Exhibit 99(g)
CUSTODY AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of July, 2006,
by and between FIRST AMERICAN FUNDS, INC., a Minnesota corporation (the "Fund"),
and U.S. BANK 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 Cincinnati, Ohio (the "Custodian").
WHEREAS, the Fund is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, the Custodian is a bank having the qualifications prescribed in
Section 26(a)(1) of the 1940 Act;
WHEREAS, the Fund desires to retain the Custodian to act as custodian of
the cash and securities of each series of the Fund listed on Exhibit C hereto
(as amended from time to time) (individually and collectively, the "Series");
and
WHEREAS, the Board of Directors of the Fund (the "Board") has delegated to
the Custodian the responsibilities set forth in Rule 17f-5(c) under the 1940 Act
and the Custodian is willing to undertake the responsibilities and serve as the
foreign custody manager for the Fund.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the meanings set forth below unless the context otherwise requires:
1.1 "Authorized Person" means any Officer or other person duly authorized
by resolution of the Board to give Oral Instructions and Written
Instructions on behalf of the Series named in the resolution of the
Board, certified by an Officer and attached hereto as Exhibit A, or in
any subsequent resolution of the Board, certified by an Officer, as
may be received by the Custodian from time to time.
1.2 "Board" shall mean the directors from time to time serving under the
Fund's articles of incorporation, as amended from time to time.
1.3 "Book-Entry System" shall mean a federal book-entry system as provided
in Subpart O of Treasury Circular Xx. 000, 00 XXX 306, in Subpart B of
31 CFR
Part 350, or in such book-entry regulations of federal agencies as are
substantially in the form of such Subpart O.
1.4 "Business Day" shall mean any day recognized as a settlement day by
The New York Stock Exchange, Inc., and any other day for which the
Fund computes the net asset value of Shares of the Series.
1.5 "Eligible Foreign Custodian" has the meaning set forth in Rule
17f-5(a)(1), including a majority-owned or indirect subsidiary of a
U.S. Bank (as defined in Rule 17f-5), a bank holding company meeting
the requirements of an Eligible Foreign Custodian (as set forth in
Rule 17f-5 or by other appropriate action of the SEC), or a foreign
branch of a Bank (as defined in Section 2(a)(5) of the 0000 Xxx)
meeting the requirements of a custodian under Section 17(f) of the
1940 Act; the term does not include any Eligible Securities
Depository.
1.6 "Eligible Securities Depository" shall mean a system for the central
handling of securities as that term is defined in Rule 17f-4 and 17f-7
under the 0000 Xxx.
1.7 "Foreign Securities" means any of the Series investments (including
foreign currencies) for which the primary market is outside the United
States and such cash and cash equivalents as are reasonably necessary
to effect the Series' transactions in such investments.
1.8 "Series Custody Account" shall mean any of the accounts in the name of
the Fund, which is provided for in Section 3.2 below.
1.9 "IRS" shall mean the Internal Revenue Service.
1.10 "NASD" shall mean The National Association of Securities Dealers, Inc.
1.11 "Officer" shall mean the Chairman, President, any Vice President, any
Assistant Vice President, the Secretary, any Assistant Secretary, the
Treasurer, or any Assistant Treasurer of the Fund.
1.12 "Oral Instructions" shall mean instructions orally transmitted to and
accepted by the Custodian because such instructions are: (i)
reasonably believed by the Custodian to have been given by any two
Authorized Persons, (ii) recorded and kept among the records of the
Custodian made in the ordinary course of business, and (iii) orally
confirmed by the Custodian. The Fund shall cause all Oral Instructions
to be confirmed by Written Instructions prior to the end of the next
Business Day. If such Written Instructions confirming Oral
Instructions are not received by the Custodian prior to a transaction,
it shall in no way affect the validity of the transaction or the
authorization thereof by the Fund. If Oral Instructions vary from the
Written Instructions that purport to confirm them, the Custodian shall
notify the Fund of such variance but such Oral Instructions will
govern unless the Custodian has not yet acted.
1.13 "Proper Instructions" shall mean Oral Instructions or Written
Instructions.
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1.14 "SEC" shall mean the Securities and Exchange Commission.
1.15 "Securities" shall include, without limitation, common and preferred
stocks, bonds, call options, put options, debentures, notes, bank
certificates of deposit, bankers' acceptances, mortgage-backed
securities or other obligations, and any certificates, receipts,
warrants or other instruments or documents representing rights to
receive, purchase or subscribe for the same, or evidencing or
representing any other rights or interests therein, or any similar
property or assets that the Custodian or its agents have the
facilities to clear and service.
1.16 "Securities Depository" shall mean The Depository Trust Company and
any other clearing agency registered with the SEC under Section 17A of
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
which acts as a system for the central handling of Securities where
all Securities of any particular class or series of an issuer
deposited within the system are treated as fungible and may be
transferred or pledged by bookkeeping entry without physical delivery
of the Securities.
1.17 "Shares" shall mean, with respect to a Series, the units of beneficial
interest issued by the Fund on account of the Series.
1.18 "Sub-Custodian" shall mean and include (i) any branch of a "U.S.
bank," as that term is defined in Rule 17f-5 under the 1940 Act, and
(ii) any "Eligible Foreign Custodian" having a contract with the
Custodian, or its agent, which the Custodian has determined will
provide reasonable care of assets of the Series based on the standards
specified in Section 3.3 below. Such contract shall be in writing and
shall include provisions that provide: (i) for indemnification or
insurance arrangements (or any combination of the foregoing) such that
the Series will be adequately protected against the risk of loss of
assets held in accordance with such contract; (ii) that the Foreign
Securities will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of the Sub-Custodian or
its creditors except a claim of payment for their safe custody or
administration, in the case of cash deposits, liens or rights in favor
of creditors of the Sub-Custodian arising under bankruptcy,
insolvency, or similar laws; (iii) that beneficial ownership for the
Foreign Securities will be freely transferable without the payment of
money or value other than for safe custody or administration; (iv)
that adequate records will be maintained identifying the assets as
belonging to the Series or as being held by a third party for the
benefit of the Series; (v) that the Series' independent public
accountants will be given access to those records or confirmation of
the contents of those records; and (vi) that the Series will receive
periodic reports with respect to the safekeeping of the Series'
assets, including, but not limited to, notification of any transfer to
or from a Series' account or a third party account containing assets
held for the benefit of the Series. Such contract may contain, in lieu
of any or all of the provisions specified in (i)-(vi) above, such
other provisions that the Custodian determines will provide, in their
entirety, the same or a greater level of care and protection for
Series assets as the specified provisions.
