund;
3) The Custodian shall pay for domestic securities purchased for the
account of a Fund upon (i) the simultaneous receipt of advice from the
Securities System that such securities have been transferred to the
Account, and (ii) the making of an entry on the records of the
Custodian to reflect such payment and transfer for the account of the
Fund. The Custodian shall transfer domestic securities sold for the
account of a Fund upon (i) the simultaneous receipt of advice from the
Securities System that payment for such securities has been transferred
to the Account, and (ii) the making of an entry on the records of the
Custodian to reflect such transfer and payment for the account of the
Fund. Copies of all advises from the Securities System of transfers of
securities for the account of a Fund shall identify the Fund, be
maintained for the Fund by the Custodian and be provided to the Company
at its request. Upon request, the Custodian shall furnish the Company
confirmation of each transfer to or from the account of a Fund in the
form of a written advice or notice and shall furnish to the Company
copies of daily transaction sheets reflecting each day's transactions
in the Securities System for the account of each Fund.
4) The Custodian shall provide the Company with any report obtained by the
Custodian on the Securities System's accounting system, internal
accounting control and procedures for safeguarding securities deposited
in the Securities System.
5) The Custodian shall have received the initial or annual certificate, as
the case may be, required by Article 16 hereof;
6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Company (for the account of each Fund)
for any loss or damage to the applicable Fund(s) resulting from use of
the Securities System by reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents or of any of its or
their employees or from failure of the Custodian or any such agent or
employee to enforce effectively such rights as it may have against the
Securities System; at the election of the Company, it shall be entitled
to be subrogated to the rights of the Custodian with respect to any
claim against the Securities System or any other person which the
Custodian may have as a consequence of any such loss or damage if and
to the extent that the applicable Funds have not been made whole for
any such loss or damage.
III.
The Custodial Contract shall be amended by the addition of Section 2.21, and its
subparagraphs:
2.21 DUTIES OF THE CUSTODIAN WITH RESPECT TO FUND PROPERTY HELD OUTSIDE OF THE
UNITED STATES
2.21(a) APPOINTMENT OF FOREIGN SUB-CUSTODIANS.
The Custodian is authorized and instructed, either directly or indirectly
(through one or more sub-custodian U.S. banks), to employed as sub-custodians
for any Fund's securities and other assets maintained outside of the United
States the foreign banking institutions, foreign securities depositories and
foreign clearing agencies designated on Exhibit A hereto ("foreign sub-
custodians"); provided, however, that, notwithstanding the contents of Exhibit A
hereto, the Custodian (including any of its agents and sub-custodians) is
authorized to directly or indirectly employ or retain any sub-custodian,
depository or clearing agency only if said employed or retained institution
qualifies as either (a) an "eligible foreign custodian," as defined in Rule 17f-
5 under the Investment Company Act of 1940, or (b) a "bank," as defined in
Section 2(a)(5) of the Investment Company Act of 1940, that in turn qualifies as
an eligible domestic custodian under Section 17(f) of the Investment Company Act
of 1940; and provided further that the Custodian shall be liable to the Company
for any loss of any Fund assets custodied with any institution directly or
indirectly employed or retained by the Custodian (or any of its agents or sub-
custodians) that does not meet the qualifies of either clause (a) or (b) of the
preceding provision.
Upon receipt of Proper Instructions, together with a certified resolution
of the Company's Board of Directors, the Custodian and the Company may agree to
amended Schedule A hereto from time to time to designate additional or
alternative foreign banking institutions, foreign securities depositories and
foreign clearing agencies to act as sub-custodians. Each foreign banking
institution shall be authorized to deposit securities in foreign securities
depositories and foreign clearing agencies authorized pursuant to Rule 17f-5
under the Investment Company Act of 1940. Upon receipt of Proper Instructions
from the Company the Custodian shall promptly cease the employment of any one or
more of such sub-custodians for maintaining custody of the assets of the
applicable Fund(s).
2.21(b) ASSETS TO BE HELD.
The Custodian shall limit the securities and other assets maintained in the
custody of the foreign sub-custodian to: (a) "foreign securities," as defined
in paragraph (c)(1) of Rule 17f-5 under the Investment Company Act of 1940, and
(b) cash and cash equivalents in such amounts as the Custodian or the Company
may determine to be reasonably necessary to effect the foreign securities
transactions of the applicable Fund(s).
2.21(c) SEGREGATION OF SECURITIES.
