EXHIBIT (g)(1)
CUSTODIAN AGREEMENT
FIRST AMERICAN STRATEGY FUNDS, INC.
FIRST TRUST NATIONAL ASSOCIATION
THIS AGREEMENT, made as of this 1st day of October, 1996, by and
between First American Strategy Funds, Inc., a Minnesota corporation
(hereinafter called the "Fund"), and First Trust National Association, a
national banking association organized and existing under the laws of the United
States of America with its principal place of business at Minneapolis, Minnesota
(hereinafter called the "Custodian").
WITNESSETH:
WHEREAS, the Fund is a mutual fund that currently offers its shares
in four series - Income Fund, Growth and Income Fund, Growth Fund and Aggressive
Growth Fund -- the investment portfolios, investment objectives, and other
aspects of which are different in certain respects.
WHEREAS, the Fund desires that its securities and cash shall be
hereafter held and administered by the Custodian, pursuant to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein
made, the Fund and the Custodian agree as follows:
ARTICLE 1. DEFINITIONS
The word "Securities" as used herein shall be construed to include,
without being limited to, shares, stocks, treasury stocks, including any stocks
of the Fund, options, notes, bonds, debentures, evidences of indebtedness,
certificates of interest or participation in any profit-sharing agreements,
collateral trust certificates, reorganization certificates or subscriptions,
transferable shares, investment contracts, voting trust certificates,
certificates of deposit for a security, fractional or undivided interests in
oil, gas, or other mineral rights, or any certificates of interest or
participation in, temporary or interim certificates for, receipts for,
guarantees of, or warrants or rights to subscribe to or purchase any of the
foregoing, acceptances and other obligations, and any evidence of any right or
interest in or to any property or assets, financial futures contracts and
options thereon, and any other interest or instrument commonly known as a
security or commodity.
The word "Series" shall refer individually or collectively, as the
context requires, to Income Fund, Growth and Income Fund, Growth Fund and
Aggressive Growth Fund, and any further series of common stock of the Fund
created hereafter by resolution of the Fund's board of directors and on behalf
of which series of common stock the Fund's board of directors adopts this
Agreement.
The words "Written Order from the Fund" shall mean a request or
direction or certification in writing directed to the Custodian and signed in
the name of the Fund by any two of the individuals designated in the current
certified list referred to in Article 2, provided that one of the individuals so
signing shall be an officer of the Fund designated in said current certified
list.
ARTICLE 2. NAMES TITLES AND SIGNATURES OF FUND'S OFFICERS
The Fund shall certify to the Custodian the names, titles, and
signatures of officers and other persons who are authorized to give Written
Orders to the Custodian on behalf of each individual Series of the Fund. The
Fund agrees that, whenever any change in such authorization occurs, it will file
with the Custodian a new certified list of names, titles, and signatures which
shall be signed by at least one officer previously certified to the Custodian if
any such officer still holds an office in the Fund. The Custodian is authorized
to rely and act upon the names, titles, and signatures of the individuals as
they appear in the most recent such certified list which has been delivered to
the Custodian as hereinbefore provided.
ARTICLE 3. RECEIPT AND DISBURSING OF MONEY
Section (1). The Fund shall from time to time cause cash owned by the
Fund to be delivered or paid to the Custodian for the account of any Series, but
the Custodian shall not be under any obligation or duty to determine whether all
cash of the Fund is being so deposited, to which Series account any such cash is
being deposited, or to take any action or to give any notice with respect to
cash not so deposited. The Custodian agrees to hold such cash, together with any
other sum collected or received by it for or on behalf of the Fund, for the
account of the Fund Series designated by the Fund, in the name of "First
American Strategy Funds, Inc., Custodian Account, [Income Fund], [Growth and
Income Fund], [Growth Fund], or [Aggressive Growth Fund]" (or in the name of any
Series created hereafter and adopting this Agreement) in conformity with the
terms of this Agreement. The Custodian shall make payments of cash for the
account of the Fund only:
(a) for bills, statements and other obligations of Fund (including
but not limited to obligations in connection with the
conversion, exchange or surrender of securities owned by Fund,
interest charges, dividend disbursements, taxes, management
fees, custodian fees, legal fees, auditors' fees, transfer
agents' fees, brokerage commissions, compensation to personnel,
and other operating expenses of Fund) pursuant to Written Orders
from the Fund setting forth the name of the person to whom
payment is to be made, the amount of the payment, and the
purpose of the payment;
(b) as provided in Article 4 hereof; and
(c) upon the termination of this Agreement.