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1.19 "Written Instructions" shall mean (i) written communications actually
received by the Custodian and signed by any two Authorized Persons,
(ii) communications by telex or any other such system from one or more
persons reasonably believed by the Custodian to be Authorized Persons,
or (iii) communications between electro-mechanical or electronic
devices provided that the use of such devices and the procedures for
the use thereof shall have been approved by resolutions of the Board,
a copy of which, certified by an Officer, shall have been delivered to
the Custodian.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Fund hereby appoints the Custodian as custodian of
all Securities and cash owned by or in the possession of the Series at
any time during the period of this Agreement, on the terms and
conditions set forth in this Agreement, and the Custodian hereby
accepts such appointment and agrees to perform the services and duties
set forth in this Agreement. The Fund hereby delegates to the
Custodian, subject to Rule 17f-5(b), the responsibilities with respect
to the Series' Foreign Securities, and the Custodian hereby accepts
such delegation as foreign custody manager with respect to the Series.
The services and duties of the Custodian shall be confined to those
matters expressly set forth herein, and no implied duties are assumed
by or may be asserted against the Custodian hereunder.
2.2 Documents to be Furnished. The following documents, including any
amendments thereto, will be provided contemporaneously with the
execution of the Agreement to the Custodian by the Fund:
(a) A copy of the Fund's articles of incorporation, certified by the
Secretary;
(b) A copy of the Fund's bylaws, certified by the Secretary;
(c) A copy of the resolution of the Board appointing the Custodian,
certified by the Secretary;
(d) A copy of the current prospectus of the Series (the
"Prospectus");
(e) A certification of the Chairman, the President, or the Secretary
of the Fund setting forth the names and signatures of the current
Officers of the Fund and other Authorized Persons; and
(f) An executed authorization required by the Shareholder
Communications Act of 1985, attached hereto as Exhibit E.
2.3 Notice of Appointment of Transfer Agent. The Fund agrees to notify the
Custodian in writing of the appointment, termination or change in
appointment of any transfer agent of the Series.
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ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the
Custodian for the account of the Series (other than Securities
maintained in a Securities Depository, Eligible Securities Depository
or Book-Entry System) shall be physically segregated from other
Securities and non-cash property in the possession of the Custodian
(including the Securities and non-cash property of the other series of
the Fund, if applicable) and shall be identified as subject to this
Agreement.
3.2 Series Custody Accounts. As to each Series, the Custodian shall open
and maintain in its trust department a custody account in the name of
the Fund coupled with the name of the Series, subject only to draft or
order of the Custodian, in which the Custodian shall enter and carry
all Securities, cash and other assets of such Series which are
delivered to it.
3.3 Appointment of Agents.
(a) In its discretion, the Custodian may appoint one or more
Sub-Custodians to establish and maintain arrangements with (i)
Eligible Securities Depositories or (ii) Eligible Foreign
Custodians who are members of the Sub-Custodian's network to hold
Securities and cash of the Series and to carry out such other
provisions of this Agreement as it may determine; provided,
however, that the appointment of any such agents and maintenance
of any Securities and cash of the Series shall be at the
Custodian's expense and shall not relieve the Custodian of any of
its obligations or liabilities under this Agreement. The
Custodian shall be liable for the actions of any Sub-Custodians
(regardless of whether assets are maintained in the custody of a
Sub-Custodian, a member of its network or an Eligible Securities
Depository) appointed by it as if such actions had been done by
the Custodian.
(b) If, after the initial appointment of Sub-Custodians by the Board
in connection with this Agreement, the Custodian wishes to
appoint other Sub-Custodians to hold property of the Series, it
will so notify the Fund and make the necessary determinations as
to any such new Sub-Custodian's eligibility under Rule 17f-5
under the 1940 Act.
(c) In performing its delegated responsibilities as foreign custody
manager to place or maintain the Series' assets with a
Sub-Custodian, the Custodian will determine that the Series'
assets will be subject to reasonable care, based on the standards
applicable to custodians in the country in which the Series'
assets will be held by that Sub-Custodian, after considering all
factors relevant to safekeeping of such assets, including,
without limitation the factors specified in Rule 17f-5(c)(1).
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(d) The agreement between the Custodian and each Sub-Custodian acting
hereunder shall contain the required provisions set forth in Rule
17f-5(c)(2) under the 1940 Act.
(e) At the end of each calendar quarter, the Custodian shall provide
written reports notifying the Board of the withdrawal or
placement of the Securities and cash of the Series with a
Sub-Custodian and of any material changes in the Series'
arrangements. Such reports shall include an analysis of the
custody risks associated with maintaining assets with any
Eligible Securities Depositories. The Custodian shall promptly
take such steps as may be required to withdraw assets of the
Series from any Sub-Custodian arrangement that has ceased to meet
the requirements of Rule 17f-5 or Rule 17f-7 under the 1940 Act,
as applicable.
(f) With respect to its responsibilities under this Section 3.3, the
Custodian hereby warrants to the Fund that it agrees to exercise
reasonable care, prudence and diligence such as a person having
responsibility for the safekeeping of property of the Series. The
Custodian further warrants that the Series' assets will be
subject to reasonable care if maintained with a Sub-Custodian,
after considering all factors relevant to the safekeeping of such
assets, including, without limitation: (i) the Sub-Custodian's
practices, procedures, and internal controls for certificated
securities (if applicable), its method of keeping custodial
records, and its security and data protection practices; (ii)
whether the Sub-Custodian has the requisite financial strength to
provide reasonable care for Series assets; (iii) the
Sub-Custodian's general reputation and standing and, in the case
of a Securities Depository, the Securities Depository's operating
history and number of participants; and (iv) whether the Series
will have jurisdiction over and be able to enforce judgments
against the Sub-Custodian, such as by virtue of the existence of
any offices of the Sub-Custodian in the United States or the
Sub-Custodian's consent to service of process in the United
States.
(g) The Custodian shall establish a system or ensure that its
Sub-Custodian has established a system to monitor on a continuing
basis (i) the appropriateness of maintaining the Series' assets
with a Sub-Custodian or Eligible Foreign Custodians who are
members of a Sub-Custodian's network; (ii) the performance of the
contract governing the Series' arrangements with such
Sub-Custodian or Eligible Foreign Custodian's members of a
Sub-Custodian's network; and (iii) the custody risks of
maintaining assets with an Eligible Securities Depository. The
Custodian must promptly notify the Series or its investment
adviser of any material change in these risks.