The Custodian shall identify on its books as belonging to the Company for
the account of one or more of the Fund(s) , the foreign securities of each such
Fund held by each foreign sub-custodian. Each agreement pursuant to which the
Custodian or its duly appointed U.S. sub-custodian employs a foreign banking
institution shall require that such institution establish a custody account for
the Custodian (or its U.S. sub-custodian, as the case may be) on behalf of its
customers and physically segregate in that account securities and other assets
of the Custodian's customers, and, in the event that such institution deposits a
Fund's securities in a foreign securities depository, the sub-custodian shall
identify on its books as belonging to the Custodian (or its U.S. sub-custodian,
as the case may be(, as agent for the Custodian's customers, the securities so
deposited (all collectively referred to as the "Account").
2.21(d) AGREEMENT WITH FOREIGN BANKING INSTITUTION.
Each agreement with a foreign banking institution shall provide that: (a)
each Fund's assets will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of the foreign banking institution or its
creditors, except a claim of payment for their safe custody or administration;
(b) beneficial ownership for each Fund's assets will be freely transferable
without the payment of money or value other than for custody or administration,
which may include payment of stamp duties or government taxes; (c) adequate
records will be maintained identifying the assets as belonging to the customers
of Custodian; (d) officers of or auditors employed by, or other representatives
of the Custodian, including independent public accountants for each Fund, will
be given access to the books and records of the foreign banking institution
relating to its actions given under its agreement with Custodian or shall be
given confirmation of the contents of such books and records; and (e) assets of
each Fund held by the foreign sub-custodian will be subject only to the
instructions of the Company, the Custodian or their agents.
2.21(e) ACCESS OF INDEPENDENT ACCOUNTANTS OF THE COMPANY.
Upon request of the Company, the Custodian will use its best efforts to
arrange for the independent accountants of the Company to be afforded access to
the books and records of any foreign banking institution employed as a foreign
sub-custodian insofar as such books and records relate to the performance of
such foreign banking institutions under its agreement with the Custodian (or its
U.S. sub-custodian, as the case may be).
2.21(f) REPORTS BY CUSTODIAN.
The Custodian will supply to the Company from time to time, as mutually
agreed upon, statements in respect of the securities and other assets of each
Fund held by foreign sub-custodians, including but not limited to an
identification of entities having possession of each
applicable Fund's securities and other assets and advices or
notifications of any transfers of securities to or from each custodial
account maintained by a foreign sub-custodian for the Custodian on
behalf of each applicable Fund indicating, as to securities acquired
for the Fund, the identity of the entity having physical possession of
such securities.
2.21(g)FOREIGN SECURITIES TRANSACTIONS.
1) Upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, the Custodian
shall make or cause its foreign sub-custodian to transfer, exchange or
deliver foreign securities owned by the Company for the account of a
Fund, but except to the extent explicitly provided herein only in any
of the cases specified in Section 2.2.
2) Upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, the Custodian
shall pay out or cause its foreign sub-custodian to pay out monies of
a Fund, but except to the extent explicitly provided herein only in
any of the cases specified in Section 2.8.
3) Settlement and payment for securities received for the account of
a Fund and delivery of securities maintained for the account of a Fund
may, upon receipt of Proper Instructions, be effected in accordance
with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in
which the transaction occurs, including, without limitation,
delivering securities to the purchaser thereof or to a dealer therefor
(or an agent for such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such securities from such
purchaser or dealer.
4) With respect to any transaction involving foreign securities, the
Custodian or any sub-custodian in its discretion may case a Fund's
account to be credited on either the contractual settlement date or
the actual settlement date with the proceeds of any sale or exchange
of foreign securities from the account of the applicable Fund and to
be debited on either the contractual settlement date or the actual
settlement date for the cost of foreign securities purchased or
acquired for such Fund according to Custodian's then current internal
policies and procedures pertaining to securities settlement, which
policies and procedures may change from time to time. Custodian shall
advise the Company of any changes to such policies and procedures.
The Custodian may reverse any such credit or debit made on the
contractual settlement date if the transaction with respect to which
such credit or debit was made fails to settle within a reasonable
period, determined by Custodian in its reasonable discretion, after
the contractual settlement date except that if any foreign securities
delivered pursuant to this section are returned by the recipient
thereof, the Custodian may cause any such credits and debits to be
reversed at any time.
5) Securities maintained in the custody of a foreign sub-custodian
may be maintained in the name of such entity's nominee to the same
extent as set forth in Section 2.3 of this Contract and the Fund
agrees to hold any such nominee harmless from any liability as a
holder of record of such securities.
6) Until the Custodian receives written instructions to the contrary
the Custodian shall, or shall cause the sub-custodian to collect all
interest and dividends paid on securities held in each applicable
Fund's account, unless such payment is in default. Unless otherwise
instructed, the Custodian shall convert interest, dividends and
principal received with respect to securities in a Fund's account
into United States dollars, and the Custodian shall perform foreign
exchange contracts for the conversion of United States dollars to
foreign currencies for the settlement of trades whenever it is
practicable to do so through customary banking channels. Customary
banking channels may vary based upon industry practice in each
jurisdiction, and shall include the banking facilities of the
Custodian's affiliates, in accordance with such affiliate's then
prevailing internal policy on funds repatriation. All risk and
expense incident to such foreign collection and conversions is the
responsibility of each applicable Fund's account, and Custodian shall
have no responsibility for fluctuation in exchange rates affecting
collections or conversions.
