EXHIBIT 99.8
FORM OF CUSTODIAN AGREEMENT
CUSTODIAN AGREEMENT
AGREEMENT dated as of October 26, 1993, between South Dakota Tax-Free Fund,
Inc. (the "Fund"), a corporation organized under the laws of the State of North
Dakota, having its principal office and place of business at 000 Xxxxx Xxxxxxxx,
Xxxxx, Xxxxx Xxxxxx 00000, and First American Bank West (the "Custodian"), a
bank organized under the laws of the State of North Dakota with its principal
place of business at 00 Xxxxx Xxxxxx XX, Xxxxx, Xxxxx Xxxxxx 00000.
WITNESSETH:
That for and in consideration of the mutual promises hereinafter set forth,
the Fund and the Custodian agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules to this Agreement,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
(a) "Authorized Person" shall be deemed to include the President, the
Vice President, the Secretary, and the Treasurer of the Fund or any other
person, whether or not any such person is an officer of the Fund, duly
authorized by the Board of Directors of the Fund to give Oral Instructions and
Written Instructions on behalf of the Fund or such other certification as may be
received by the Custodian from time to time.
(b) "Book-Entry System" shall mean the Federal Reserve/ Treasury book-
entry system for United States and federal agency securities, its successor or
successors, and its nominee or nominees.
(c) "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934, as amended, its successor or
successors and its nominee or nominees, in which the Custodian is hereby
specifically authorized to make deposits. The term "Depository" shall further
mean and include any other person to be named in Written Instructions authorized
to act as a depository under the 1940 Act, its successor or successors, and its
nominee or nominees.
(d) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and principal
by the Government of the United States or agencies or instrumentalities thereof,
commercial paper, bank certificates of deposit, bankers' acceptances, and short-
term corporate obligations, where the purchase or sale of such securities
normally requires settlement in federal funds on the same day as such purchase
or sale, repurchase and reverse repurchase agreements with respect to any of the
foregoing types of securities, and any other instrument commonly included in the
term "Money Market Security" by commercial usage or custom.
(e) "Oral Instructions" shall mean verbal instructions actually received
by the Custodian from a person reasonably believed by the Custodian to be an
Authorized Person.
(f) "Prospectus" shall mean any current prospectus and statement of
additional information relating to the registration of the Fund's Shares under
the Securities Act of 1933, as amended, and the 1940 Act.
(g) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and other
securities and investments from time to time owned by the Fund.
(h) "Shares" refers to the units into which the shareholders'
proprietary interests in the Fund are divided.
(i) "Transfer Agent" shall mean the person who performs the transfer
agent, dividend disbursing agent, and shareholder servicing agent functions for
the Fund.
(j) "Written Instructions" shall mean a written or electronic
communication actually received by the Custodian from an Authorized Person or
from a person reasonably believed by the Custodian to be an Authorized Person by
telex or any other such system whereby the receiver of such communication is
able to verify through codes or otherwise with a reasonable degree of certainty
the authenticity of the sender of such communication.
(k) The "1940 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
2. Appointment of Custodian.
(a) The Fund hereby constitutes and appoints the Custodian as custodian of
all the Securities and moneys at the time owned by or in the possession of the
Fund during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian for the
Fund and
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agrees to perform the duties thereof as hereinafter set forth.
3. Compensation.
(a) The Fund will compensate the Custodian for its services rendered under
this Agreement in accordance with the fees set forth in the Fee Schedule annexed
hereto as Schedule A and incorporated herein. Such Fee Schedule does not include
postage, for which the Custodian shall be entitled to xxxx separately.
(b) Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule A of this Agreement a revised Fee Schedule, dated and
signed by an Authorized Officer of each party hereto.
(c) The Custodian will xxxx the Fund as soon as practicable after the end
of each calendar month, and said xxxxxxxx will be detailed in accordance with
the Fee Schedule. The Fund will promptly pay to the Custodian the amount of such
billing.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets. The Fund will deliver or cause to be
delivered to the Custodian all Securities and moneys owned by it at any time
during the period of this Agreement. The Custodian shall segregate, keep, and
maintain the assets of the Fund separate and apart, including separate
identification of Securities held in the Book-Entry System. The Custodian will
not be responsible for such Securities and moneys until actually received by it.