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Section (2). The Custodian is hereby appointed the attorney-in-fact
of the Fund to enforce and collect all checks, drafts, or other orders for the
payment of money received by the Custodian for the account of the Fund and drawn
to or to the order of the Fund and to deposit them in said Custodian Account of
the Fund.
ARTICLE 4. RECEIPT OF SECURITIES
The Fund agrees to place all of its Securities in the custody of the
Custodian for the account of any Series, but the Custodian shall not be under
any obligation or duty to determine whether all Securities of the Fund are being
so deposited, or to require that they be so deposited, or to take any action or
give any notice with respect to the Securities not so deposited. The Custodian
agrees to hold such Securities for the account of the Fund, in the name of the
Fund or of bearer or of a nominee of the Custodian, and in conformity with the
terms of this Agreement. The Custodian also agrees, upon Written Order from the
Fund, to receive from persons other than the Fund and to hold for the account of
the Fund Securities specified in said Written Order, and, if the same are in
proper form, to cause payment to be made therefore to the persons from whom such
Securities were received, from the funds of the Fund held by it in said
Custodian Account in the amounts provided and in the manner directed by the
Written Order from the Fund.
The Custodian agrees that all Securities of the Fund placed in its
custody shall be kept physically segregated at all times from those of any other
person, firm, or corporation, and shall be held by the Custodian with all
reasonable precautions for the safekeeping thereof, with safeguards
substantially equivalent to those maintained by the Custodian for its own
Securities.
Subject to such rules, regulations, and orders as the Securities and
Exchange Commission may adopt, the Fund may direct the Custodian to deposit all
or any part of the Securities owned by the Fund in a system for the central
handling of Securities established by a national securities exchange or a
national securities association registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, or such other person as
may be permitted by the Commission, pursuant to which system all Securities of
any particular class of any issuer deposited within the system are treated as
fungible and may be transferred or pledged by bookkeeping entry without physical
delivery of such Securities, provided that all such deposits shall be subject to
withdrawal only at the direction of the Fund.
ARTICLE 5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
The Custodian agrees to transfer, exchange, or deliver Securities as
provided in Article 6, or on receipt by it of, and in accordance with, a Written
Order from the Fund in which the Fund shall state specifically which of the
following cases is covered thereby, provided that it shall not be the
responsibility of the Custodian to determine the propriety or legality of any
such order:
(a) In the case of deliveries of Securities sold by the Fund,
against receipt by the Custodian of the proceeds of sale and
after receipt of a confirmation from a broker or dealer with
respect to the transaction;
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(b) In the case of deliveries of Securities which may mature or be
called, redeemed, retired, or otherwise become payable, against
receipt by the Custodian of the sums payable thereon or against
interim receipts or other proper delivery receipts;
(c) In the case of deliveries of Securities which are to be
transferred to and registered in the name of the Fund or of a
nominee of the Custodian and delivered to the Custodian for the
account of the Fund, against receipt by the Custodian of interim
receipts or other proper delivery receipts;
(d) In the case of deliveries of Securities to the issuer thereof,
its transfer agent or other proper agent, or to any committee or
other organization for exchange for other Securities to be
delivered to the Custodian in connection with a reorganization
or recapitalization of the issuer or any split-up or similar
transaction involving such Securities, against receipt by the
Custodian of such other Securities or against interim receipts
or other proper delivery receipts;
(e) In the case of deliveries of temporary certificates in exchange
for permanent certificates, against receipt by the Custodian of
such permanent certificates or against interim receipts or other
proper delivery receipts;
(f) In the case of deliveries of Securities upon conversion thereof
into other Securities, against receipt by the Custodian of such
other Securities or against interim receipts or other proper
delivery receipts;
(g) In the case of deliveries of Securities in exchange for other
Securities (whether or not such transactions also involve the
receipt or payment of cash), against receipt by the Custodian of
such other Securities or against interim receipts or other
proper delivery receipts;
(h) In a case not covered by the preceding paragraphs of this
Article, upon receipt of a resolution adopted by the Board of
Directors of the Fund, signed by an officer of the Fund and
certified to by the Secretary, specifying the Securities and
assets to be transferred, exchanged, or delivered, the purposes
for which such delivery is being made, declaring such purposes
to be proper corporate purposes, and naming a person or persons
(each of whom shall be a properly bonded officer or employee of
the Fund) to whom such transfer, exchange, or delivery is to be
made; and
(i) In the case of deliveries pursuant to paragraphs (a), (b), (c),
(d), (e), (f), and (g) above, the Written Order from the Fund
shall direct that the proceeds of any Securities delivered, or
Securities or other assets exchanged for or in lieu of
Securities so delivered, are to be delivered to the Custodian.