2.21(h) FOREIGN SECURITIES LENDING.
Notwithstanding any other provisions contained in this Contract, the
Custodian and any sub-custodian shall deliver and receive securities loaned or
returned in connection with securities lending transactions only upon and in
accordance with Proper Instructions; provided, if the Custodian is not the
lending agent in connection with such securities lending, then neither the
Custodian or any sub-custodian shall undertake, or otherwise be responsible for,
(i) marking to market values for such loaned securities,
(ii) collection of dividends, interest or other disbursements or
distributions made with respect to such loaned securities,
(iii) receipt of corporate action notices, communications, proxies or
instruments with respect to such loaned securities, and
(iv) custody, safekeeping, valuation or any other actions or services
with respect to any collateral securing any such securities
lending transactions.
In the event that the Custodian is the applicable Fund's lending agent in
connection with a specific securities loan, the Custodian shall undertake to
perform all of the above duties with regard to such loan, except that the
Company shall not receive, nor be enabled to vote, proxies in connection with
such loaned securities.
2.21(i) LIABILITY OF FOREIGN SUB-CUSTODIANS.
Each agreement pursuant to which the Custodian (or its U.S. sub-custodian
bank, as applicable) employs a foreign banking institution as a foreign sub-
custodian shall require the institution to exercise reasonable care in the
performance of its duties and to indemnify, and hold
harmless, the Custodian and Custodian's customers from and against
any loss, damage, cost, expense, liability or claim arising out of
such sub-custodian's negligence, fraud, bad faith, willful misconduct
or reckless disregard of its duties. At the election of the Company,
it shall be entitled to be subrogated to the right of the Custodian
with respect to any claims against the Custodian's U.S. sub-custodian
bank (if any) or a foreign banking institution as a consequence of
any such loss, damage, cost, expense, liability or claim if and to
the extent that the Company has not been made whole for any such
loss, damage, cost, expense, liability or claim.
2.21(j) MONITORING RESPONSIBILITIES.
The Custodian shall furnish annually to the Company information concerning
the foreign sub-custodians employed by the Custodian (or its U.S. sub-custodian
bank, as applicable). Such information shall be similar in kind and scope to
that furnished to the Company in connection with the initial approval of this
Contract (and any contracts with U.S. and foreign sub-custodians entered into
pursuant hereto). In addition, the Custodian will promptly inform the Company
in the event that the Custodian learns of a material adverse change in the
financial condition of a foreign sub-custodian or is notified by the Custodian's
U.S. sub-custodian bank (if any) or a foreign banking institution employed as
foreign sub-custodian that there appears to be a substantial likelihood that its
shareholders' equity will decline below $200 million (United States dollars or
the equivalent thereof) or that its shareholders' equity has declined below $200
million (in each case computed in accordance with generally accepted United
States accounting principles.)
2.21(k) BRANCHES OF UNITED STATES BANKS.
Except as otherwise set forth in this Contract, the provisions hereof shall
not apply where the custody of any Fund's assets maintained in a foreign branch
of a banking institution which is a "bank" as defined by Section 2(a)(5) of the
Investment Company Act of 1940 which meets the qualification set forth in
Section 26(a) of said Act. The appointment of any such branch as a sub-
custodian shall be governed by Article I of this Contract.
2.21(l) EXPROPRIATION INSURANCE.
The Custodian represents that it does not intend to obtain any insurance
for the benefit of the Company or any Fund which protects against the imposition
of exchange control restrictions or the transfer from any foreign jurisdiction
of the proceeds of sale of any securities or against confiscation, expropriation
or nationalization of any securities or the assets of the issuer of such
securities is organized or in which securities are held for safekeeping either
by Custodian or any sub-custodian in such country. The Custodian represents
that its understanding of the position of the Staff of the Securities and
Exchange Commission is that any investment company investing in securities of
foreign issuers has the responsibility for reviewing the possibility of the
imposition of exchange control restrictions which would affect the liquidity of
such investment company's assets and the possibility of exposure to political
risk, including the appropriateness of insuring against such risk.
IV.