The Fund shall instruct the Custodian from time to time in its sole discretion,
by means of Written Instructions, or in connection with the purchase or sale of
Money Market Securities, by means of Oral Instructions or Written Instructions,
as to the manner in which and in what amounts Securities and moneys of the Fund
are to be deposited on behalf of the Fund in the Book-Entry System or the
Depository; provided, however, that prior to the initial deposit of Securities
of the Fund in the Book-Entry System or the Depository, the Custodian shall have
received Written Instructions specifically approving such deposits by the
Custodian in the Book-Entry System or the Depository.
(b) Accounts and Disbursements. The Custodian shall establish and maintain
a separate account for the Fund and shall credit to the separate account of the
Fund moneys received by it for the account of the Fund and shall disburse the
same only:
(1) in payment for Securities purchased for the Fund as provided in
Section 5 hereof;
(2) in payment of dividends or distributions with respect to the
Shares of the Fund as provided in Section 7 hereof;
(3) in payment of original issue or other taxes with respect to the
Shares of the
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Fund as provided in Section 8 hereof;
(4) in payment for Shares which have been redeemed by the Fund as provided
in Section 8 hereof;
(5) pursuant to Written Instructions, or with respect to Money Market
Securities, Oral Instructions or Written Instructions, setting forth the name
and address of the person to whom the payment is to be made, the amount to be
paid, and the purpose for which payment is to be made; or
(6) in payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the Fund as provided in Section
11(h) hereof.
(c) Confirmation and Statements. Promptly after the close of business on each
day, the Custodian shall furnish the Fund with confirmations and a summary of
all transfers to or from the account of the Fund during said day. Where
securities purchased are in a fungible bulk of securities registered in the name
of the Custodian (or its nominee) or shown on the Custodian's account on the
books of the Depository or the Book-Entry System, the Custodian shall by book
entry or otherwise identify the quantity of those securities belonging to the
Fund. At least monthly, the Custodian shall furnish the Fund with a detailed
statement of the Securities and moneys held for the Fund under this Agreement.
(d) Registration of Securities and Physical Separation. All Securities held for
the Fund which are issued or issuable only in bearer form, except such
Securities as are held in the Book-Entry System, shall be held by the Custodian
in that form; all other Securities held for the Fund may be registered in the
name of the Fund, in the name of any duly appointed registered nominee of the
Custodian as the Custodian may from time to time determine, or in the name of
the Book-Entry System or the Depository or their successor or successors, or
their nominee or nominees. The Fund reserves the right to instruct the Custodian
as to the method of registration and safekeeping of the Securities. The Fund
agrees to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to register in the
name of its registered nominee or in the name of the Book-Entry System or the
Depository, any Securities which it may hold for the account of the Fund and
which may from time to time be registered in the name of the Fund. The Custodian
shall hold all such Securities specifically allocated to the Fund which are not
held in the Book-Entry System or the Depository in a separate account for the
Fund in the name the Fund physically segregated at all times from those of any
other person or persons.
(e) Collection of Income and Other Matters Affecting Securities. Unless
otherwise instructed to the contrary by Written Instructions, the Custodian by
itself, or through the use of the Book-Entry System or the Depository with
respect to Securities therein deposited, shall with respect to all Securities
held for the Fund in accordance with this Agreement:
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(1) collect all income due or payable;
(2) present for payment and collect the amount payable upon all
securities which may mature or be called, redeemed, or retired, or otherwise
become payable. Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Fund for monitoring or ascertaining of any call,
redemption, or retirement date with respect to put bonds which are owned by the
Fund and held by the Custodian or its nominee. Nor shall the Custodian have any
responsibility or liability to the Fund for any loss by the Fund for any missed
payment or other default resulting therefrom unless the Custodian received
timely notification from the Fund specifying the time, place, and manner for the
presentment of such put bond owned by the Fund and held by the Custodian or its
nominee. The Custodian shall not be responsible and assumes no liability to the
Fund for the accuracy or completeness of any notification the Custodian shall
provide to the Fund with respect to put bonds;
(3) surrender Securities in temporary form for definitive Securities;
(4) execute any necessary declarations or certificates of ownership
under the federal income tax laws or the laws or regulations of any other taxing
authority now or hereafter in effect; and
(5) hold directly, or through the Book-Entry System or the Depository with
respect to Securities therein deposited, for the account of the Fund all rights
and other Securities issued with respect to any Securities held by the Custodian
hereunder for the Fund.