(h) The Custodian shall use reasonable commercial efforts to collect
all income and other payments with respect to Foreign Securities
to which the Series shall be entitled and shall credit such
income, as collected, to the Fund. In the event that
extraordinary measures are required to collect such income,
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the Fund and Custodian shall consult as to the measurers and as
to the compensation and expenses of the Custodian relating to
such measures.
3.4 Delivery of Assets to Custodian. The Fund shall deliver, or cause to
be delivered, to the Custodian all of the Series' Securities, cash and
other investment assets, including (i) all payments of income,
payments of principal and capital distributions received by the Series
with respect to such Securities, cash or other assets owned by the
Series at any time during the period of this Agreement, and (ii) all
cash received by the Series for the issuance of Shares. The Custodian
shall not be responsible for such Securities, cash or other assets
until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Series in a Securities
Depository or in a Book-Entry System, subject to the following
provisions:
(a) The Custodian, on an on-going basis, shall deposit in a
Securities Depository or Book-Entry System all Securities
eligible for deposit therein and shall make use of such
Securities Depository or Book-Entry System to the extent possible
and practical in connection with its performance hereunder,
including, without limitation, in connection with settlements of
purchases and sales of Securities, loans of Securities, and
deliveries and returns of collateral consisting of Securities.
(b) Securities of the Series kept in a Book-Entry System or
Securities Depository shall be kept in an account ("Depository
Account") of the Custodian in such Book-Entry System or
Securities Depository which includes only assets held by the
Custodian as a fiduciary, custodian or otherwise for customers.
(c) The records of the Custodian with respect to Securities of the
Series maintained in a Book-Entry System or Securities Depository
shall, by book-entry, identify such Securities as belonging to
the Series.
(d) If Securities purchased by the Series are to be held in a
Book-Entry System or Securities Depository, the Custodian shall
pay for such Securities upon (i) receipt of advice from the
Book-Entry System or Securities Depository that such Securities
have been transferred to the Depository Account, and (ii) the
making of an entry on the records of the Custodian to reflect
such payment and transfer for the account of the Series. If
Securities sold by the Series are held in a Book-Entry System or
Securities Depository, the Custodian shall transfer such
Securities upon (i) receipt of advice from the Book-Entry System
or Securities Depository that payment for such Securities has
been transferred to the Depository Account, and (ii) the making
of an entry on the records of the Custodian to reflect such
transfer and payment for the account of the Series.
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(e) The Custodian shall provide the Fund with copies of any report
(obtained by the Custodian from a Book-Entry System or Securities
Depository in which Securities of the Series are kept) on the
internal accounting controls and procedures for safeguarding
Securities deposited in such Book-Entry System or Securities
Depository.
(f) Notwithstanding anything to the contrary in this Agreement, the
Custodian shall be liable to the Fund for any loss or damage to
the Series resulting from (i) the use of a Book-Entry System or
Securities Depository by reason of any negligence or willful
misconduct on the part of the Custodian or any Sub-Custodian, or
(ii) failure of the Custodian or any Sub-Custodian to enforce
effectively such rights as it may have against a Book-Entry
System or Securities Depository. At its election, the Fund shall
be subrogated to the rights of the Custodian with respect to any
claim against a Book-Entry System or Securities Depository or any
other person from any loss or damage to the Series arising from
the use of such Book-Entry System or Securities Depository, if
and to the extent that the Series has not been made whole for any
such loss or damage.
(g) With respect to its responsibilities under this Section 3.5 and
pursuant to Rule 17f-4 under the 1940 Act, the Custodian hereby
warrants to the Fund that it agrees to (i) exercise due care in
accordance with reasonable commercial standards in discharging
its duty as a securities intermediary to obtain and thereafter
maintain such assets, (ii) provide, promptly upon request by the
Fund, such reports as are available concerning the Custodian's
internal accounting controls and financial strength, and (iii)
require any Sub-Custodian to exercise due care in accordance with
reasonable commercial standards in discharging its duty as a
securities intermediary to obtain and thereafter maintain assets
corresponding to the security entitlements of its entitlement
holders.
3.6 Disbursement of Moneys from Series Custody Account. Upon receipt of
Proper Instructions, the Custodian shall disburse moneys from the
Series Custody Account but only in the following cases:
(a) For the purchase of Securities for the Series but only in
accordance with Section 4.1 of this Agreement and only (i) in the
case of Securities (other than options on Securities, futures
contracts and options on futures contracts), against the delivery
to the Custodian (or any Sub-Custodian) of such Securities
registered as provided in Section 3.9 below or in proper form for
transfer, or if the purchase of such Securities is effected
through a Book-Entry System or Securities Depository, in
accordance with the conditions set forth in Section 3.5 above;
(ii) in the case of options on Securities, against delivery to
the Custodian (or any Sub-Custodian) of such receipts as are
required by the customs prevailing among dealers in such options;
(iii) in the case of futures contracts and options on futures
contracts, against delivery to the Custodian (or any
Sub-Custodian) of evidence of title thereto
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in favor of the Series or any nominee referred to in Section 3.9
below; and (iv) in the case of repurchase or reverse repurchase
agreements entered into between the Fund and a bank which is a
member of the Federal Reserve System or between the Fund and a
primary dealer in U.S. Government securities, against delivery of
the purchased Securities either in certificate form or through an
entry crediting the Custodian's account at a Book-Entry System or
Securities Depository with such Securities;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.7(f) below, of Securities owned by the Series;
(c) For the payment of any dividends or capital gain distributions
declared by the Series;
(d) In payment of the redemption price of Shares as provided in
Section 5.1 below;
(e) For the payment of any expense or liability incurred by the
Series, including, but not limited to, the following payments for
the account of the Series: interest; taxes; administration,
investment advisory, accounting, auditing, transfer agent,
custodian, director and legal fees; and other operating expenses
of the Series; in all cases, whether or not such expenses are to
be in whole or in part capitalized or treated as deferred
expenses;
(f) For transfer in accordance with the provisions of any agreement
among the Fund, the Custodian and a broker-dealer registered
under the 1934 Act and a member of the NASD, relating to
compliance with rules of the Options Clearing Corporation and of
any registered national securities exchange (or of any similar
organization or organizations) regarding escrow or other
arrangements in connection with transactions by the Series;
(g) For transfer in accordance with the provisions of any agreement
among the Fund, the Custodian and a futures commission merchant
registered under the Commodity Exchange Act, relating to
compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market (or any similar
organization or organizations) regarding account deposits in
connection with transactions by the Series;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including
the Custodian), which deposit or account has a term of one year
or less; and
(i) For any other proper purpose, but only upon receipt, in addition
to Proper Instructions, of a copy of a resolution of the Board,
certified by an Officer, specifying the amount and purpose of
such payment, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such payment is
to be made.