Section 11 "Records," shall be amended to read:
11. RECORDS.
The Custodian shall create and maintain all records relating to its
activities and obligations under this Contract in such manner as will meet the
obligations of the Company and each Fund under the Investment Company Act of
1940, with particular attention to Section 31 thereof and Rule 31a-1 and 31a-2
thereunder. The Custodian shall also maintain records as directed by the
Company in connection with applicable federal and state tax laws and any other
law or administrative rules or procedures which may be applicable to the Company
and the Funds. With respect to securities and cash deposited with a Securities
System, a sub-custodian or an agent of the Custodian, the Custodian shall
identify on its books all such securities and cash as belonging to the Company
for the account of the applicable Fund(s). All such records shall be the
property of the Company and shall at all times during the regular business hours
of the Custodian be open for inspection by duly authority officers, employees or
agents of the Company. Such records shall be made available to the Company for
review by employees and agents of the Securities and Exchange Commission. The
Custodian shall furnish to the Company, and its agents as directed by the
Company, as of the close of business on the last day of each month a statement
showing all transactions and entries for the account of the Company during that
month, and all holdings as of month-end.
All records so maintained in connection with the performance of its duties
under this Agreement shall remain the property of the Company and, in the event
of termination of this Agreement, shall be delivered to the Company. Subsequent
to such delivery, and surviving the termination of this Agreement, the Company
shall provide the Custodian access to examine and photocopy such records as the
Custodian, in its discretion, deems necessary, for so long as such records are
retained by the Company.
V.
Section 15, "Responsibility of Custodian," shall be amended to read:
15. RESPONSIBILITY OF CUSTODIAN.
So long as and to the extent that it is in the exercise of reasonable care,
the Custodian shall not be responsible for the title, validity or genuineness of
any property or evidence of title thereto received by it or delivered by it
pursuant to this Contract and shall be held harmless in acting upon any notice,
request, consent, certificate or other instrument reasonably believed by it to
be genuine and to be signed by the proper party or parties. The Custodian shall
be held to the exercise of reasonable care in carrying out the provisions of
this Contract, but shall be kept indemnified by and shall be without liability
to the Company or any Fund for any action taken or omitted by it in good faith
and without negligence. It shall be entitled to rely on and may act upon advice
of counsel of, or reasonably acceptable to, the Company on all matters, and
shall be without liability for any action reasonable taken or omitted pursuant
to such advice. Notwithstanding the foregoing, the responsibility of the
Custodian with respect to redemptions effected by check shall be in accordance
with a separate Agreement entered into between the Custodian and the Company.
If the Company requires the Custodian to take any action with respect to
securities, which action involves the payment of money or which action may, in
the reasonable opinion of the Custodian, result in the Custodian or its nominee
assigned to the Company being liable for the payment of money or incurring
liability of some other form, the Company, as a prerequisite to requiring the
Custodian to take such action, shall provide indemnity to the Custodian in an
amount and form reasonably satisfactory to it.
If the Company requires the Custodian to advance cash or securities for any
purpose 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 Contract, 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 a Fund shall be
security therefor and should the Company fail to repay the Custodian promptly
with respect to any Fund, the Custodian shall be entitled to utilize available
cash and to dispose of assets to the extent necessary to obtain reimbursement
The Custodian shall not be liable for any loss or damage to the Company or
any Fund resulting from participation in a securities depository unless such
loss or damage arises by reason of any negligence, misfeasance, or willful
misconduct of officers or employees of the Custodian, or from its failure to
enforce effectively such rights as it may have against any securities depository
or from use of sub-custodian or agent. Anything in this Contract to the
contrary notwithstanding, the Custodian shall exercise, in the performance of
its obligations undertaken or reasonably assumed with respect to this Agreement,
reasonable care, for which the Custodian shall be responsible to the same extent
as if it were performing such duties directly. The Custodian shall be
responsible for the securities and cash held by or deposited with any sub-
custodian or agent to the same extent as if such securities and cash were
directly held by or deposited with the Custodian. The Custodian hereby agrees
that it shall indemnify and hold the Company and each applicable Fund harmless
from and against any loss which shall occur as a result of the failure of a
foreign sub-custodian holding the securities and cash to provide a level of
safeguards for maintaining any Fund's securities and cash not materially
different from that provided by a United States custodian holding such
securities and cash in the United States.
The Custodian agrees to indemnify and hold the Company and each of the
Funds harmless for any and all loss, liability and expense, including reasonable
legal fees and expenses, arising out of the Custodian's own negligence or
willful misconduct or that of its officers, agents, sub-custodians or employees
in the performance of the Custodian's duties and obligations under this
Contract.
IN WITNESS WHEREOF, each of the parties has caused this instrument to be
executed in its name and behalf by its duly authorized officers as of the day
and year first above written.
MIMLIC International Balanced Fund, Inc.
By /s/ Xxxx X. Xxxxxxx
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Attest
By /s/ Xxxx Xxxxxxx
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NORWEST BANK MINNESOTA, N.A.
By /s/ Xxxxx Xxxxxx
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Attest
By /s/ Xxxxxx X. Guiken
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