Exhibit (h)(7)
RECORDKEEPING AGREEMENT
BY AND AMONG
FIRST AMERICAN FUNDS, INC.,
U.S. BANCORP XXXXX XXXXXXX INC.
RECITALS
This agreement (the "Agreement") is being entered into as of December
1, 2003, by and among (i) First American Funds, Inc. ("FAF"), a Minnesota
corporation which is an investment company registered under the Investment
Company Act of 1940 (the "1940 Act"), on behalf of its separate series Prime
Obligations Fund, Government Obligations Fund, Treasury Obligations Fund, and
Tax Free Obligations Fund (each a "Fund," and collectively the "Funds") and (ii)
U.S Bancorp Xxxxx Xxxxxxx Inc. ("Xxxxx XX"), a Delaware corporation which is a
registered broker-dealer.
Each Fund is a "money market fund" as defined in regulations adopted
under the 1940 Act. It is intended that Xxxxx XX will offer a separate series of
each Fund to Piper BD's retail customers for use as a "sweep" vehicle in the
customers' accounts, and that the Funds will make these separate series
available only to retail customers of Xxxxx XX. It is further intended that
Xxxxx XX will hold the shares of each such separate series on behalf of its
customers in a single, "omnibus" account on the books of the Funds which is
carried in the name of Xxxxx XX or its nominee, and that Xxxxx XX or its
subcontractor will perform the sub-recordkeeping by means of which the shares
are identified to the respective accounts of Piper BD's retail customers.
This Agreement is being entered into in order to allow the Funds to
compensate Xxxxx XX for performing the sub-recordkeeping referred to above.
NOW THEREFORE, in consideration of the above premises and the
mutual covenants contained herein, and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties agree as
follows:
ARTICLE I. RECORDKEEPING ARRANGEMENTS
1.1 Shares of Xxxxx Xxxxxxx Series to be Held in Omnibus Account. Xxxxx XX
agrees that it will hold the shares of the Xxxxx Xxxxxxx Series of the Funds on
behalf of its retail customers in a single, "omnibus" account on the books of
the Funds which is carried in the name of Xxxxx XX or its nominee.
1.2 Recordkeeping. Xxxxx XX agrees that it or its subcontractor will perform the
sub-recordkeeping by means of which the shares of the Xxxxx Xxxxxxx Series of
the Funds which Xxxxx XX holds in omnibus accounts pursuant to Section 1.1 are
identified to the respective accounts of Piper BD's retail customers. In this
regard, Xxxxx XX or its subcontractor will:
(i) purchase and sell shares of the Xxxxx Xxxxxxx Series of
the Funds on behalf of Piper BD's retail customers pursuant to
instructions provided to Xxxxx XX by such customers, including standing
instructions with respect to such customers' "sweep" accounts;
(ii) record in Piper BD's records the numbers of shares of the
Xxxxx Xxxxxxx Series of the Funds held by Xxxxx XX on behalf of its
respective retail customers from time to time;
(iii) reinvest or distribute dividend payments received by
Xxxxx XX with respect the shares of the Xxxxx Xxxxxxx Series of the
Funds which Xxxxx XX holds on behalf of its retail customers, as
instructed by the respective customers;
(iv) provide periodic account statements to such customers
which reflect the purchases, sales, dividend reinvestments and
distributions, and closing account positions with respect to the shares
of the Xxxxx Xxxxxxx Series of the Funds which Xxxxx XX holds on behalf
of its retail customers; and
(v) provide such tax information to such retail customers and
to appropriate governmental authorities with respect to the shares of
the Xxxxx Xxxxxxx Series of the Funds which Xxxxx XX holds on behalf of
its retail customers as is required by applicable law.
In performing the foregoing functions, Xxxxx XX will, and will cause any
subcontractor to, act in accordance with applicable law and rules of
self-regulatory organizations governing Piper BD's holding of securities on
behalf of its retail customers. It is understood and agreed that in performing
the foregoing functions, Xxxxx XX is acting on behalf of its retail customers,
and is not acting on behalf of the Funds as a transfer agent or in any other
capacity.
1.3 Compensation for Recordkeeping. As compensation for the recordkeeping
services provided for in Section 1.2, FAF agrees that each Fund will pay Xxxxx
XX a fee calculated at the annual rate of 15 basis points of the average daily
net assets of the Xxxxx Xxxxxxx Series of such Fund held in the omnibus accounts
referred to in Section 1.1. Such fee shall be calculated daily and paid monthly
in arrears. Xxxxx XX may, at its option, waive any or all of such fees from time
to time.
ARTICLE II. GENERAL PROVISIONS
2.1 Representations and Warranties. Each party represents, warrants and
covenants to the others that: (i) it is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation
and has the corporate power to own its assets and properties and to carry on its
business as now being conducted; (ii) the execution, delivery and performance of
this Agreement by such party have been duly authorized, do not violate its
charter, by-laws or similar governing instruments or applicable law and do not,
and with the passage of time will not, conflict with or constitute a breach
under any other agreement, judgment or instrument to
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which it is a party or by which it is bound; and (iii) this Agreement is the
legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms.
