CUSTODIAN AGREEMENT
Exhibit (g)(1)
AGREEMENT executed as of this 15th day of November, 2005, and effective as of the date
hereof, between FIRST FOCUS FUNDS, INC., a Nebraska corporation, having its principal place of
business at 0000 Xxxxx Xxxxxx Stop 1072, Xxxxx, Xxxxxxxx 00000 (hereinafter called the “Fund”), and
FIRST NATIONAL BANK OF NEBRASKA, a national banking association, having its principal place of
business at 0000 Xxxxx Xxxxxx Stop 1072, Xxxxx, Xxxxxxxx 00000 (hereinafter called the “Bank”).
WITNESSETH THAT
In consideration of the mutual agreements herein contained, the Fund and the Bank, intending
to be legally bound hereby, agree as follows:
A. DEPOSITORY
1. The Fund agrees to and does hereby appoint the Bank its depository subject to the
provisions hereof, and likewise agrees to deliver to the Bank certified or authenticated copies of
its Articles of Incorporation and By-Laws, all amendments thereto, a certified copy of the
resolution of the Board of Directors appointing the Bank to act in the capacities covered by this
Agreement and authorizing the signing of this Agreement and copies of such resolutions of its Board
of Directors, contracts and other documents as may be required by the Bank in the performance of
its duties hereunder.
2. The Fund will also provide the Bank a copy of the Fidelity Bond in the amount and type of
coverage as required by Rule 17g-1 promulgated under Section 17 of the 1940 Act.
B. CUSTODIAN
1. Subject to the provisions hereof, the Fund agrees to and does hereby appoint the Bank as
Custodian for the Funds listed in Schedule A, and such other series of the Fund as the parties
subsequently shall agree in writing, and agrees that the Bank shall receive and maintain all
securities, similar investments, and cash now owned or hereafter acquired by the Fund with respect
to such series, and the Fund also agrees to deliver and pay or cause to be delivered and paid to
the Bank as Custodian, all securities, similar investments, and cash hereafter acquired by the Fund
with respect to such series.
2. All securities delivered to the Bank (other than bearer securities) shall be properly
endorsed and in form for transfer or in the name of the Bank or of a nominee of the Bank or in the
name of the Fund or a nominee of the Fund.
3. As Custodian, the Bank shall have and perform the following powers and duties:
A. Safekeeping. To keep safely in a separate account the securities of the
Fund on behalf of the Fund, from time to time to receive delivery of certificates for
safekeeping and keep such certificates physically segregated at all times from those of any
other person. The Bank shall maintain records of all receipts, deliveries and locations of
such securities, together with a current inventory thereof. The Bank shall conduct periodic
physical inspections (including sampling counts and four quarterly complete physical counts
per year to be conducted and certified to the Fund by the Chief Internal Audit officer of
the Bank) or surveys and maintain controls of bonds and other securities entrusted to it
under this Agreement in such manner as the Bank shall determine from time to
time to be
advisable in order to verify the accuracy of such inventory, provided, however, that the
Bank may deposit the securities of the Fund in a clearing agency which acts as a securities
depository or the book-entry system, or both, under an arrangement which complies with the
provisions of Rule 17f-4 promulgated under the 1940 Act. With respect to securities held by
any agent appointed pursuant to Paragraph 6-B of Section II hereof,
and with respect to securities or cash held by any Sub-Custodian appointed pursuant to
Paragraph 6-C of Section II hereof, the Bank may rely upon certificates from such agent as
to the holdings of such agent and from such Sub-Custodian as to title holdings of such
Sub-Custodian, it being understood that such reliance in no way relieves the Bank of its
responsibilities under this Agreement. The Bank will promptly report
to the Fund the
results of its inspections, indicating any shortages or discrepancies uncovered thereby, and
take appropriate action to remedy any such shortages or discrepancies. In addition, the
Bank will comply and will assist the Fund to comply with all
applicable provisions of Rule
17f-2 or the 1940 Act and will maintain such segregated accounts as are necessary to comply
with Section 18(f) of the 1940 Act.