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3.7 Delivery of Securities from Series Custody Account. Upon receipt of
Proper Instructions, the Custodian shall release and deliver, or cause
the Sub-Custodian to release and deliver, Securities from the Series
Custody Account but only in the following cases:
(a) Upon the sale of Securities for the account of the Series but
only against receipt of payment therefor in cash, by certified or
cashiers check or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of
Section 3.5 above;
(c) To an offeror's depository agent in connection with tender or
other similar offers for Securities of the Series; provided that,
in any such case, the cash or other consideration is to be
delivered to the Custodian;
(d) To the issuer thereof or its agent (i) for transfer into the name
of the Series, the Custodian or any Sub-Custodian, or any nominee
or nominees of any of the foregoing, or (ii) for exchange for a
different number of certificates or other evidence representing
the same aggregate face amount or number of units; provided that,
in any such case, the new Securities are to be delivered to the
Custodian;
(e) To the broker selling the Securities, for examination in
accordance with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment
of the issuer of such Securities, or pursuant to provisions for
conversion contained in such Securities, or pursuant to any
deposit agreement, including surrender or receipt of underlying
Securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new
Securities and cash, if any, are to be delivered to the
Custodian;
(g) Upon receipt of payment therefor pursuant to any repurchase or
reverse repurchase agreement entered into by the Series;
(h) In the case of warrants, rights or similar Securities, upon the
exercise thereof, provided that, in any such case, the new
Securities and cash, if any, are to be delivered to the
Custodian;
(i) For delivery in connection with any loans of Securities of the
Series, but only against receipt of such collateral as the Fund
shall have specified to the Custodian in Proper Instructions;
(j) For delivery as security in connection with any borrowings by the
Series requiring a pledge of assets by the Fund, but only against
receipt by the Custodian of the amounts borrowed;
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(k) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the Fund;
(l) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian and a broker-dealer registered
under the 1934 Act and a member of the NASD, relating to
compliance with the rules of the Options Clearing Corporation and
of any registered national securities exchange (or of any similar
organization or organizations) regarding escrow or other
arrangements in connection with transactions by the Series;
(m) For delivery in accordance with the provisions of any agreement
among the Fund, the Custodian and a futures commission merchant
registered under the Commodity Exchange Act, relating to
compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market (or any similar
organization or organizations) regarding account deposits in
connection with transactions by the Series;
(n) For any other proper corporate purpose, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of the
Board, certified by an Officer, 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 corporate
purpose, and naming the person or persons to whom delivery of
such Securities shall be made; or
(o) To brokers, clearing banks or other clearing agents for
examination or trade execution in accordance with market custom;
provided that in any such case the Custodian shall have no
responsibility or liability for any loss arising from the
delivery of such securities prior to receiving payment for such
securities except as may arise from the Custodian's own
negligence or willful misconduct.
3.8 Actions Not Requiring Proper Instructions. Unless otherwise instructed
by the Fund, the Custodian shall with respect to all Securities held
for the Series:
(a) Subject to Section 9.4 below, collect on a timely basis all
income and other payments to which the Series is entitled either
by law or pursuant to custom in the securities business;
(b) Present for payment and, subject to Section 9.4 below, collect on
a timely basis the amount payable upon all Securities which may
mature or be called, redeemed, or retired, or otherwise become
payable;
(c) Endorse for collection, in the name of the Series, checks, drafts
and other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
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(e) Execute, as custodian, 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 prepare and submit reports to the IRS and the Fund at
such time, in such manner and containing such information as is
prescribed by the IRS;
(f) Hold for the Series, either directly or, with respect to
Securities held therein, through a Book-Entry System or
Securities Depository, all rights and similar Securities issued
with respect to Securities of the Series; and
(g) In general, and except as otherwise directed in Proper
Instructions, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with Securities and other assets of
the Series.
3.9 Registration and Transfer of Securities. All Securities held for the
Series that are issued or issuable only in bearer form shall be held
by the Custodian in that form, provided that any such Securities shall
be held in a Book-Entry System if eligible therefor. All other
Securities held for the Series may be registered in the name of the
Series, the Custodian, a Sub-Custodian or any nominee thereof, or in
the name of a Book-Entry System, Securities Depository or any nominee
of either thereof. The records of the Custodian with respect to
foreign securities of the Series that are maintained with a
Sub-Custodian in an account that is identified as belonging to the
Custodian for the benefit of its customers shall identify those
securities as belonging to the Series. The Fund shall 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 any
of the nominees referred to above or in the name of a Book-Entry
System or Securities Depository, any Securities registered in the name
of the Series.
3.10 Records.
(a) The Custodian shall maintain complete and accurate records with
respect to Securities, cash or other property held for the
Series, including (i) journals or other records of original entry
containing an itemized daily record in detail of all receipts and
deliveries of Securities and all receipts and disbursements of
cash; (ii) ledgers (or other records) reflecting (A) Securities
in transfer, (B) Securities in physical possession, (C) monies
and Securities borrowed and monies and Securities loaned
(together with a record of the collateral therefor and
substitutions of such collateral), (D) dividends and interest
received, and (E) dividends receivable and interest receivable;
(iii) canceled checks and bank records related thereto; and (iv)
all records relating to its activities and obligations under this
Agreement. The Custodian shall keep such other books and records
of the Series as the Fund shall reasonably request, or as may be
required by the 1940 Act, including, but not limited to, Section
31 of the 1940 Act and Rule 31a-2 promulgated thereunder.
12
(b) All such books and records maintained by the Custodian shall (i)
be maintained in a form acceptable to the Fund and in compliance
with the rules and regulations of the SEC, (ii) be the property
of the Fund and at all times during the regular business hours of
the Custodian be made available upon request for inspection by
duly authorized officers, employees or agents of the Fund and
employees or agents of the SEC, and (iii) if required to be
maintained by Rule 31a-1 under the 1940 Act, be preserved for the
periods prescribed in Rules 31a-1 and 31a-2 under the 1940 Act.
3.11 Series Reports by Custodian. The Custodian shall furnish the Fund with
a daily activity statement and a summary of all transfers to or from
each Series Custody Account on the day following such transfers. At
least monthly, the Custodian shall furnish the Fund with a detailed
statement of the Securities and moneys held by the Custodian and the
Sub-Custodians for the Series under this Agreement.
