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BROWN BROTHERS HARRIMAN & CO.
Brown Brothers Harriman & Co. Date: February 11, 2000
Ladies And Gentlemen:
The undersigned Lifetime Achievement Fund, Inc., a Maryland corporation, (the
"Client") requests Brown Brothers Harriman & Co. (the "Custodian") to open and
maintain Custody Account(s) and Cash Account(s) denominated in United States
Dollars and in such other currencies as may be appropriate under the
circumstances. All Cash Accounts shall be operated pursuant to the attached
Exhibit 1 and the Custodian may take such actions in respect thereof as the
Custodian may be instructed to take pursuant to an Instruction (as hereinafter
defined). The Custodian shall hold or dispose of any property in the Custody
Account(s) subject at all times to the Client's order and the following standing
instructions which shall be effective until the Custodian receives written
notice of change from the Client.
INSTRUCTIONS - The Custodian may act on any notice from the Client instructing
the Custodian to act ("Instruction") provided the Custodian reasonably believes
such notice to be authorized. It shall be the Client's responsibility to send
Instructions to the Custodian through secured or electro-mechanical means
including SWIFT and tested telex, but the Custodian shall be protected in acting
upon an Instruction sent by telefax, in writing or orally, provided the
Custodian believes such Instruction to be authorized. In the event the Client
elects to send Instructions via telefax, the Client acknowledges that the
Custodian cannot assure receipt of such telefax Instructions, that the Custodian
cannot verify that authorized signatures on a telefax are original or properly
affixed, and that the Custodian shall not be responsible for actions taken in
reliance on inaccurately stated, illegible or unauthorized telefax Instructions.
INCOME - Interest, dividends and other cash distributions are to be collected by
the Custodian in current United States Dollars or other foreign currencies and
credited to the Client's account(s) with the Custodian or with a subcustodian.
PRINCIPAL - Matured or called securities or other cash payments on account of
principal are to be collected by the Custodian in current United States Dollars
or other foreign currencies and credited to the Client's account(s) with the
Custodian or with a subcustodian.
REGISTRATION - Except as set forth in the following two sentences of this
paragraph, securities to be held by the Custodian in form requiring registration
are to be registered in the name of the Custodian or in the name of a nominee of
the Custodian or, in the case of foreign securities, in the name of a
subcustodian or in the name of a nominee of a subcustodian. Unless prior,
written authority has been obtained from the Custodian, securities subject to
transfer restrictions may not generally be registered in the name of the
Custodian or a subcustodian nor in the name of a nominee of the Custodian or a
subcustodian. Such restricted securities, when received by the Custodian or the
subcustodian, which are registered counter to these limitations will, on
Instructions provided by the Client at the request of the Custodian, be
appropriately re-registered.
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BROWN BROTHERS HARRIMAN & CO.
SECURITIES - The Custodian may, without specific instruction from the Client,
take such actions in respect of securities held in the Client's Custody
Account(s) as the Custodian customarily takes in the course of administering
custody duties. The Custodian shall take any other actions (including, without
limitation, in respect of corporate actions requiring investment decisions) only
upon receipt of an Instruction. The Custodian may effect any Instruction to
deliver or receive securities against payment in accordance with local custom or
practice, even if market practice does not call for delivery or receipt against
payment.