B. Registered Name. Nominee. To register securities of the Fund held by the
Bank in the name of the Fund or of any nominee of the Fund or in the name of the Bank or of
any nominee of the Bank or in the name of any agent or any nominee of such agent pursuant to
Paragraph 6-B of Section II hereof or in the name of any Sub-Custodian or any nominee of any
such Sub-Custodian appointed pursuant to Paragraph 6-C of Section II hereof.
C. Purchases. Upon receipt of proper instructions, and insofar as cash is
available for the purpose, to pay for and receive all securities purchased for the account
of the Fund, when registered as provided in Paragraph 3-B of Section II hereof in form for
transfer satisfactory to the Bank. All securities accepted by the Bank shall be accompanied
by payment of, or a “due xxxx” for, any dividends, interest or other distributions of the
issuer, due the purchaser. In any and every case of a purchase of securities for the
account of the Fund where payment is made by the Bank in advance of receipt of the
securities purchased, the Bank shall be absolutely liable to the Fund for such securities to
the same extent as if the securities had been received by the Bank.
D. Exchange. Upon receipt of proper instructions, to exchange securities or
interim receipts or temporary securities held by it or by any agent appointed by it pursuant
to
Paragraph 6-B of Section II hereof or any Sub-Custodian appointed pursuant to Paragraph 6-C
of Section II hereof for the account of the Fund for other securities alone or for other
securities and cash, and to expend cash insofar as cash is available, in connection with any
merger, consolidation, reorganization, recapitalization, split-up of shares, changes of par
value, conversion or in connection with the exercise of warrants, subscription or purchase
rights, or otherwise; to deposit any such securities or securities and cash in accordance
with the terms of any reorganizations or protective plan or otherwise, and to deliver
securities to the designated depository or other receiving agent in response to tender
offers or similar offers to purchase received in writing. Except as instructed by proper
instructions received in timely enough fashion for the Bank
to act thereon prior to any
expiration date (which shall be presumed to be three business days prior to such date unless
the Bank has advised the Fund of a different period) and giving full details of the time and
method of submitting securities in response to any tender or similar offer, exercising any
subscription or purchase right or making any exchange pursuant to this paragraph and subject
to the Bank having fulfilled its obligations under Paragraph 6-F of Section II hereof
pertaining to notices or announcements, the Bank shall be under no obligation regarding any
tender or similar offer, subscription or purchase right or exchange except to exercise its
best efforts. When such securities are in the possession of any agent appointed by the Bank
pursuant to Paragraph 6-B of Section II hereof, or when the securities are in the possession
of a Sub-Custodian appointed pursuant to Paragraph 6-C Section II hereof, the proper
instructions referred to in the preceding sentence must be received by the Bank in timely
fashion for the Bank to notify the agent or Sub-Custodian in sufficient time to permit it to
act prior to any expiration date.
E. Sales. Upon receipt of proper instructions, to make delivery against
payment of securities which have been sold for the account of the Fund. All such payment are
to be made in cash, by a certified check upon a treasurer’s or cashier’s check of a bank, by
effective bank wire transfer through the Federal Reserve Wire System, or, if appropriate,
outside of the Federal Reserve Wire System and subsequent credit to the Fund’s Custodian
account, or, in case of delivery through a stock clearing company, by book entry credit by
the stock clearing company in accordance with the then current “street delivery” custom.
F. Purchases by Issuer. Upon receipt of proper instructions, to release and
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 that, in any such case,
the cash or other consideration is to be delivered to the Bank.
G. Changes of Name and Denomination. Upon receipt of proper instructions, to
release and deliver securities owned by the Fund to the Issuer thereof or its agent for
transfer into the name of the Fund or the Bank or a nominee of either, or for exchange for a
different number of bonds, certificates or other evidence representing the same aggregate
face amount or number of units bearing the same interest rate, maturity date and call
provisions, if any; provided that, in any such case, the new securities are to be delivered
to the Bank.
H. Street Delivery. Upon receipt of proper instructions, which in the case
of registered securities may be standing instructions, to release and deliver securities
owned by the Fund to the broker selling the same for examination in accordance with the then
current “street delivery” custom.
I. Release of Securities for Use as Collateral. Upon receipt of proper
instructions, to release securities belonging to the Fund to any bank or trust company for
the purpose of pledge or hypothecation to secure any loan incurred by the Fund; provided,
however, that securities shall be released only upon payment to the Bank of the monies
borrowed, except that in cases where additional collateral is required to secure a borrowing
already made, subject to proper prior authorization, further securities may be released for
that purpose.