2.2 Indemnification. Each party agrees to indemnify and hold harmless the other
parties, including their affiliates, officers, agents, directors, and employees,
against any and all liabilities, penalties, demands, claims, actions and causes
of actions, suits, obligations, encumbrances, losses, damages, costs and
expenses (including reasonable attorneys' fees), arising out of or in connection
with any breach of this Agreement by such party, including its representations,
warranties and covenants.
2.3 Limitation of Liability. IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER
PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT
DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH LOSSES.
2.4 Term and Termination. This Agreement will become effective on the effective
date specified in its caption and shall continue for two years (the "Initial
Term"). After the Initial Term, this Agreement shall automatically renew for
successive one-year terms unless a party provides written notice of termination
to the party ninety days prior to the end of the Initial Term or, in the case of
successive one-year terms, the anniversary date of the Agreement.
2.5 Survival. The respective rights and obligations of the parties hereunder
shall indefinitely survive the termination of this Agreement to the extent
necessary to preserve the intended rights and obligations of the parties.
2.6 Article and Section Headings. The article and section headings used herein
are for reference and convenience only, and shall not enter into the
interpretation hereof.
2.7 Notices. Any notice, request, demand, approval or other communication
required or permitted herein shall be in writing addressed to the parties at the
addresses set forth in the signature blocks to this Agreement, or other address
subsequently specified by a party in writing, and shall be deemed given on the
date sent if delivered personally or sent by fax (with transmission confirmed),
on the next day after it is sent if sent by Federal Express or similar delivery
service, or on the third day after it is sent if deposited with the U.S. Post
Office with first class postage prepaid.
2.8 Authority to Enter Into Agreement. Each party and its representative signing
this Agreement hereby acknowledges and represents that the individual signing
this Agreement on such party's behalf is a duly authorized agent of such party
and is authorized and has full authority to enter into this Agreement on behalf
of such party. BY EXECUTING THIS AGREEMENT, EACH PARTY ACKNOWLEDGES THAT IT HAS
READ THIS AGREEMENT AND UNDERSTANDS ITS TERMS AND PROVISIONS.
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2.9 Governing Law; Jurisdiction and Venue. Regardless of the place of its
physical execution or performance, the provisions of this Agreement shall in all
respects be construed according to, and the rights and liabilities of the
parties hereto shall in all respects be governed by the substantive laws of,
Minnesota without regard to and exclusive of Minnesota's conflict of laws rules.
Any legal action arising out of or relating to this Agreement shall be brought
exclusively in the federal or state courts in the state of Minnesota. In any
such legal action, the parties hereby waive the right to assert a lack of
personal jurisdiction, improper venue, or inconvenient forum. The prevailing
party in any action brought to enforce this Agreement shall be entitled to all
costs incurred including, but not limited to, reasonable attorneys' fees.
2.10 Partial Invalidity. The invalidity of any provision of this Agreement shall
not impair or affect the validity of the remaining portions hereof, and this
Agreement shall be construed as if such invalid provision had not been included
herein.
2.11 Entire Agreement. This Agreement expresses the entire understanding of the
parties hereto with respect to the recordkeeping provided for in Article I, and
it supersedes and replaces any and all former agreements, understandings,
representations or warranties relating to such subject matter and contains all
of the terms, conditions, understandings, representations, warranties, and
promises of the parties hereto in connection therewith. The Funds and their
adviser, administrator, and distributor may have other agreements with Xxxxx
Xxxxxxx and/or Xxxxx XX which address other subject matter and provide for the
payment of other compensation.
2.12 Amendment, Waiver, Etc. No modification, alteration or amendment of this
Agreement shall be valid or binding unless in writing and signed by all parties.
No waiver of any term or condition of this Agreement shall be construed as a
waiver of any other term or condition; nor shall any waiver of any default or
breach under this Agreement be construed as a waiver of any other default or
breach. No waiver shall be binding unless in writing and signed by the party
waiving the term, condition, default or breach. Any failure or delay by any
party to enforce any of its rights under this Agreement shall not be deemed a
continuing waiver or modification hereof and said party, within the time
provided by law, may commence appropriate legal proceedings to enforce any or
all of such rights.
2.13 Construction. Each party has cooperated in the drafting and preparation of
this Agreement, which shall not be construed against any party on the basis that
the party was the drafter.
2.14 Independent Legal Advice. The parties acknowledge that they have been
advised or had the opportunity to be advised by their own independently selected
counsel and other advisors in connection with this Agreement and enter this
Agreement solely on the basis of that advice and on the basis of their own
independent investigation of all of the facts, laws and circumstances material
to this Agreement, and not in any manner or to any degree based upon any
statement or omission by any other party (other than the representations and
warranties made by such party herein) and/or its counsel.
2.15 Counterparts. This Agreement may be executed manually or by facsimile
transmission signature in any number of counterparts. Each of such counterparts
shall for all purposes be
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deemed an original, and all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the day and
year first set forth above.
FIRST AMERICAN FUNDS, INC. U.S. BANCORP XXXXX XXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxx
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Its: Vice President Its: Chief Information Officer
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Address for notices: Address for notices:
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First American Funds, Inc. U.S. Bancorp Xxxxx Xxxxxxx, Inc.
000 Xxxxxxxx Xxxx 000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: President Attention: Chief Investment Officer
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