RESPONSIBILITY - As custodian of the securities held for the Client, the
Custodian will exercise reasonable care and diligence under the circumstances
prevailing in the market in which action is taken or securities are held. The
Client hereby indemnifies and holds the Custodian harmless against any losses,
costs or expenses the Custodian may suffer or incur as a result of (i) any
actions taken under this Agreement except those resulting from the Custodian's
negligence, bad faith or willful misconduct, (ii) any legal action the Custodian
undertakes in good faith in respect of securities held in its custody pursuant
to the Client's Instruction, (iii) any actions taken in reliance on
Instructions, and (iv) any taxes incurred or assessed against the Custodian in
respect of securities or other property the Custodian holds on the Client's
behalf. The Custodian will not be held accountable for delays or losses
resulting from (i) failure to receive timely and suitable notification
concerning income, redemptions, exchanges and other developments in securities
in the Client's Account(s) with the Custodian; (ii) force majeure, acts of God,
investment risks and other events beyond the Custodian's reasonable control, and
(iii) acts of a government, whether de facto or de jure, that prevent or delay
the Custodian from acting in accordance with the terms hereof, including,
without limitation, expropriation, confiscation and currency devaluation. The
Client understands that the Custodian may avail itself of the services of a
central depository or clearing corporation, including, without limitation, The
Depository Trust Company, The Participants Trust Company and The Federal Reserve
Bank in the United States. Securities held in such central depositories or
clearing corporations shall be held subject to the rules and regulations of such
institutions and shall, where appropriate, be registered in accordance with
their normal practice. The Custodian shall not be responsible to the Client for
any loss or damage to property held at such central depository or clearing
corporation except to the extent the Custodian recovers from such central
depository or clearing corporation. In no event shall the Custodian be liable
hereunder for any special, indirect, punitive or consequential damages arising
out of, pursuant to or in connection with this Agreement even if the Custodian
has been advised of the possibility of such damages.
The Client understands that the Custodian may, from time to time and in the
Custodian's sole discretion, advance funds on behalf of the Client to facilitate
the settlement of securities transactions or the administration of the
account(s). In the event of such an advance, the Custodian shall have all the
rights afforded the Custodian by common law or by statute, including, without
limitation, the rights of a financial intermediary under the Uniform Commercial
Code in effect in New York. The Custodian shall have a first priority security
interest in securities and cash in the account(s) to the extent and for the
duration of any such advance.
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BROWN BROTHERS HARRIMAN & CO.
CONFIDENTIALITY. - The Custodian agrees that all information in relation to the
Client and to the assets and liabilities of the Client, which is given to or
obtained by the Custodian in whatever capacity (all such information being
referred to hereafter as "Information"), shall be treated as confidential and
held in confidence, except that the Custodian, its affiliates and the partners,
officers, employees, auditors and counsel of the Custodian (all such entities
and persons are referred to hereafter as a "Representative") are hereby granted
permission to disclose Information as follows:
(a) to any person or entity at the request or with the permission of the
Client;
(b) to any Representative; and
(c) to any person or entity in response to a lawful request, examination or
inquiry by a United States federal or state government agency; a
subpoena or other order issued by any court, administrative agency or
securities regulator having jurisdiction over the Representative
responding thereto; or otherwise in accordance with the laws or
regulations applicable to the Representative responding thereto.
(d) Representative is permitted to obtain and retain Information regarding
the account at the office of the relevant affiliate in order to comply
with applicable laws and regulations.
The authorization contained herein may not be withdrawn or limited in any way as
to scope or time and constitutes a waiver which may not be withdrawn or limited
by the Client or any statutory or common law rights of confidentiality or duties
of confidentiality applicable under the laws of those jurisdictions of the
Representatives and the Client as such laws currently exist or may be amended in
the future. Any Representative who relies in good faith on the advice of counsel
in acting under this section shall be deemed authorized by this section and
protected in so acting.
SECURITIES OF FOREIGN ISSUE OR PRECIOUS METALS - In the event that the Client
instructs the Custodian to hold in custody securities of foreign issue or
precious metals, the Custodian is authorized to engage the banks and other
financial organizations listed on the attached Exhibit 3 (as such Exhibit may be
updated from time to time in a writing signed by the Client) as its
subcustodians in holding or servicing securities of foreign issue or precious
metals that may be held for the Client's account(s). The Custodian will not be
held accountable for the default or negligence of such subcustodians or any
securities depository whose services they utilize or for their inability to
comply with the Client's Instructions. Securities of foreign issue may be held
in or through central depositories or clearing corporations in accordance with
local market practice or convention. Neither the Custodian nor any subcustodian
shall be responsible to the Client for any loss or damage to property held at
such central depository or clearing corporation except to the extent the
Custodian recovers from such central depository or clearing corporation.