Upon receipt of proper instructions, to pay such loan upon redelivery to it
of the
securities pledged or hypothecated therefore and upon surrender of the note or notes
evidencing the loan.
J. Release or Delivery of Securities for Other Purposes. Upon receipt of
proper instructions, to release or deliver any securities held by it for the account of the
Fund for any other purpose (in addition to those specified in Xxxxxxxxxx 0-X, 0-X, 0-X, 0-X,
0-X, and 3-I of Section II hereof) which the Fund declares is a proper trust purpose
pursuant to the proper instructions described in Paragraph 5-A of Section II hereof. The
Bank shall have no responsibility to determine whether said activities are a proper trust
purpose of the Fund.
K. Miscellaneous. In general, to attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase, transfer or other dealing with
such securities or property of the Fund except as otherwise from time to time directed by
proper instructions. The Bank shall render to the Fund an itemized statement of the
securities for which it is accountable to the Fund under this Agreement as of the end of
each month, as well as a list of all security transactions that remain unsettled at such
time and notification of any security transactions that fail to settle on contracted
settlement dates.
4. As Custodian, the Bank shall have and perform the following additional powers and duties:
A. Bank Account. To retain all cash of the Fund in the banking department
of the Bank subject only to draft or order by the Bank acting pursuant to the terms of this
Agreement. If and when authorized by proper instruction in
accordance with a vote of the
majority of the Board of Directors of the Fund, the Bank may open and maintain an additional
account or accounts in such other bank or trust companies as may be designated by such
instructions, such account or accounts, however, to be in the name of the Bank in its
capacity as Custodian, and subject only to its draft or other in accordance with the terms
of this Agreement. If requested by the Fund, the Bank shall furnish the Fund, not later
than twenty (20) calendar days after the last business day of each month,
a statement reflecting the current status of its internal reconciliation of the closing
balance as of the date in all accounts described in this paragraph to the balance shown on
the daily cash report for that day rendered to the Fund.
B. Collections. Unless otherwise instructed by receipt of proper instructions, to
collect, receive and deposit in the bank account or accounts maintained pursuant to
Paragraph 4-A of Section II hereof all income and other payments with respect to the
securities held hereunder, and to execute ownership and other certificates and affidavits
for all Federal and State tax purposes in connection with the collection of bond and note
coupons, and to do all other things necessary or proper in connection with the collection of
such income, and without waiving the generality of the foregoing, to:
(1) present for payment on the date of payment all coupons and other income items
requiring presentation;
(2) present for payment all securities which may mature or be called, redeemed,
retired or otherwise become payable on the date such securities become payable;
(3) endorse and deposit for collection, in the name of the Fund, checks, drafts or
other negotiable instruments on the same day as received. In any case in which the Bank
does not receive any such due and unpaid income within a reasonable time after it has
made proper demands for the same (which shall be presume to consist of at least three
demand letters and at least one telephonic demand), it shall so notify the Fund in
writing, including copies of all demand letters, any written responses thereto and to
memoranda of all oral responses thereto and to telephonic demands, and await proper
instructions; the Bank shall not be obliged to take legal action for collection unless
and until reasonably indemnified to its satisfaction. It shall also notify the Fund as
soon as reasonably practicable whenever income due on securities is not collected in due
course.
C. Sale of Shares of the Fund. To make such arrangements with the Transfer
Agent (which shall also include any sub-transfer agent) of the Fund as will enable the
Bank to make certain it receives the cash consideration due to the Fund for such new or
treasury shares of the Fund as may be issued or sold from time to time by the Fund, all in
accordance with the Fund’s Articles of Incorporation or other Fund documents or agreements.
In connection with such issuance of new or treasury shares of the Fund, the Bank shall make
such arrangements with the Transfer Agent and as shall insure the timely notification to the
Transfer Agent and to the Fund of the receipt of Federal funds by the Bank by means of the
Federal Reserve Wire System or of the receipt of funds by other bank wire transfers in
payment for the issuance of such shares or of the receipt of
funds through customary bank
collection methods. For purposes of this paragraph, the Fund hereby instructs the Bank to
consider checks not drawn on Federal funds as Federal funds according to the schedule
promulgated by the Federal Reserve Bank of Kansas City for the determination of Federal
funds credit to a member bank. Wires received prior to the close of the New York Stock
Exchange shall be deemed Federal funds on that business day; wires received on or after the
close of the New York Stock Exchange shall be deemed Federal funds on the next business day.