(f) Delivery of Securities and Evidence of Authority. Upon receipt of Written
Instructions and not otherwise, except for Subparagraphs 5, 6, 7, and 8 which
may be effected by Oral or Written Instructions, the Custodian, directly or
through the use of the Book-Entry System or the Depository, shall:
(1) execute and deliver or cause to be executed and delivered to such
persons as may be designated in such Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of the Fund as
owner of any Securities may be exercised;
(2) deliver or cause to be delivered any Securities held for the Fund in
exchange for other Securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, merger, consolidation, or
recapitalization of any corporation, or the exercise of any conversion
privilege;
(3) deliver or cause to be delivered any Securities held for the Fund to
any protective committee, reorganization committee, or other person in
connection with the reorganization, refinancing, merger, consolidation,
recapitalization, or
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sale of assets of any corporation, and receive and hold under the terms of this
Agreement in the separate account for the Fund such certificates of deposit,
interim receipts, or other instruments or documents as may be issued to it to
evidence such delivery;
(4) make or cause to be made such transfers or exchanges of the assets
specifically allocated to the separate account of the Fund and take such other
steps as shall be stated in said Written instructions to be for the purpose of
effectuating any duly authorized plan of liquidation, reorganization, merger,
consolidation, or recapitalization of the Fund;
(5) deliver Securities owned by the Fund upon sale of such Securities for the
account of the Fund pursuant to Section 5;
(6) deliver Securities owned by the Fund upon the receipt of payment in
connection with any repurchase agreement related to such securities entered into
by the Fund;
(7) deliver Securities owned by the Fund to the issuer thereof or its agent
when such Securities are called, redeemed, retired, or otherwise become payable;
provided, however, that in any such case the cash or other consideration is to
be delivered to the Custodian. Notwithstanding the foregoing, the Custodian
shall have no responsibility to the Fund for monitoring or ascertaining of any
call, redemption, or retirement date with respect to put bonds which are owned
by the Fund and held by the Custodian or its nominee. Nor shall the Custodian
have any responsibility or liability to the Fund for any loss by the Fund for
any missed payment or other default resulting therefrom unless the Custodian
received timely notification from the Fund specifying the time, place, and
manner for the presentment of such put bond owned by the Fund and held by the
Custodian or its nominee. The Custodian shall not be responsible and assumes no
liability to the Fund for the accuracy or completeness of any notification the
Custodian may furnish to the Fund with respect to put bonds;
(8) deliver Securities owned by the Fund 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 Custodian and the Fund which
may be in any form permitted under the 1940 Act or any interpretations thereof
issued by the Securities and Exchange Commission or its staff;
(9) deliver Securities owned by the Fund for delivery as security in connection
with any borrowings by the Fund requiring a pledge of Fund assets, but only
against receipt of amounts borrowed;
(10) deliver Securities owned by the Fund upon receipt of instructions from the
Fund for delivery to the Transfer Agent or to the holders of Shares of the Fund
in
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connection with distributions in kind, as may be described from time to time in
the Fund's Prospectus, in satisfaction of requests by holders of Shares for
repurchase or redemption; and
(11) deliver Securities owned by the Fund for any other proper business
purpose, but only upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Directors signed by an Authorized
Person and certified by the Secretary of the Fund, specifying the Securities to
be delivered, setting forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper business purpose, and naming the person or
persons to whom delivery of such Securities shall be made.
(g) Endorsement and Collection of Checks, Etc. The Custodian is hereby
authorized to endorse and collect all checks, drafts, or other orders for the
payment of money received by the Custodian for the account of the Fund.
5. Purchase and Sale of Investments of the Fund.
(a) Promptly after each purchase of Securities for the Fund, the Fund
shall deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money Market Securities, Written Instructions, and (ii) with
respect to each purchase of Money Market Securities, either Written Instructions
or Oral Instructions, in either case specifying with respect to each purchase:
(1) the name of the issuer and the title of the Securities;
(2) the number of shares or the principal amount purchased and
accrued interest, if any;
(3) the date of purchase and settlement;
(4) the purchase price per unit;
(5) the total amount payable upon such purchase;
(6) the name of the person from whom or the broker through whom the
purchase was made, if any;
(7) whether or not such purchase is to be settled through the Book-
Entry System or the Depository; and
(8) whether the Securities purchased are to be deposited in the Book-
Entry System or the Depository.