3.12 Other Reports by Custodian. As the Fund may reasonably request from
time to time, the Custodian shall provide the Fund with reports on the
internal accounting controls and procedures for safeguarding
Securities which are employed by the Custodian or any Sub-Custodian.
3.13 Proxies and Other Materials. The Custodian shall cause all proxies
relating to Securities which are not registered in the name of the
Series to be promptly executed by the registered holder of such
Securities, without indication of the manner in which such proxies are
to be voted, and shall promptly deliver to the Fund such proxies, all
proxy soliciting materials and all notices relating to such
Securities. With respect to the Foreign Securities, the Custodian will
use reasonable commercial efforts to facilitate the exercise of voting
and other shareholder rights, subject to the laws, regulations and
practical constraints that may exist in the country where such
securities are issued. The Fund acknowledges that local conditions,
including lack of regulation, onerous procedural obligations, lack of
notice and other factors may have the effect of severely limiting the
ability of the Fund to exercise shareholder rights.
3.14 Information on Corporate Actions. The Custodian shall promptly deliver
to the Fund all information received by the Custodian and pertaining
to Securities being held by the Series with respect to optional tender
or exchange offers, calls for redemption or purchase, or expiration of
rights as described in the Standards of Service Guide attached as
Exhibit B. If the Fund desires to take action with respect to any
tender offer, exchange offer or other similar transaction, the Fund
shall notify the Custodian at least five Business Days prior to the
date on which the Custodian is to take such action. The Fund will
provide or cause to be provided to the Custodian all relevant
information for any Security which has unique put/option provisions at
least five Business Days prior to the beginning date of the tender
period.
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ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE SERIES
4.1 Purchase of Securities. Promptly upon each purchase of Securities for
the Series, Written Instructions shall be delivered to the Custodian,
specifying (i) the name of the issuer or writer of such Securities,
and the title or other description thereof, (ii) the number of shares,
principal amount (and accrued interest, if any) or other units
purchased, (iii) the date of purchase and settlement, (iv) the
purchase price per unit, (v) the total amount payable upon such
purchase, and (vi) the name of the person to whom such amount is
payable. The Custodian shall upon receipt of such Securities purchased
by the Series pay out of the moneys held for the account of the Series
the total amount specified in such Written Instructions to the person
named therein. The Custodian shall not be under any obligation to pay
out moneys to cover the cost of a purchase of Securities for the
Series, if in the Series Custody Account there is insufficient cash
available to the Series for which such purchase was made.
4.2 Liability for Payment in Advance of Receipt of Securities Purchased.
In any and every case where payment for the purchase of Securities for
the Series is made by the Custodian in advance of receipt of the
Securities purchased and in the absence of specified Written
Instructions to so pay in advance, the Custodian shall be liable to
the Series for such payment.
4.3 Sale of Securities. Promptly upon each sale of Securities by the
Series, Written Instructions shall be delivered to the Custodian,
specifying (i) the name of the issuer or writer of such Securities,
and the title or other description thereof, (ii) the number of shares,
principal amount (and accrued interest, if any), or other units sold,
(iii) the date of sale and settlement, (iv) the sale price per unit,
(v) the total amount payable upon such sale, and (vi) the person to
whom such Securities are to be delivered. Upon receipt of the total
amount payable to the Series as specified in such Written
Instructions, the Custodian shall deliver such Securities to the
person specified in such Written 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.
4.4 Delivery of Securities Sold. Notwithstanding Section 4.3 above or any
other provision of this Agreement, the Custodian, when instructed to
deliver Securities against payment, shall be entitled, if in
accordance with generally accepted market practice, to deliver such
Securities prior to actual receipt of final payment therefor. In any
such case, the Series shall bear the risk that final payment for such
Securities may not be made or that such Securities may be returned or
otherwise held or disposed of by or through the person to whom they
were delivered, and the Custodian shall have no liability for any for
the foregoing.
4.5 Payment for Securities Sold. In its sole discretion and from time to
time, the Custodian may credit the Series Custody Account, prior to
actual receipt of final
14
payment thereof, with (i) proceeds from the sale of Securities which
it has been instructed to deliver against payment, (ii) proceeds from
the redemption of Securities or other assets of the Series, and (iii)
income from cash, Securities or other assets of the Series. Any such
credit shall be conditional upon actual receipt by Custodian of final
payment and may be reversed if final payment is not actually received
in full. The Custodian may, in its sole discretion and from time to
time, permit the Series to use funds so credited to the Series Custody
Account in anticipation of actual receipt of final payment. Any such
funds shall be repayable immediately upon demand made by the Custodian
at any time prior to the actual receipt of all final payments in
anticipation of which funds were credited to the Series Custody
Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Fund to
facilitate the settlement of a Series' transactions in the Series
Custody Account. Any such advance shall be repayable immediately upon
demand made by Custodian.
ARTICLE V
REDEMPTION OF SERIES SHARES
5.1 Transfer of Funds. From such funds as may be available for the purpose
in the relevant Series Custody Account, and upon receipt of Proper
Instructions specifying that the funds are required to redeem Shares
of the Series, the Custodian shall wire each amount specified in such
Proper Instructions to or through such bank or broker-dealer as the
Fund may designate.
5.2 No Duty Regarding Paying Banks. Once the Custodian has wired amounts
to a bank or broker-dealer pursuant to Section 5.1 above, the
Custodian shall not be under any obligation to effect any further
payment or distribution by such bank or broker-dealer.
ARTICLE VI
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions, the Custodian shall establish and
maintain a segregated account or accounts for and on behalf of the Series, into
which account or accounts may be transferred cash and/or Securities, including
Securities maintained in a Depository Account:
(a) in accordance with the provisions of any agreement among the
Fund, the Custodian and a broker-dealer registered under the 1934
Act and a member of the NASD (or any futures commission merchant
registered under the Commodity Exchange Act), relating to
compliance with the rules of the Options Clearing Corporation and
of any registered national securities exchange (or the Commodity
Futures Trading Commission or any registered contract market), or
of any similar organization or organizations, regarding escrow or
other arrangements in connection with transactions by the Series;
15
(b) for purposes of segregating cash or Securities in connection with
securities options purchased or written by the Series or in
connection with financial futures contracts (or options thereon)
purchased or sold by the Series;
(c) which constitute collateral for loans of Securities made by the
Series;
(d) for purposes of compliance by the Series with requirements under
the 1940 Act for the maintenance of segregated accounts by
registered investment companies in connection with reverse
repurchase agreements and when-issued, delayed delivery and firm
commitment transactions; and
(e) for other proper corporate purposes, but only upon receipt of, in
addition to Proper Instructions, a certified copy of a resolution
of the Board, certified by an Officer, setting forth the purpose
or purposes of such segregated account and declaring such
purposes to be proper corporate purposes.