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ARTICLE 6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until the Custodian receives contrary Written Orders from
the Fund, the Custodian shall without order from the Fund:
(a) Present for payment all bills, notes, checks, drafts, and
similar items, and all coupons or other income items (except
stock dividends), held or received for the account of the Fund,
and which require presentation in the ordinary course of
business, and credit such items to the aforesaid Custodian
Account of the Fund pursuant to Custodian's then current funds
availability schedule; but Custodian shall have no duty to take
action to effect collection of any amount if the assets upon
which such payment is due are in default or if payment is
refused after due demand and presentation;
(b) Present for payment all Securities which may mature or be
called, redeemed, retired, or otherwise become payable and
credit such items to the aforesaid Custodian Account of the Fund
pursuant to Custodian's then current funds availability
schedule; but Custodian shall have no duty to take action to
effect collection of any amount if the assets upon which such
payment is due are in default or if payment is refused after due
demand and presentation;
(c) Hold for and credit to the account of the Fund all shares of
stock and other Securities received as stock dividends or as the
result of a stock split or otherwise from or on account of
Securities of the Fund, and notify the Fund promptly of the
receipt of such items;
(d) Deposit any cash received by it from, for or on behalf of the
Fund to the credit of the Fund in the aforesaid Custodian
Account (in its own deposit department without liability for
interest);
(e) Charge against the aforesaid Custodian Account for the Fund
disbursements authorized to be made by the Custodian hereunder
and actually made by it, and notify the Fund of such charges at
least once a month;
(f) Deliver Securities which are to be transferred to and reissued
in the name of the Fund, or of a nominee of the Custodian for
the account of the Fund, and temporary certificates which are to
be exchanged for permanent certificates, to a proper transfer
agent for such purpose against interim receipts or other proper
delivery receipts; and
(g) Hold for disposition in accordance with Written Orders from the
Fund hereunder all options, rights, and similar Securities which
may be received by the Custodian and which are issued with
respect to any securities held by it hereunder, and notify the
Fund promptly of the receipt of such items.
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ARTICLE 7. DELIVERY OF PROXIES
The Custodian shall deliver promptly to the Fund all proxies, written
notices, and communications with relation to Securities held by it which it may
receive from securities issuers or obligors and/or via the industry standard
information services to which Custodian subscribes.
ARTICLE 8. TRANSFER
The Fund shall furnish to the Custodian appropriate instruments to
enable the Custodian to hold or deliver in proper form for transfer any
Securities which it may hold for the Series accounts of the Fund. For the
purpose of facilitating the handling of Securities, unless the Fund shall
otherwise direct by Written Order, the Custodian is authorized to hold
Securities deposited with it under this Agreement in the name of its registered
nominee or nominees (as defined in the Internal Revenue Code and any Regulations
of the United States Treasury Department issued thereunder or in any provision
of any subsequent federal tax law exempting such transaction from liability for
stock transfer taxes) and shall execute and deliver all such certificates in
connection therewith as may be required by such laws or regulations or under the
laws of any state. The Custodian shall advise the Fund of the certificate number
of each certificate so presented for transfer and that of the certificate
received in exchange therefor, and shall use its best efforts to the end that
the specific Securities held by it hereunder shall be at all times identifiable.