The Custodian shall receive all Securities purchased by or for the
Fund and
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upon receipt of such Securities shall pay out of the moneys held for the account
of the Fund the total amount payable upon such purchase, provided that the same
conforms to the total amount payable as set forth in such Written or Oral
Instructions.
(b) Promptly after each sale of Securities of the Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities which are
not Money Market Securities, Written Instructions, and (ii) with respect to each
sale of Money Market Securities, either Written or Oral Instructions, in either
case specify with respect to such sale:
(1) the name of the issuer and the title of the Securities;
(2) the number of shares or principal amount sold and accrued
interest, if any;
(3) the date of sale;
(4) the sale price per unit;
(5) the total amount payable to the Fund upon such sale;
(6) the name of the broker through whom or the person to whom the
sale was made; and
(7) whether or not such sale is to be settled through the Book-Entry
System or the Depository.
The Custodian shall deliver or cause to be delivered the Securities to
the broker or other person designated by the Fund upon receipt of the total
amount payable to the Fund upon such sale, provided that the same conforms to
the total amount payable to the Fund as set forth in such Written or such Oral
Instructions. Subject to the foregoing, the Custodian may accept payment in
such form as shall be satisfactory to it and may deliver Securities and arrange
for payment in accordance with the customs prevailing among dealers in
Securities.
6. Lending-of Securities.
(a) If the Fund is permitted as disclosed in its current Prospectus to
lend Securities, within 24 hours after each loan of Securities, the Fund shall
deliver to the Custodian Written Instructions specifying with respect to each
such loan:
(1) the name of the issuer and the title of the Securities;
(2) the number of shares or the principal amount loaned;
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(3) the date of loan and delivery;
(4) the total amount to be delivered to the Custodian including the
amount of cash collateral and the premium, if any, separately identified;
(5) the name of the broker, dealer, or financial institution to which
the loan was made; and
(6) whether the Securities loaned are to be delivered through the
Book-Entry System or the Depository.
(b) Promptly after each termination of a loan of Securities, the Fund
shall deliver to the Custodian Written Instructions specifying with respect to
each such loan termination and return of Securities:
(1) the name of the issuer and the title of the Securities to be
returned;
(2) the number of shares or the principal amount to be returned;
(3) the date of termination;
(4) the total amount to be delivered by the Custodian (including the
cash collateral for such Securities minus any offsetting credits as described in
said Written Instructions);
(5) the name of the broker, dealer, or financial institution from
which the Securities will be returned; and
(6) whether such return is to be effected through the Book-Entry
System or the Depository.
The Custodian shall receive all Securities returned from the broker,
dealer, or financial institution to which such Securities were loaned and upon
receipt thereof shall pay the total amount payable upon such return of
Securities as set forth in the Written Instructions. Securities returned to the
Custodian shall be held as they were prior to such loan.
7. Payment of Dividends or Distributions.
(a) The Fund shall furnish to the Custodian the resolution of the
Board of Directors of the Fund certified by the Secretary (i) authorizing the
declaration of dividends or distributions on a specified periodic basis and
authorizing the Custodian to rely on Oral or Written Instructions specifying the
date of the declaration of such dividends or distributions, the date of payment
thereof, the record date as of which shareholders entitled to payment shall be
determined, the
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amount payable per share to the shareholders of record as of the record date,
and the total amount payable to the Transfer Agent on the payment date, or (ii)
setting forth the date of declaration of any dividends or distributions by the
Fund, the date of payment thereof, the record date as of which shareholders
entitled to payment shall be determined, the amount payable per share to the
shareholders of record as of the record date, and the total amount payable to
the Transfer Agent on the payment date.
(b) Upon the payment date specified in such resolution, Oral
Instructions, or Written Instructions, as the case may be, the Custodian shall
pay out the total amount payable to the Transfer Agent of the Fund.
8. Sale and Redemption of Shares.
(a) Whenever the Fund shall sell any Shares, the Fund shall deliver
or cause to be delivered to the Custodian Written Instructions duly specifying:
(1) the number of Shares sold, trade date, and price; and
(2) the amount of money to be received by the Custodian for the
sale of such Shares.
(b) Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay all original issue or
other taxes required to be paid in connection with such issuance upon the
receipt of Written Instructions specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares of the Fund are
redeemed, the Fund shall cause the Transfer Agent to promptly furnish to the
Custodian Written Instructions specifying:
(1) the number of Shares redeemed; and
(2) the amount to be paid for the Shares redeemed.