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BROWN BROTHERS HARRIMAN & CO.
ORDERS FOR THE SALE OF SECURITIES - The Client hereby certifies that, in the
event the Custodian receives from the Client an order to sell securities that
are not held in the Client's Custody Account(s) or are not to the Custodian's
knowledge in transit, such order shall constitute a designation by the Client
that such securities either have been forwarded to the Custodian for the
Client's account(s) or will be so forwarded promptly.
COMMUNICATION WITH ISSUING COMPANIES - The Securities and Exchange Commission
has adopted a rule to provide a means of direct communication between issuing
companies and certain other third parties and their beneficial shareholders
whose securities are registered in the name of a bank or other intermediary or
its nominee. Under this rule, beneficial owners of securities have the right to
decide whether they wish to have their names, addresses and security positions
disclosed to authorized third parties.
YES - The Custodian is authorized to disclose the Client's name and
-------- address and the number of units held for any security positions.
NO - The Custodian is instructed NOT to disclose the Client's name
-------- and address and the number of units held for any security
positions.
BY SIGNING THIS AGREEMENT, THE CLIENT ACKNOWLEDGES THAT ITS FAILURE TO INDICATE
A CHOICE WILL REQUIRE THE CUSTODIAN TO DISCLOSE THE APPROPRIATE INFORMATION IF
REQUESTED.
FEES AND CHARGES - The Client shall pay the Custodian the fees and charges as to
which Client and Custodian agree from time to time.
GOVERNING LAW - THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAW OF SUCH STATE. BY SIGNING THIS AGREEMENT, THE CLIENT AND THE
CUSTODIAN IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN THE BOROUGH
OF MANHATTAN.
NOTICES - Any notices to be sent or delivered under this Agreement shall be sent
in accordance with the attached Exhibit 2.
DURATION AND TERMINATION OF AGREEMENT - This Agreement has an unlimited duration
and will be valid as of the date first written above. Either party may terminate
this Agreement upon sixty (60) days' written notice to the other party. Any
termination of this Agreement shall not affect any Instruction received by the
Custodian prior to the effective date of such termination or any obligations
arising in respect thereto. Additionally, any indemnifications granted under
this Agreement shall not be affected by such termination.
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BROWN BROTHERS HARRIMAN & CO.
Except as specifically provided herein, this Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof.
Accordingly, this Agreement supercedes any custody agreement or other oral or
written agreements heretofore in effect between us with respect to the custody
of securities or other property of the Client.
The Client may terminate this Agreement at any time by notice to the Custodian
effective immediately if:
a) the Custodian shall fail in any material respect to perform its obligations
under this Agreement;
b) the Custodian shall be adjudged bankrupt or insolvent, or there shall be
commenced against the Custodian a case under any applicable bankruptcy,
insolvency, or other similar law now or hereafter in effect;
c) any change in any applicable law, rule or regulation or in the
interpretation or administration thereof that may reasonably be expected to
have an adverse effect on the Client with respect to any securities or cash
or the services provided under this Agreement.
Upon termination of this Agreement, the Custodian shall deliver to the Client a
full and complete report of all transactions which have occurred from the date
of its last report to the date of termination. Upon receiving a notice of
termination, the Custodian shall deliver the securities held in the Custody
Account(s) and pay cash in the Cash Account(s) as designated by the Client in
written Instructions. The Custodian shall continue to hold such securities and
cash subject to this Agreement until such Instructions are given.
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BROWN BROTHERS HARRIMAN & CO.
Very truly yours,
LIFETIME ACHIEVEMENT FUND, INC.