D. Dividends and Distributions. Upon receipt of proper instructions, which
may be continuing instructions when deemed appropriate by the parties, to release or
otherwise apply cash insofar as available, for the payment of dividends or other
distributions to shareholders of the Fund and the reinvestment of dividends in additional
Fund shares for the account of shareholders of the Fund, all in accordance with the Fund’s
Articles of Incorporation or other Fund documents or agreements.
E. Redemption of Shares of the Fund. From such funds as may be available for
the purpose but subject to the Fund’s Articles of Incorporation and other Fund documents or
agreements, and applicable resolutions of the Board of Directors of the Fund pursuant
thereto, to make funds available for payment to shareholders who have delivered to the
Transfer Agent or the Fund a request for redemption of their shares.
In connection with the redemption of shares of the Fund, the Bank is authorized and
directed upon receipt of instructions from the Transfer Agent for
the Fund or the Fund to
make funds available for transfer by check prepared either by the Bank or by an appointed
sub-custodian and delivered to the Fund for transmittal to the shareholder. The check shall
be payable to the shareholder and shall contain the address of the shareholder.
F. Payments of Disbursements and Liabilities. Upon receipt of proper
instructions, to make or cause to be made, insofar as cash is available for the purpose,
disbursements for the payment on behalf of the Fund of interest, taxes, management or
supervisory fees and operating expenses, including registration and qualification costs and
other expenses of issuing and selling shares or changing its capital structure, whether or
not such expenses shall be in whole or in part capitalized or treated as deferred expenses.
G. Other Proper Corporate Purposes. Upon receipt of proper instructions, to
make or cause to be made, insofar as cash is available, disbursements for any other purpose
(in addition to the purposes specified in Paragraphs 3-C, 3-D, 4-D, 4-E, and 4-F of Section
II hereof) which the Fund declares is a proper corporate purpose pursuant to the proper
instructions described in Paragraph 5-A of Section II hereof. The Bank shall have no
responsibility to determine whether such disbursements are for proper corporate purposes.
H. Records. To create, maintain and retain all records, except as provided
herein, relating to its activities and obligations under this Agreement in such manner as
will meet the obligations of the Fund under the 1940 Act, particularly Section 31 thereof
and Rules 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. The Fund
will use its best efforts to keep the Bank informed of any changes made or proposed to be
made by the Securities and Exchange Commission in the bookkeeping and custodial
requirements. The Bank shall, no less frequently than monthly, verify and reconcile such
records to the Fund’s other books of account and other records and shall report to the
Fund no less frequently than monthly, on the results of such verification and
reconciliation. All records maintained by the Bank in connection with the performance of
its duties under this Agreement will remain the property of the Fund, and the Bank will make
such records available upon request of the Fund and will retain such records as are required
to be maintained by Rule 3la-1. In the event of termination of this Agreement, the records
will be delivered in accordance with the terms of Paragraph 8 below.
I. Accounts. To keep books and other documents and render statements,
including interim monthly and complete quarterly financial statements, or copies thereof,
from time to time as requested by the Treasurer or any executive officer of the Fund,
including at least the following: (1) a schedule of purchases and sales of securities, (2)
investment ledgers, (3) security ledgers, (4) schedule of securities and monies borrowed or
loaned and collateral therefor.
J. Reports. To provide the following daily and periodic reports to the Fund,
and such other reports as are required by regulation for the Fund to maintain, and as
requested by the Fund and agreed upon
by the Bank:
1. Daily Reports
a. Daily cash available sheet
b. Daily interest and accrued dividend calculations
c. Daily portfolio list with comparison to previous day
2. Monthly Reports
a. Schedule of purchases and sales of securities
b. Brokerage commission schedule for the month and
year to date
c. Security ledger
d. Interest and dividend evaluation
e. Investment ledger
f. Securities and monies borrowed or loaned and
collateral therefore.