The Custodian understands that the information contained in such
Written Instructions will be derived from the redemption of Shares as reported
to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares received by the Transfer Agent for redemption and that such
Shares are valid and in good form for redemption, the Custodian shall make
payment to
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the Transfer Agent of the total amount specified in Written Instructions issued
pursuant to Paragraph (d) of this Section 8.
9 Indebtedness.
(a) The Fund will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Fund borrows money for temporary
administrative or emergency purposes using Securities as collateral for such
borrowings, a notice or undertaking in the form currently employed by any such
bank setting forth the amount which such bank will loan to the Fund against
delivery of a stated amount of collateral. The Fund shall promptly deliver to
the Custodian Written or Oral Instructions stating with respect to each such
borrowing:
(1) the name of the bank;
(2) the amount and terms of the borrowing, which may be set forth
by incorporating by reference an attached promissory note, duly endorsed by the
Fund, or other loan agreement;
(3) the time and date, if known, on which the loan is to be entered
into (the "borrowing date");
(4) the date on which the loan becomes due and payable;
(5) the total amount payable to the Fund on the borrowing date;
(6) the market value of Securities to be delivered as collateral
for such loan, including the name of the issuer, the title and the number of
shares, or the principal amount of any particular Securities;
(7) whether the Custodian is to deliver such collateral through the
Book Entry System or the Depository; and
(8) a statement that such loan is in conformance with the 1940 Act
and the Fund's Prospectus.
(b) Upon receipt of the Written or Oral Instructions referred to in
Subparagraph (a) above, the Custodian shall deliver on the borrowing date the
specified collateral and the executed promissory note, if any, against delivery
by the lending bank of the total amount of the loan payable, provided that the
same conforms to the total amount payable as set forth in the Written or Oral
Instructions. The Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. The
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Custodian shall deliver as additional collateral in the manner directed by the
Fund from time to time such Securities as may be specified in Written or Oral
Instructions to collateralize further any transaction described in this Section
9. The Fund shall cause all Securities released from collateral status to be
returned directly to the Custodian, and the Custodian shall receive from time to
time such return of collateral as may be tendered to it. In the event that the
Fund fails to specify in Written or Oral instructions all of the information
required by this Section 9, the Custodian shall not be under any obligation to
deliver any Securities. Collateral returned to the Custodian shall be held
hereunder as it was prior to being used as collateral.
10. Persons Having Access to Assets of the Fund.
(a) No Director, Officer, Employee, or Agent of the Fund, and no officer,
director, employee, or agent of the Investment Adviser shall have physical
access to the assets of the Fund held by the Custodian or be authorized or
permitted to withdraw any investments of the Fund, nor shall the Custodian
deliver any assets of the Fund to any such person. No officer, director,
employee, or agent of the Custodian who holds any similar position with the
Fund, or the Investment Adviser, shall have access to the assets of the Fund.
(b) The individual employees of the Custodian duly authorized by the Board
of Directors of the Custodian to have access to the assets of the Fund are
listed in the certification annexed hereto as Appendix C. The Custodian shall
advise the Fund of any change in the individuals authorized to have access to
the assets of the Fund by written notice to the Fund accompanied by a certified
copy of the authorizing resolution of the Custodian's Board of Directors
approving such change.
(c) Nothing in this Section 10 shall prohibit any Officer, Employee, or
Agent of the Fund or any officer, director, employee, or agent of the Investment
Adviser from giving Oral Instructions or Written Instructions to the Custodian
so long as it does not result in delivery of or access to assets of the Fund
prohibited by Paragraph (a) of this Section 10.
11. Concerning, the Custodian.
(a) Standard of Conduct. Except as otherwise provided herein, neither the
Custodian nor its nominee shall be liable for any loss or damage, including
reasonable counsel fees, resulting from its action or omission to act or
otherwise, except for any such loss or damage arising out of its own negligence
or willful misconduct. The Custodian may, with respect to questions of law,
apply for and obtain the advice and opinion of counsel to the Fund at the
expense of the Fund, or of its own counsel, at the expense of the Fund, and
shall be fully protected with respect to anything done or omitted by it in good
faith in conformity with such
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advice or opinion; provided, however, that if such reliance involves a potential
material loss to the Fund, the Custodian will advise the Fund of any such
actions to he taken in accordance with advice of counsel to the Custodian. The
Custodian shall be liable to the Fund for any loss or damage resulting from the
use of the Book-Entry System or the Depository arising by reason of any
negligence, misfeasance, or misconduct on the part of the Custodian or any of
its employees or agents.