Each segregated account established under this Article VI shall be
established and maintained for the Series only. All Proper Instructions relating
to a segregated account shall specify the Series.
ARTICLE VII
COMPENSATION OF CUSTODIAN
The Custodian shall be compensated for providing the services set forth in
this Agreement in accordance with the fee schedule set forth on Exhibit D hereto
(as amended from time to time). The Custodian shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by the Custodian
in performing its duties hereunder. The Fund shall pay all such fees and
reimbursable expenses within 30 calendar days following receipt of the billing
notice, except for any fee or expense subject to a good faith dispute. The Fund
shall notify the Custodian in writing within 30 calendar days following receipt
of each invoice if the Fund is disputing any amounts in good faith. The Fund
shall pay such disputed amounts within 10 calendar days of the day on which the
parties agree to the amount to be paid. With the exception of any fee or expense
the Fund is disputing in good faith as set forth above, unpaid invoices shall
accrue a finance charge of 1 1/2% per month after the due date. Notwithstanding
anything to the contrary, amounts owed by the Fund to the Custodian shall only
be paid out of the assets and property of the particular Series involved.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
8.1 Representations and Warranties of the Fund. The Fund hereby represents
and warrants to the Custodian, which representations and warranties
shall be deemed to be continuing throughout the term of this
Agreement, that:
16
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by the Fund in accordance with all requisite action and
constitutes a valid and legally binding obligation of the Fund,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and
secured parties; and
(c) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement.
8.2 Representations and Warranties of the Custodian. The Custodian hereby
represents and warrants to the Fund, which representations and
warranties shall be deemed to be continuing throughout the term of
this Agreement, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its
business as now conducted, to enter into this Agreement and to
perform its obligations hereunder;
(b) It is a U.S. Bank as defined in section (a)(7) of Rule 17f-5.
(c) This Agreement has been duly authorized, executed and delivered
by the Custodian in accordance with all requisite action and
constitutes a valid and legally binding obligation of the
Custodian, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting the rights and remedies of
creditors and secured parties; and
(d) It is conducting its business in compliance in all material
respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory approvals necessary to
carry on its business as now conducted; there is no statute,
rule, regulation, order or judgment binding on it and no
provision of its charter, bylaws or any contract binding it or
affecting its property which would prohibit its execution or
performance of this Agreement.
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ARTICLE IX
CONCERNING THE CUSTODIAN
9.1 Standard of Care. The Custodian shall exercise reasonable care in the
performance of its duties under this Agreement. The Custodian shall
not be liable for any error of judgment or mistake of law or for any
loss suffered by the Fund in connection with its duties under this
Agreement, except a loss arising out of or relating to the Custodian's
(or a Sub-Custodian's) refusal or failure to comply with the terms of
this Agreement (or any sub-custody agreement) or from its (or a
Sub-Custodian's) bad faith, negligence or willful misconduct in the
performance of its duties under this Agreement (or any sub-custody
agreement). The Custodian shall be entitled to rely on and may act
upon advice of counsel on all matters, and shall be without liability
for any action reasonably taken or omitted pursuant to such advice.
The Custodian shall promptly notify the Fund of any action taken or
omitted by the Custodian pursuant to advice of counsel.
9.2 Actual Collection Required. The Custodian shall not be liable for, or
considered to be the custodian of, any cash belonging to the Series or
any money represented by a check, draft or other instrument for the
payment of money, until the Custodian or its agents actually receive
such cash or collect on such instrument.
9.3 No Responsibility for Title, etc. So long as and to the extent that it
is in the exercise of reasonable care, the Custodian shall not be
responsible for the title, validity or genuineness of any property or
evidence of title thereto received or delivered by it pursuant to this
Agreement.
9.4 Limitation on Duty to Collect. Custodian shall not be required to
enforce collection, by legal means or otherwise, of any money or
property due and payable with respect to Securities held for the
Series if such Securities are in default or payment is not made after
due demand or presentation.
9.5 Reliance Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument in
writing received by it and reasonably believed by it to be genuine.
The Custodian shall be entitled to rely upon any Oral Instructions and
any Written Instructions actually received by it pursuant to this
Agreement.
9.6 Cooperation. The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Fund to keep
the books of account of the Series and/or compute the value of the
assets of the Series. The Custodian shall take all such reasonable
actions as the Fund may from time to time request to enable the Fund
to obtain, from year to year, favorable opinions from the Fund's
independent accountants with respect to the Custodian's activities
hereunder in connection with (i) the preparation of the Fund's reports
on Form N-1A and Form N-SAR and any other reports required by the SEC,
and (ii) the fulfillment by the Fund of any other requirements of the
SEC.
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ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Fund. The Fund shall indemnify and hold harmless
the Custodian, any Sub-Custodian and any nominee thereof (each, an
"Indemnified Party" and collectively, the "Indemnified Parties") from
and against any and all claims, demands, losses, expenses and
liabilities of any and every nature (including reasonable attorneys'
fees) that an Indemnified Party may sustain or incur or that may be
asserted against an Indemnified Party by any person arising directly
or indirectly (i) from the fact that Securities are registered in the
name of any such nominee, (ii) from any action taken or omitted to be
taken by the Custodian or such Sub-Custodian (a) at the request or
direction of or in reliance on the advice of the Fund, or (b) upon
Proper Instructions, or (iii) from the performance of its obligations
under this Agreement or any sub-custody agreement, provided that
neither the Custodian nor any such Sub-Custodian shall be indemnified
and held harmless from and against any such claim, demand, loss,
expense or liability arising out of or relating to its refusal or
failure to comply with the terms of this Agreement (or any sub-custody
agreement), or from its bad faith, negligence or willful misconduct in
the performance of its duties under this Agreement (or any sub-custody
agreement). This indemnity shall be a continuing obligation of the
Fund, its successors and assigns, notwithstanding the termination of
this Agreement. As used in this paragraph, the terms "Custodian" and
"Sub-Custodian" shall include their respective directors, officers and
employees.