K. Receipt of Funds and Returned Checks. Upon receipt of any check or other
instrument drawn or endorsed to it as agent for, or identified as being for the account of,
the Fund, the Bank shall stamp the check with the date of receipt, shall forthwith process
the same for collection and upon receipt of Federal funds, shall credit Federal funds to the
Fund, shall deposit the net amount due the Fund to the Custodial Account of the Fund and
shall notify the Fund, at the close of each business day, in writing of the amounts of said
credits and deposits. Upon receipt of funds through the Federal Reserve Wire System or
conversion into Federal funds of funds transmitted by other bank wire transfer systems, the
Bank shall notify the Fund of such deposits, such notification to be given on a daily basis,
of the total amount deposited to said accounts during such day.
In the event that any check or other order for the payment of money is returned unpaid
for any reason, the Bank will give prompt notification to the Fund of the non-payment of
said check and shall transmit the returned check to the Fund.
L. Miscellaneous. To assist generally in the preparation of routine reports
to holders of shares of the Fund to the Securities and Exchange Commission, including Forms
N-SAR, to State “Blue Sky” authorities and to others, in the auditing of accounts, and in
other matters of like nature.
5. Other Matters.
A. Proper Instructions. The Bank shall be deemed to have received proper
instructions upon receipt of (1) written instructions signed by (a) a majority of the
Directors of the Fund, (b) one or more persons as the Board of Directors shall have from
time to time authorized to give instructions in connection with the purchase and sale of
portfolio securities on behalf of a particular series, or (c) two or more persons as the
Board of Directors shall have from time to time authorized to give any other particular
class of instructions; (2) telephonic instructions confirmed in writing within 24 hours of
such instructions as provided in (1) above; or (3) telex, telecopy or wire instructions
confirmed in writing within 24 hours of such instructions as provided in (1) above.
Different persons
may be authorized to give instructions for different purposes. A certified copy of a
resolution or action of the Board of Directors of the Fund may be received and accepted by
the Bank as conclusive evidence of the authority of any persons to act and may be considered
as in full force and effect until receipt of
written notice to the contrary. Such
instructions may be general or specific in terms.
B. Investments; Limitations. In performing its duties generally, and more
particularly in connection with the purchase, sale and exchange of securities made by or for
the Fund, the Bank may take cognizance of the provisions of the Articles of Incorporation
and By-Laws as from time to time amended; however, except as otherwise expressly provided
herein, it may assume unless and until notified in writing to the contrary that instructions
purporting to be proper instructions received by it are not in conflict with or in any way
contrary to any provision of the Articles of Incorporation and By-Laws of the Fund as
amended, or resolutions or proceedings of the Directors of the Fund.
6. The Bank and the Fund further agree as follows:
A. Expense Reimbursement. The Bank shall be entitled to receive from the
Fund on demand reimbursement for its cash disbursements, expenses and charges in connection
with its duties as Depository and Custodian as aforesaid, but excluding salaries and usual
overhead expenses.
B. Appointment of Agents. The Bank, as Custodian, may at any time or times
appoint (and may at any time remove) any other bank, trust company or responsible commercial
agent as its agent to carry out such of the provisions of this Agreement as the Bank may
from time to time direct, provided, however, that the appointment of such agent shall not
relieve of the Bank of any of its responsibilities under this Agreement.
C. Appointment of Sub-Custodians. The Bank, as the Custodian, may from time
to time employ one or more Sub-Custodians.
D. Reliance on Documents. So long as and to the extent that it is in the
exercise of reasonable care, the Bank, as Depository and Custodian, shall not be responsible
for title, validity or genuineness of any property or evidence of title thereto received by
it or delivered by it pursuant to this Agreement, and shall be protected in acting upon any
instructions, notice, request, consent, certificate or other instrument or paper reasonably
believed by it to be genuine and to have been properly executed in accordance with Paragraph
5-A of Section II hereof and shall, except as otherwise specifically provided in this
Agreement, be entitled to receive as conclusive proof of any fact or matter required to be
ascertained by it hereunder a certificate signed by any Director or the Secretary of the
Fund or any other person authorized by the Directors.