--------------------------------
Printed Name of Account(s) Owner
[Use this column for a
second signature if required.]
/s/ Roland R. Manarin /s/ Charles H. Richter
--------------------------- ----------------------------
Signature Signature
Roland R. Manarin Charles Richter
--------------------------- ----------------------------
Printed Name Printed Name
President Secretary
--------------------------- ----------------------------
Capacity Capacity
Please enter the capacity in which you are signing if other than
individually or as joint tenant. ( Examples: Corporate Officer,
General Partner, Manager,
Member, Trustee, Executor,
Guardian, Attorney-in-Fact )
Accepted and agreed:
/s/ W. Casey Gildeau
--------------------------------
per pro Brown Brothers Harriman & Co.
W. Casey Gildeau, Sr. Vice President
-------------------------------------
Printed Name and Title
THE CUSTODIAN IS A LICENSED PRIVATE BANK AND A MEMBER FIRM OF THE NEW YORK STOCK
EXCHANGE ("NYSE") AND OTHER MAJOR STOCK EXCHANGES IN THE UNITED STATES. IN THE
CONDUCT OF ITS BUSINESS, THE CUSTODIAN IS GOVERNED BY THE RULES AND REGULATIONS
OF THE BANKING DEPARTMENT OF THE STATE OF NEW YORK AND OF THE NYSE.
AS A MEMBER FIRM OF THE NYSE, THE CUSTODIAN EXECUTES ORDERS FOR THE PURCHASE AND
SALE OF SECURITIES SOLELY AS AGENT FOR ITS CUSTOMERS. AS A BANK, THE CUSTODIAN
IS NOT PERMITTED TO UNDERWRITE SECURITIES AND IT DOES NOT, FOR ITS OWN ACCOUNT,
DEAL IN SECURITIES, OTHER THAN UNITED STATES GOVERNMENT SECURITIES AND GENERAL
OBLIGATIONS OF STATES AND MUNICIPALITIES OF THE UNITED STATES. THE CUSTODIAN
DOES NOT MAINTAIN MARGIN ACCOUNTS NOR DOES THE CUSTODIAN ACCEPT ORDERS FOR
"SHORT" SALES.
BROWN BROTHERS HARRIMAN & CO.
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BROWN BROTHERS HARRIMAN & CO.
EXHIBIT 1
CASH ACCOUNTS
GENERAL TERMS AND CONDITIONS
Following are the general terms and conditions in respect of all cash accounts
(including Demand Deposit Bank Accounts) held by Brown Brothers Harriman & Co.
("BBH&Co.") pursuant to a Custodian Agreement.
Cash accounts opened and maintained on the books of BBH&Co. ("BBH Accounts")
shall be opened in the name of the depositor. Subject always to the force
majeure provisions of the Custodian Agreement, the Custodian shall be liable for
repayment of any and all deposits carried on its books as principal, whether
denominated in United States Dollars or in other currencies.
Where applicable, cash accounts opened and maintained on the books of a duly
appointed subcustodian may be opened in the name of the depositor or BBH&Co. or
in the name of BBH&Co. for its customers generally ("Agency Accounts"). Such
deposits shall be treated as portfolio securities, and accordingly, BBH&Co.
shall be responsible for the exercise of reasonable care in respect of the
administration of such Agency Accounts but shall not be liable for their
repayment in the event the subcustodian fails to make repayment (including in
the event of the subcustodian's bankruptcy or insolvency). Agency Accounts shall
also have the benefit of the force majeure provisions of the Custodian
Agreement.