10.2 Indemnification by Custodian. The Custodian shall indemnify and hold
harmless the Fund from and against any and all claims, demands,
losses, expenses, and liabilities of any and every nature (including
reasonable attorneys' fees) that the Fund may sustain or incur or that
may be asserted against the Fund by any person arising directly or
indirectly out of any action taken or omitted to be taken by an
Indemnified Party as a result of the Indemnified Party's refusal or
failure to comply with the terms of this Agreement (or any sub-custody
agreement), or from its bad faith, negligence or willful misconduct in
the performance of its duties under this Agreement (or any sub-custody
agreement). This indemnity shall be a continuing obligation of the
Custodian, its successors and assigns, notwithstanding the termination
of this Agreement. As used in this paragraph, the term "Fund" shall
include the Fund's directors, officers and employees.
10.3 Security. If the Custodian advances cash or Securities to the Series
for any purpose, either at the Fund's request or as otherwise
contemplated in this Agreement, or in the event that the Custodian or
its nominee incurs, in connection with its performance under this
Agreement, any claim, demand, loss, expense or liability (including
reasonable attorneys' fees) (except such as may arise from its or its
nominee's bad faith, negligence or willful misconduct), then, in any
such event, any property at any time held for the account of the
Series shall be security therefor, and should the Series fail promptly
to repay or indemnify the Custodian, the Custodian shall be entitled
to utilize available cash of such Series and to
19
dispose of other assets of such Series to the extent necessary to
obtain reimbursement or indemnification.
10.4 Miscellaneous.
(a) Neither party to this Agreement shall be liable to the other
party for consequential, special or punitive damages under any
provision of this Agreement.
(b) The indemnity provisions of this Article shall indefinitely
survive the termination and/or assignment of this Agreement.
(c) In order that the indemnification provisions contained in this
Article shall apply, it is understood that if in any case the
indemnitor may be asked to indemnify or hold the indemnitee
harmless, the indemnitor shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it
is further understood that the indemnitee will use all reasonable
care to notify the indemnitor promptly concerning any situation
that presents or appears likely to present the probability of a
claim for indemnification. The indemnitor shall have the option
to defend the indemnitee against any claim that may be the
subject of this indemnification. In the event that the indemnitor
so elects, it will so notify the indemnitee and thereupon the
indemnitor shall take over complete defense of the claim, and the
indemnitee shall in such situation initiate no further legal or
other expenses for which it shall seek indemnification under this
section. The indemnitee shall in no case confess any claim or
make any compromise in any case in which the indemnitor will be
asked to indemnify the indemnitee except with the indemnitor's
prior written consent.
ARTICLE XI
FORCE MAJEURE
Neither the Custodian nor the Fund shall be liable for any failure or delay
in performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; acts of terrorism; sabotage; strikes; epidemics;
riots; power failures; computer failure and any such circumstances beyond its
reasonable control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes; acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that in the event of a failure or delay, the
Custodian (i) shall not discriminate against the Series in favor of any other
customer of the Custodian in making computer time and personnel available to
input or process the transactions contemplated by this Agreement, and (ii) shall
use its best efforts to ameliorate the effects of any such failure or delay.
20
ARTICLE XII
PROPRIETARY AND CONFIDENTIAL INFORMATION
The Custodian agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the Fund,
all records and other information relative to the Fund and prior, present, or
potential shareholders of the Fund (and clients of said shareholders), and not
to use such records and information for any purpose other than the performance
of its responsibilities and duties hereunder, except (i) after prior
notification to and approval in writing by the Fund, which approval shall not be
unreasonably withheld and may not be withheld where the Custodian may be exposed
to civil or criminal contempt proceedings for failure to comply, (ii) when
requested to divulge such information by duly constituted authorities, or (iii)
when so requested by the Fund. Records and other information which have become
known to the public through no wrongful act of the Custodian or any of its
employees, agents or representatives, and information that was already in the
possession of the Custodian prior to receipt thereof from the Fund or its agent,
shall not be subject to this paragraph.
Further, the Custodian will adhere to the privacy policies adopted by the
Fund pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from
time to time. In this regard, the Custodian shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of, records and information relating to the Fund and its
shareholders.
ARTICLE XIII
EFFECTIVE PERIOD; TERMINATION
13.1 Effective Period. This Agreement shall become effective as of the date
first written above and will continue in effect for a period of one
year.
13.2 Termination. Subsequent to the initial one-year term, this Agreement
may be terminated by either party upon giving 90 days prior written
notice to the other party or such shorter period as is mutually agreed
upon by the parties. Notwithstanding the foregoing, this Agreement may
be terminated by any party upon the breach of the other party of any
material term of this Agreement if such breach is not cured within 15
days of notice of such breach to the breaching party. In addition, the
Fund may, at any time, immediately terminate this Agreement in the
event of the appointment of a conservator or receiver for the
Custodian by regulatory authorities or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of
competent jurisdiction.
13.3 Appointment of Successor Custodian. If a successor custodian shall
have been appointed by the Board, the Custodian shall, upon receipt of
a notice of acceptance by the successor custodian, on such specified
date of termination (i) deliver directly to the successor custodian
all Securities (other than Securities held in a Book-Entry System or
Securities Depository) and cash then owned by the Series and held by
the Custodian as custodian, and (ii) transfer any Securities held in a
Book-Entry System or Securities Depository to an account of or for the
21
benefit of the Series at the successor custodian, provided that the
Fund shall have paid to the Custodian all fees, expenses and other
amounts to the payment or reimbursement of which it shall then be
entitled. In addition, the Custodian shall, at the expense of the
Fund, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by the
Custodian under this Agreement in a form reasonably acceptable to the
Fund (if such form differs from the form in which the Custodian has
maintained the same, the Fund shall pay any expenses associated with
transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including provision for
assistance from the Custodian's personnel in the establishment of
books, records, and other data by such successor. Upon such delivery
and transfer, the Custodian shall be relieved of all obligations under
this Agreement.
13.4 Failure to Appoint Successor Custodian. If a successor custodian is
not designated by the Fund on or before the date of termination of
this Agreement, then the Custodian shall have the right to deliver to
a bank or trust company of its own selection, which bank or trust
company (i) is a "bank" as defined in the 1940 Act, and (ii) has
aggregate capital, surplus and undivided profits as shown on its most
recent published report of not less than $25 million, all Securities,
cash and other property held by Custodian under this Agreement and to
transfer to an account of or for the Series at such bank or trust
company all Securities of the Series held in a Book-Entry System or
Securities Depository. Upon such delivery and transfer, such bank or
trust company shall be the successor custodian under this Agreement
and the Custodian shall be relieved of all obligations under this
Agreement. In addition, under these circumstances, all books, records
and other data of the Fund shall be returned to the Fund.