E. Access to Records. Subject to security requirements of the Bank
applicable to its own employees having access to similar records within the Bank and such
regulations as to the conduct of such matters as may be reasonably imposed by the Bank after
prior consultation with an officer of the Fund, the books and records of the Bank pertaining
to its actions under this Agreement shall be open to inspection and audit at reasonable
times by officers of, attorneys for, and auditors employed by, the Fund.
F. Voting and Other Actions. Neither the Bank nor any nominee of the Bank
shall vote any of the securities held hereunder by or for the account of the Fund, except in
accordance with the instructions contained in an officer’s
certificate. The Bank shall
promptly deliver, or cause to be executed and delivered, to the Fund all notices, proxies
and proxy soliciting materials with respect to such securities, such proxies to be executed
by the registered holder of such securities (if registered otherwise than in the name of the
Fund), but without indicating the manner in which such proxies are to be voted.
The Bank shall transmit promptly to the Fund all written information (including,
without limitation, pendency of calls and maturities of securities, corporate actions and
expirations of rights in connection therewith) received by the Bank from issuers of the
securities being held for the Fund. With respect to tender or exchange offers, the Bank
shall transmit promptly to the Fund all written information received by the Bank from
issuers of the securities whose tender or exchange is sought and from the party (or his
agents) making the tender or exchange offer.
G. Limitation of Liability. The Bank shall not be liable for any error or
judgment or mistake of law or for any loss suffered by the Fund in connection with the
performance of this Agreement, except a loss resulting from a breach of fiduciary duty with
respect to the receipt of compensation for services or a loss resulting from willful
misfeasance, bad faith or negligence on the part of the Bank in the performance of its
duties or from negligent disregard by it of its obligations and duties under this Agreement.
7. Compensation. The Fund shall pay to the Bank as Depository and Custodian fees
as set forth on Schedule A hereto as may be amended from time to time by the Custodian and the
Fund; provided, however, that any such fee and the other terms of this
Agreement shall have been
approved by a vote of the majority of the outstanding voting securities of each series as may be
required under the 1940 Act.
8. The Bank and the Fund further agree as follows:
A. Effective Period, Termination and Amendment and Interpretive and Additional
Provisions. This Agreement shall become effective as of the date of its execution,
shall continue in full force and effect until terminated as hereinafter provided, may be
amended at any time by mutual agreement of the parties hereto and may be terminated by
either party by an instrument in writing delivered or mailed, postage prepaid, to the other
party, such termination to take effect not sooner than sixty (60) days after the date of
such delivery or mailing; provided, however, that the Fund shall not amend or terminate this
Agreement in contravention of any applicable federal or state laws or regulations, or any
provision of the Fund’s Articles of Incorporation, or By-Laws as the same may from time to
time, be amended, and further provided, that the Fund may at any time by action of its Board
of Directors substitute another bank or trust company for the Bank by giving notice as above
to the Bank.
In connection with the operations of this Agreement, the Bank and the Fund may agree
from time to time on such provisions interpretive of or in addition to the provisions of
this Agreement as may in their joint opinion be consistent with the general tenor of this
Agreement, any such interpretive or additional provisions to be signed by both parties and
annexed hereto, provided that no such interpretive or additional provisions shall contravene
any applicable federal or state laws or regulations, or any provision of the Fund’s Articles
of Incorporation
or By–Laws as the same may from time to time be amended. No interpretive
or additional provision made as provided in the preceding sentence shall be deemed to be an
amendment of this Agreement.
B. Successor Custodian. Upon termination hereof, the Fund shall pay to the
Bank such compensation as may be due as of the date of such termination and shall likewise
reimburse the Bank for its costs, expenses and disbursements incurred prior to such
termination in accordance with Paragraph 6-A of Section II hereof and such reasonable costs,
expenses and disbursements as may be incurred by the Bank in connection with such
termination.
If a successor custodian is appointed by the Board of Directors of the Fund in
accordance with its Articles of Incorporation or By-Laws, the Bank shall upon termination,
deliver to such successor custodian at the office of the Bank, duly endorsed and in form for
transfer, all securities then held hereunder and all funds or other properties of the Fund
deposited with or held by it hereunder.