(b) Limit of Duties. Without limiting the generality of the foregoing, the
Custodian shall be under no duty or obligation to inquire into, and shall not be
liable for:
(1) the validity of the issue of any Securities purchased by the Fund, the
legality of the purchase thereof, or the propriety of the amount paid therefor;
(2) the legality of the sale of any Securities by the Fund, or the
propriety of the amount for which the same are sold;
(3) the legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
(4) the legality of the redemption of any Shares, or the propriety of the
amount to be paid therefor;
(5) the legality of the declaration or payment of any dividend or other
distribution of the Fund; or
(6) the legality of any borrowing for temporary or emergency
administrative purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable for, or
considered to be the Custodian of, any money, whether or not represented by any
check, draft, or other instrument for the payment of money, received by it on
behalf of the Fund until the Custodian actually receives and collects such money
directly or by the final crediting of the account representing the Fund's
interest in the Book-Entry System or the Depository.
(d) Collection Where Payment Refused. The Custodian shall not be under any duty
or obligation to take action to effect collection of any amount, if the
Securities upon which such amount is payable are in default, or if payment is
refused after due demand or presentation, unless and until (i) it shall be
directed to take such action by Written Instructions and (ii) it shall be
assured to its satisfaction of reimbursement of its costs and expenses in
connection with any such action.
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(e) Appointment of Agents and Sub-Custodians. The Custodian may appoint one or
more banking institutions, including but not limited to banking institutions
located in foreign countries, to act as Depository or Depositories or as Sub-
Custodian or as Sub-Custodians of Securities and moneys at any time owned by the
Fund, upon terms and conditions specified in Written Instructions. The Custodian
shall use reasonable care in selecting a Depository and/or Sub-Custodian located
in a country other than the United States ("Foreign Sub-Custodian") and shall
oversee the maintenance of any Securities or moneys of the Fund by any Foreign
Sub-Custodian.
Any agreement between the Custodian and any Depository or Sub-Custodian
shall impose on such Depository or Sub-Custodian responsibilities and
liabilities similar in nature and scope to those imposed by this Agreement
relating to the function to be performed by such Depository or Sub-Custodian.
(f) No Duty to Ascertain Authority. The Custodian shall not be under any duty
or obligation to ascertain whether any Securities at any time delivered to or
held by it for the Fund are such as may properly be held by the Fund under the
provisions of the Fund's Prospectus.
(g) Compensation of the Custodian. The Custodian shall be entitled to receive,
and the Fund agrees to pay to the Custodian, such compensation as may be agreed
upon from time to time between the Custodian and the Fund. The Custodian may
charge against any money specifically allocated to the Fund such compensation
and any expenses incurred by the Custodian in the performance of its duties
pursuant to such agreement with respect to the Fund. Any charges associated with
DTC transactions shall be billed to the Fund at cost. The Custodian shall also
be entitled to charge against any money held by it and specifically allocated to
the Fund the amount of any loss, damage, liability, or expense incurred with
respect to the Fund including counsel fees, for which it shall be entitled to
reimbursement under the provisions of this Agreement.
The expenses which the Custodian may charge against such account include,
but are not limited to, the expenses of Sub-Custodians and foreign branches of
the Custodian incurred in settling transactions involving the purchase and sale
of Securities of the Fund.
(h) Reliance on Certificates and Instructions. The Custodian shall be entitled
to rely upon any Written Instructions or Oral Instructions actually received by
the Custodian pursuant to the applicable Sections of this Agreement and
reasonably believed by the Custodian to be genuine and to be given by an
Authorized Person. The Fund agrees to forward to the Custodian Written
Instructions from an Authorized Person confirming such Oral Instructions in such
manner so that such Written Instructions are received by the Custodian, whether
by hand delivery, telex, or otherwise, by the close of business on the same day
that such
14
Oral Instructions are given to the Custodian. The Fund agrees that the fact
that such confirming instructions are not received by the Custodian shall in no
way affect the validity of the transactions or enforceability of the
transactions hereby authorized by the Fund. The Fund agrees that the Custodian
shall incur no liability to the Fund in acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions, provided that such
instructions reasonably appear to have been received from a duly Authorized
Person.