BBH&Co. shall not be liable for any loss or damage arising from the
applicability of any law or regulation now or hereafter in effect, or from the
occurrence of any event, which may delay or affect the transferability,
convertibility or availability of any currency in the country (i) in which such
BBH or Agency Accounts are maintained or (ii) in which such currency is issued,
and in no event shall BBH&Co. be obligated to make payment of a deposit
denominated in a currency during the period during which its transferability,
convertibility or availability has been affected by any such law, regulation or
event. Without limiting the generality of the foregoing, neither BBH&Co. nor any
subcustodian shall be required to repay any deposit made at a foreign branch of
either BBH&Co. or such subcustodian if such branch cannot repay the deposit due
to (i) an act of war, insurrection or civil strife; or (ii) an action by a
foreign government or instrumentality, whether de jure or de facto, in the
country in which the branch is located preventing such repayment, unless BBH&Co.
or such subcustodian expressly agrees in writing to repay the deposit under such
circumstances.
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BROWN BROTHERS HARRIMAN & CO.
EXHIBIT 1 - CONTINUED
CASH ACCOUNTS
GENERAL TERMS AND CONDITIONS
All currency transactions in any account opened pursuant to a Custodian
Agreement are subject to exchange control regulations of the United States and
of the country where such currency is the lawful currency or where the account
is maintained. Any taxes, costs, charges or fees imposed on the convertibility
of a currency held by the depositor shall be for the account of the depositor.
BBH&Co. shall make payments from or deposits to any account in the course of its
administrative duties including, but not limited to income collection with
respect to a depositor's investments, and otherwise in accordance with
Instructions. BBH&Co. and its subcustodians shall be required to credit amounts
to the cash account(s) only when monies are actually received in cleared funds
in accordance with banking practice in the country and currency of deposit. Any
credit made to any BBH Account or Agency Account before actual receipt of good
funds shall be provisional and may be reversed by BBH&Co. in the event such
payment is not actually collected. Unless otherwise specifically agreed in
writing by BBH&Co. or any subcustodian, all deposits shall be payable only at
the branch of BBH&Co. or subcustodian where the deposit is made or carried.
For purposes hereof, deposits maintained in all BBH Accounts (whether or not
denominated in United States Dollars) shall collectively constitute a single and
indivisible current account with respect to the depositor's obligations to
BBH&Co., or its assignee, and balances in such BBH Accounts shall be available
for satisfaction of the depositor's obligations hereunder. BBH&Co. shall further
have a right of offset against the balances in any Agency Account maintained
hereunder to the extent that the aggregate of all BBH Accounts is overdrawn.
In the event that a Funds Transfer Agreement is executed between us, such
Agreement shall comprise a designation of form of a means of delivering
instructions in respect of the Cash Account(s).
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BROWN BROTHERS HARRIMAN & CO.
EXHIBIT 2
NOTICES
Notices and other writings contemplated by this Agreement, other than
Instructions, shall be delivered (a) by hand, (b) by first class registered or
certified mail, postage prepaid, return receipt requested, (c) by a nationally
recognized overnight courier or (d) by facsimile transmission, provided that any
notice or other writing sent by facsimile transmission shall also be mailed,
postage prepaid, to the party to whom such notice is addressed. All such notices
shall be addressed, as follows:
If to the Client: Lifetime Achievement Fund, Inc.
11605 West Dodge Road, Suite 1
Omaha, NE 68154
Attention: Roland R. Manarin
Telephone: (402) 330-1166
Telefax: (402) 333-4297
If to the Custodian: Brown Brothers Harriman & Co.
40 WATER STREET
BOSTON, MA 02109
Attention: MANAGER, INVESTOR SERVICES DEPARTMENT
Telephone: (617) 772-1818
Telefax: (617) 772-2263
or at such other address as the Client or the Custodian may have designated in
writing to the other.
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BROWN BROTHERS HARRIMAN & CO.
EXHIBIT 2 - CONTINUATION PAGE
NOTICES
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BROWN BROTHERS HARRIMAN & CO.
EXHIBIT 3
SUBCUSTODIANS AND DEPOSITORIES
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BROWN BROTHERS HARRIMAN & CO.
EXHIBIT 3 - CONTINUATION PAGE
SUBCUSTODIANS AND DEPOSITORIES
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