In the event that no written order designating a successor custodian or certified copy
of a resolution of the shareholders shall have been delivered to the Bank on or before the
date when such termination shall become effective, then the Bank shall have the right to
deliver to a bank or trust company doing business in Omaha, Nebraska of its own selection,
having an aggregate capital, surplus, and undivided-profits, as shown by its last published
report of not less than $50,000,000, all securities, funds and other properties held by the
Bank and all instruments held by it relative thereto and all other property held
by it under this
Agreement. Thereafter, such bank or trust company shall be the
successor of the Bank under this Agreement.
In the event that securities, funds, and other properties remain in the possession of
the Bank after the date of termination hereof owing to failure of the Fund to procure the
certified copy above referred to, or of the Board of Directors to appoint a successor
custodian, the Bank shall be entitled to fair compensation for its services during such
period and the provisions of this Agreement relating to the duties and obligations of the
Bank shall remain in full force and effect.
9. The Bank shall cooperate with the Fund’s independent public accountants in connection
with the annual and other audits of the books and records of the Fund and shall take all necessary
action within reasonable possibility for the Fund to obtain from year to year unqualified opinions
from the Fund’s independent public accountants with respect to the Bank’s activities hereunder in
connection with the preparation of the Fund’s Form N-SAR semiannual reports to the Securities and
Exchange Commission and with respect to any other requirements of such Commission. In addition,
the Bank shall cooperate with the Fund’s independent public accountants in connection with
compliance with the applicable provisions of Rule 17f-2 of the 1940 Act.
10. The Bank hereby represents and warrants to the Fund that it is willing and possesses all
requisite legal authority to provide the services contemplated by this Agreement without violation
of applicable laws and regulations.
11. The Fund shall not circulate any printed matter which contains any reference to the Bank
with the prior approval of the Bank, excepting solely such printed matter as merely identified the
Bank as Custodian. The Fund will submit printed matter requiring
approval to the Bank in draft
form, allowing sufficient time for review by the Bank and its counsel prior to any deadline for
printing.
12. This instrument is executed and delivered in the State of Nebraska and shall be subject
to and construed according to the laws of said State.
13. Notices and other writings delivered or mailed postage prepaid to the Fund c/o BISYS
Fund Services, Inc., 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn: Client Services and to the Bank
at Xxx Xxxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attn: Xxxxx den Herder, or to such other
address as the Fund or the Bank may hereafter specify, shall be deemed to have been properly
delivered or given hereunder to the respective address.
14. This Agreement shall be binding on and shall inure to the benefit of the Fund and the
Bank and their respective successors.
15. This Agreement may be executed simultaneously in two or more counterparts, each of which
shall be deemed an original.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed in its
name and on its behalf by a duly authorized officer as of the date and year first above written.
| ATTEST: | FIRST FOCUS FUNDS, INC. | |||||||||
By:
|
By: | |||||||||
| ATTEST: | FIRST NATIONAL BANK OF OMAHA | |||||||||
By:
|
By: | |||||||||
Schedule A
to the
Custodian Agreement
Between First Omaha Funds, Inc. and
First National Bank of Omaha
Dated as of November 15, 2005
as amended
to the
Custodian Agreement
Between First Omaha Funds, Inc. and
First National Bank of Omaha
Dated as of November 15, 2005
as amended
| Name of Fund | Compensation* | |
First Focus Core Equity Fund
|
Annual Rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund | |
First Focus Short/Intermediate Fixed Bond Fund |
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund | |
First Focus Income Fund
|
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund | |
First Focus Small Company Fund
|
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund | |
First Focus Balanced Fund
|
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund | |
First Growth Opportunities Fund
|
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund | |
First Focus Nebraska Tax-Free Fund
|
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund |
| Name of Fund | Compensation* | |
First Focus Colorado Tax-Free Fund
|
Annual rate of three one-hundredths of one percent (.03%) of the average daily net assets of such Fund |
In addition to the fees above, the Custodian shall be entitled to the following fees related to the
securities lending activity performed on behalf of the Funds:
| • | $3,200 per month payable by the Fund complex |
| FIRST FOCUS FUNDS, INC. |
||||
| By | ||||
| Xxxxx den Xxxxxx, President | ||||
| FIRST NATIONAL BANK OF OMAHA |
||||
| By | ||||
| Xxx X. Xxxxx, Vice President | ||||
| * | All fees are computed daily and paid monthly |