(i) Inspection of Books and Records. The Custodian shall create and
maintain all records relating to its activities and obligations under this
Agreement in such manner as will meet the obligations of the Fund under the 1940
Act, with particular attention to Section 31 thereof and Rule 3la-1 and 3la-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 it shall at all times during the
regular business hours of the Custodian be open for inspection by duly
authorized Officers, Employees, or Agents of the Fund and employees and agents
of the Securities and Exchange Commission. The Custodian shall, at the Fund's
request, supply the Fund with a tabulation of Securities owned by the Fund and
held by the Custodian.
The Custodian shall take all reasonable action, as the Fund may from
time to time request, to obtain favorable opinions from the Fund's independent
accountant with respect to its activities hereunder in connection with the
preparation of the Fund's Form N-IA and Form N-SAR or other reports to or
requirements of the Securities and Exchange Commission.
12. Term and Termination.
(a) This Agreement shall become effective on the date first set forth above
(the "Effective Date") and shall continue in effect thereafter as the parties
may mutually agree.
(b) Either of the parties hereto may terminate this Agreement by giving to
the other party a notice in writing specifying the date of such termination,
which shall be not less than 60 days after the date of receipt of such notice.
In the event such notice is given by the Fund, it shall be accompanied by a
certified resolution of the Board of Directors of the Fund, electing to
terminate this Agreement and designating a successor custodian or custodians,
which shall be a person qualified to so act under the 1940 Act. In the event
such notice is given by the Custodian, the Fund shall, on or before the
termination date, deliver to the Custodian a certified resolution of the Board
of Directors of the Fund, designating a successor custodian or custodians. In
the absence of such designation by the Fund, the Custodian may designate a
successor custodian, which shall be a person qualified to so act under the 0000
Xxx. If the Fund fails to designate a successor custodian, the Fund shall upon
the date specified in the notice of termination of this
15
Agreement and upon the delivery by the Custodian of all Securities (other than
Securities held in the Book-Entry System which cannot be delivered to the Fund)
and moneys then owned by the Fund, be deemed to be its own custodian; and the
Custodian shall thereby be relieved of all duties and responsibilities pursuant
to this Agreement, other than the duty with respect to Securities held in Book-
Entry System which cannot be delivered to the Fund.
(c) Upon the date set forth in such notice under Paragraph (b) of this
Section 12, this Agreement shall terminate to the extent specified in such
notice, and the Custodian shall upon receipt of a notice of acceptance by the
successor custodian on that date deliver directly to the successor custodian all
Securities and moneys then held by the Custodian, after deducting all fees,
expenses, and other amounts for the payment or reimbursement of which it shall
then be entitled with respect to the Fund.
13. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed the President
and the Secretary of the Fund setting forth the names and the signatures of the
present Authorized Persons. The Fund agrees to furnish to the Custodian a new
certification in similar form in the event that any such present Authorized
Person ceases to be such an Authorized Person or in the event that other or
additional Authorized Persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully protected in
acting under the provisions of this Agreement upon Oral Instructions or
signatures of the present Authorized Persons as set forth in the last delivered
certification.
(b) Annexed hereto as Appendix B is a certification signed the President
and the Secretary present of the Fund setting forth the names of the present
Directors of the Fund who are authorized to give Oral and Written Instructions
to the Custodian. The Fund agrees to furnish to the Custodian a new
certification in similar form in the event any such present Director ceases to
be a Director of the Fund, ceases to have authority to provide Oral or Written
Instructions to the Custodian, or in the event that other or additional
Directors are elected or appointed who may be authorized to provide Oral or
Written Instructions to the Custodian. Until such new certification shall be
received, the Custodian shall be fully protected in acting under the provisions
of this Agreement upon the signature of the Directors as set forth in the last
delivered certification.
(c) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at 00
Xxxxx Xxxxxx XX, Xxxxx, Xxxxx Xxxxxx 00000, or at such other place as the
Custodian may from time to time designate in writing.
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(d) Any notice or other instrument in writing, authorized or required by this
Agreement to be given to the Fund, shall be sufficiently given if addressed to
the Fund and mailed or delivered to it at its offices at 000 Xxxxx Xxxxxxxx,
Xxxxx, Xxxxx Xxxxxx 00000, or at such other place as the Fund may from time to
time designate in writing.
(e) This Agreement may not be amended or modified in any manner, except by a
written agreement executed by both parties with the same formality as this
Agreement, and as may be permitted or required by the 1940 Act.