ARTICLE 9. TRANSFER TAXES AND OTHER DISBURSEMENTS
The Fund shall pay or reimburse the Custodian for any transfer taxes
payable upon transfers of Securities made hereunder, including transfers
incident to the termination of this Agreement, and for all other necessary and
proper disbursements, advances and expenses made or incurred by the Custodian in
the performance or incident to the termination of this Agreement, and the
Custodian shall have a lien upon any cash or Securities held by it for the
account of the Fund for all such items, enforceable, after thirty days' Written
Notice by registered mail to the Fund, by the sale of sufficient Securities to
satisfy such lien. In the event that any advance of funds is made by Custodian
on behalf of the Fund, the Fund agrees to repay the Custodian on demand the
amount of the advance plus accrued interest at the then effective Federal funds
rate. The Custodian may reimburse itself by deducting from the proceeds of any
sale of Securities an amount sufficient to pay any transfer taxes payable upon
the transfer of Securities sold. The Custodian shall execute such certificates
in connection with Securities delivered to it under this Agreement as may be
required, under the provisions of any federal revenue act and any Regulations of
the Treasury Department issued thereunder or any state laws, to exempt from
taxation any transfers and/or deliveries of any such Securities as may qualify
for such exemption.
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ARTICLE 10. CUSTODIAN'S LIABILITY FOR
PROCEEDS OF SECURITIES SOLD
If the mode of payment for Securities to be delivered by the
Custodian is not specified in the Written Order from the Fund directing such
delivery, the Custodian shall make delivery of such Securities against receipt
by it of cash, a postal money order or a check drawn by a bank, trust company,
or other banking institution, or by a broker named in such Written Order from
the Fund, for the amount the Custodian is directed to receive. The Custodian
shall be liable for the proceeds of any delivery of Securities made pursuant to
this Article, but provided that it has complied with the provisions of this
Article, only to the extent that such proceeds are actually received.
ARTICLE 11. CUSTODIAN'S REPORT
The Custodian shall furnish the Fund, as of the close of business on
the last business day of each month, a statement showing all cash transactions
and entries for the accounts of the Series of the Fund. The books and records of
the Custodian pertaining to its actions as Custodian under this Agreement shall
be open to inspection and audit, at reasonable times, by officers of, and
auditors employed by, the Fund. The Custodian shall furnish the Fund with a list
of the Securities held by it in custody for the account of the Fund as of the
close of business on the last business day of each quarter of the Fund's fiscal
year.
ARTICLE 12. CUSTODIAN'S COMPENSATION
The Custodian shall be paid compensation at such rates and at such
times as may from time to time be agreed on in writing by the parties hereto,
and the Custodian shall have a lien for unpaid compensation, to the date of
termination of this Agreement, upon any cash or Securities held by it for the
Series accounts of the Fund, enforceable in the manner specified in Article 9
hereof.
ARTICLE 13. DURATION, TERMINATION AND AMENDMENT OF AGREEMENT
This Agreement shall remain in effect, as it may from time to time be
amended, until it shall have been terminated as hereinafter provided, but no
such alteration or termination shall affect or impair any rights or liabilities
arising out of any acts or omissions to act occurring prior to such amendment or
termination.
The Custodian may terminate this Agreement by giving the Fund ninety
days' written notice of such termination by registered mail addressed to the
Fund at its principal place of business.
The Fund may terminate this Agreement by giving ninety days', written
notice thereof delivered, together with a copy of the resolution of the Board of
Directors authorizing such
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termination and certified by the Secretary of the Fund, by registered mail to
the Custodian at its principal place of business. Additionally, this Agreement
may be terminated with respect to any Series of the Fund pursuant to the same
procedures, in which case this Agreement shall continue in full effect with
respect to all other Series of the Fund.