(f) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Fund without the written consent
of the Custodian, or by the Custodian without the written consent of the Fund
authorized or approved by a resolution of the Board of Directors of the Fund,
and any attempted assignment without such written consent shall be null and
void.
(g) This agreement shall be construed in accordance with the laws of the
State
of North Dakota.
(h) It is expressly agreed to that the obligations of the Fund hereunder shall
not be binding upon any of the Directors, Shareholders, Nominees, Officers,
Agents, or Employees of the Fund, personally, but bind only the corporate
property of the Fund. The execution and delivery of this Agreement have been
authorized by the Directors of the Fund and signed by an authorized Officer of
the Fund, acting as such, and neither such authorization by such Directors nor
such execution and delivery by such Officer shall be deemed to have been made by
any of them individually or to impose any liability on any of them personally,
but shall bind only the corporate property of the Fund.
(i) The captions of the Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
(j) This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
SOUTH DAKOTA TAX-FREE FUND, INC.
By
Date
Attest:
Agreed and Accepted by:
FIRST AMERICAN BANK WEST
By
Date
Attest:
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APPENDIX A
We, Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx, President and Secretary,
respectively, of South Dakota Tax-Free Fund, Inc. (the "Fund"), a corporation
organized under the laws of the State of North Dakota, do hereby certify that
the following individuals have been duly authorized as Authorized Persons to
give Oral Instructions and Written Instructions on behalf of the Fund, and the
signatures set forth opposite their respective names are their true and correct
signatures:
Name Signature
Xxxxxx X. Xxxxxxx
W. Xxx Xxxxxx
Xxxxxx X. Xxxxxxx
President
Xxxxx X. Xxxxx
Secretary
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APPENDIX B
We, Xxxxxx X. Xxxxxxx and Xxxxx A- Xxxxx, President and Secretary,
respectively, of South Dakota Tax-Free Fund, Inc. (the "Fund"), a corporation
organized under the laws of the State of North Dakota, do hereby certify that
the following individual serves in the following positions with the Fund and has
been duly elected to such position and qualified therefor in conformity with the
Fund's Bylaws; and the signature set forth opposite his name is his true and
correct signature:
Name Position Signature
Xxxxxx X. Xxxxxxx President and
Director
Xxxxxx X. Xxxxxxx
President
Xxxxx X. Xxxxx
Secretary
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APPENDIX C
I, Xxxxxxx X. Xxxxxxx, President of First American Bank West of Minot (the
"Custodian"), hereby certify pursuant to Section 10(b) of the Custodian
Agreement, that the following employees have been duly authorized by the
Custodian's Board of Directors to have access to the assets of South Dakota Tax-
Free Fund, Inc.:
Xxxxx X. Xxxxxx, Senior Vice President and Trust Officer; Xxxxxx Xxxxxx,
Vice President and Trust Officer; Xxxxxx Xxxxxxx, Assistant Vice President and
Trust Officer; Xxxx Xxxxx Xxxxxxxxxxx, Trust Operations Officer
Signed and dated this - day of , 1993.
Xxxxxxx X. Xxxxxxx
President
First American Bank West
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SCHEDULE A
CUSTODIAN FEE SCHEDULE
FIRST AMERICAN BANK WEST
The following annual charges will be computed, prorated, and billed on a monthly
basis. This will be a fee based on the cumulative total of all ND Holdings funds
for which First American Bank West acts as custodian.
A. ASSET HOLDING, INCOME COLLECTION, CASH SWEEPING, AND OTHER ASSET BASED
CHARGES:
STATED IN
DOLLARS PER
PERCENTAGE $1,000 OF
FUND SIZE (NET ASSET VALUE) OF 1% ASSET VALUE
ALL .015 $0.15
B. TRANSACTION CHARGES:
(includes buys, sells, & maturities)
DEPOSITORY ELIGIBLE DELIVERY OR RECEIPT $25.00
PHYSICAL DELIVERY OR RECEIPT 15.00
FED BOOK ENTRY 11.00
GNMA DEPOSITORY 10.00
CALL OPTIONS
($30.00 if physical possession taken) 10.00
FUTURES CONTRACTS ($35.00 if
physical possession taken) 10.00
C. OUT OF POCKET EXPENSES:
Federal Reserve wire fees, contract
delivery, postage, etc. at cost.
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