Upon termination of this Agreement, the assets of the Fund, or Series
thereof, held by the Custodian shall be delivered by the Custodian to a
successor custodian upon receipt by the Custodian of a copy of the resolution of
the Board of Directors of the Fund, certified by the Secretary, designating the
successor Custodian; and if no successor custodian is designated the Custodian
shall, upon such termination, deliver all such assets to the Fund.
This Agreement may be amended at any time by the mutual agreement of
the Fund and the Custodian. Additionally, this Agreement may be amended with
respect to any Series of the Fund at any time by the mutual agreement of the
Fund and the Custodian, in which case such amendment would apply to such Series
amending this Agreement but not to the other Series of the Fund.
This Agreement may not be assigned by the Custodian without the consent
of the Fund, authorized or approved by a resolution of its Board of Directors.
ARTICLE 14. SUCCESSOR CUSTODIAN
Any bank or trust company into which the Custodian or any successor
custodian may be merged or converted or with which it or any successor custodian
may be consolidated, or any bank or trust company resulting from any merger,
conversion or consolidation to which the Custodian or any successor custodian
shall be a party, or any bank or trust company succeeding to the business of the
Custodian, shall be and become the successor custodian without the execution of
any instrument or any further act on the part of the Fund or the Custodian or
any successor custodian.
Any successor custodian shall have all the power, duties, and
obligations of the preceding custodian under this Agreement and any amendments
thereof and shall succeed to all the exemptions and privileges of the preceding
custodian under this Agreement and any amendments thereof.
ARTICLE 15. GENERAL
Nothing expressed or mentioned in or to be implied from any
provisions of this Agreement is intended to give or shall be construed to give
any person or corporation other than the parties hereto any legal or equitable
right, remedy or claim under or in respect of this Agreement or any covenant,
condition or provision herein contained, this Agreement and all of the
covenants, conditions and provisions hereof being intended to be, and being, for
the sole and exclusive benefit of the parties hereto and their respective
successors and assigns.
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It is the purpose and intention of the parties hereto that the Fund
shall retain all the power, rights and responsibilities of determining policy,
exercising discretion and making decisions with respect to the purchase, or
other acquisitions, and the sale, or other disposition, of all of its
Securities, and that the duties and responsibilities of the Custodian hereunder
shall be limited to receiving and safeguarding the assets and Securities of the
Fund and to delivering or disposing of them pursuant to the Written Order of the
Fund as aforesaid, and the Custodian shall have no authority, duty or
responsibility for the investment policy of the Fund or for any acts of the Fund
in buying or otherwise acquiring, or in selling or otherwise disposing of, any
Securities, except as hereinbefore specifically set forth.
The Custodian shall in no case or event permit the withdrawal of any
money or Securities of the Fund upon the mere receipt of any director, officer
employee or agent of the Fund, but shall hold such money and Securities for
disposition under the procedures herein set forth.
ARTICLE 16. INSTRUCTIONS TO CUSTODIAN
The Custodian may, when it deems it expedient, apply to the Fund, or
to counsel for the Fund, or to its own counsel, for instructions and advice; and
the Custodian shall not be liable for any action taken by it in accordance with
the written instructions or advice of the Fund or of counsel for the Fund.
ARTICLE 17. EFFECTIVE DATE
This agreement shall become effective when it is executed and
delivered by the parties hereto, which date shall not preceed the date it shall
have been approved by the Board of Directors of the Fund. The Fund shall
transmit to the Custodian promptly after such approval by said Board of
Directors a copy of its resolution embodying such approval, certified by the
Secretary of the Fund.
ARTICLE 18. GOVERNING LAW
This agreement is executed and delivered in Minneapolis, Minnesota
and the laws of the State of Minnesota shall be controlling and shall govern the
construction, validity and effect of this contract.
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IN WITNESS WHEREOF, the Fund and the Custodian have caused this
Agreement to be executed in duplicate as of the date first above written by
their duly authorized officers.
ATTEST: FIRST AMERICAN STRATEGY FUNDS, INC.
/s/ By /s/
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Title: Vice President Its Vice President
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ATTEST: FIRST BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxx
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Title: Its V.P.
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