ARTICLE XIV
MISCELLANEOUS
14.1 Compliance with Laws. The Fund has and retains primary responsibility
for all compliance matters relating to the Series, including but not
limited to compliance with the 1940 Act, the Internal Revenue Code of
1986, the Xxxxxxxx-Xxxxx Act of 2002, the USA Patriot Act of 2002 and
the policies and limitations of the Series relating to its portfolio
investments as set forth in its Prospectus and statement of additional
information. The Custodian's services hereunder shall not relieve the
Fund of its responsibilities for assuring such compliance or the
Board's oversight responsibility with respect thereto.
14.2 Amendment. This Agreement may not be amended or modified in any manner
except by written agreement executed by the Custodian and the Fund,
and authorized or approved by the Board.
14.3 Assignment. This Agreement shall extend to and 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
22
Custodian, or by the Custodian without the written consent of the Fund
accompanied by the authorization or approval of the Board.
14.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to
conflicts of law principles. To the extent that the applicable laws of
the State of Ohio, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control, and
nothing herein shall be construed in a manner inconsistent with the
1940 Act or any rule or order of the SEC thereunder.
14.5 No Agency Relationship. Nothing herein contained shall be deemed to
authorize or empower either party to act as agent for the other party
to this Agreement, or to conduct business in the name, or for the
account, of the other party to this Agreement.
14.6 Services Not Exclusive. Nothing in this Agreement shall limit or
restrict the Custodian from providing services to other parties that
are similar or identical to some or all of the services provided
hereunder.
14.7 Invalidity. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case,
the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties.
14.8 Notices. Any notice required or permitted to be given by either party
to the other shall be in writing and shall be deemed to have been
given on the date delivered personally or by courier service, or three
days after sent by registered or certified mail, postage prepaid,
return receipt requested, or on the date sent and confirmed received
by facsimile transmission to the other party's address set forth
below:
Notice to the Custodian shall be sent to:
U.S. Bank National Association
000 Xxxxxx Xxxxxx, X.X. XX-XX-X0XX
Xxxxxxxxxx, Xxxx 00000
Attention: Mutual Fund Custody Services
Facsimile: (000) 000-0000
23
and notice to the Fund shall be sent to:
First American Funds, Inc.
000 Xxxxxxxx Xxxx, XX-XX-X00X
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Mutual Fund Client Services
Facsimile: (000) 000-0000
14.9 Multiple Originals. This Agreement may be executed on two or more
counterparts, each of which when so executed shall be deemed an
original, but such counterparts shall together constitute but one and
the same instrument.
14.10 No Waiver. No failure by either party hereto to exercise, and no
delay by such party in exercising, any right hereunder shall operate
as a waiver thereof. The exercise by either party hereto of any right
hereunder shall not preclude the exercise of any other right, and the
remedies provided herein are cumulative and not exclusive of any
remedies provided at law or in equity.
14.11 References to Custodian. The Fund shall not circulate any printed
matter which contains any reference to Custodian without the prior
written approval of Custodian, excepting printed matter contained in
the prospectus or statement of additional information for the Series
and such other printed matter as merely identifies Custodian as
custodian for the Series. The Fund shall submit printed matter
requiring approval to Custodian in draft form, allowing sufficient
time for review by Custodian and its counsel prior to any deadline for
printing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the date
first above written.
FIRST AMERICAN FUNDS, INC. U.S. BANK NATIONAL ASSOCIATION.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Michasl X. XxXxx
--------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxx Xxxxxxx X. XxXxx
Title: Vice President Administration Title: Vice President
24
EXHIBIT A
CERTIFICATE OF CORPORATE SECRETARY
OF
FIRST AMERICAN FUNDS, INC. (FAF)
FIRST AMERICAN INVESTMENT FUNDS, INC. (FAIF)
(COLLECTIVELY, THE "FIRST AMERICAN FUNDS")
I, Xxxxxxxx X. Xxxxxxxxx, being the Secretary of the First American Funds, do
hereby certify that the following resolutions were duly adopted at a meeting of
the board of directors of the First American Funds on June 21, 2006, and that no
action has been taken to rescind or amend the following resolutions and they
remain in full force and effect:
Authorized Persons (Open-End Funds)
RESOLVED, that in connection with the purchase or sale of any securities on
behalf of any portfolio of FAF, FAIF, FASF, and Mount Xxxxxx Securities Lending
Trust, each broker-dealer through which any such portfolio proposes to execute
transactions, as well as the Custodian or any Sub-Custodian, as custodian,
hereby is authorized to act on the written, telephoned or telegraphed
instructions of any one of the following persons, each of whom is authorized to
issue Proper Instructions as defined in the Custodian Agreement or any
Sub-Custodian Agreement; provided, that all telephone or telegraphed
instructions are confirmed in writing; and provided, further, that the employees
of X.X. Xxxxxx Investment Management Inc. named below are authorized to give
instructions only with respect to FAIF's International Fund, and only during the
respective periods in which such firms act as sub-advisor to such Fund:
25
U.S. Bank National Association and FAF Advisors, Inc.
Xxxxx Xxxxx Xxxxx Xxxxx Xxxx Xxxxxxx Xxxxxx Xxxxxxxx
Xxxxx Xxxxx Xxxx Fruit Xxxxxx XxXxxxxxx Xxxx Xxxxxxxx
Xxxxxxx Xxxxx Xxxxx Xxxxxxxxx Xxxx XxXxxx Xxxxxx Sell
Xxxxx Xxxx Xxxx Xxxxxxx Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxx Xxxxxxx Xxxxx Xxxx Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx Xxxxxxxx Xxxx Xxxxxx
Xxxx Xxxxxx Xxx Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxx Xxxx Xxxxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxx Xxxx Xxxxxx Xxx Xxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxx Xxxxx
Xxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxxxxxx Xxxxx Xxxxxx Xxxx X'Xxxxx Xxx Xxxxx
Xxxxx Xxxxx Xxxx Xxxxx-Xxxxxxxx Xxxxx X'Xxxxx Xxxxx Xxxxxxx
Xxx Xxxxxxx Xxx Xxxxxxx Xxxx Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx Xxxx Xxxx Xxx Xxxxxx Xxxx Xxxxx
Xxxx Xxxxxxxx Xxxx Xxxxxxx Xxx Xxxxxx Xxxx Xxxxxx
Xxxxxx Xxxx Xxxxx Xxxxxxx Xxxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxxxx Xxxxx Xxxxxxxx Xxxx Xxxxx
Xxx Xxxxxxxx Xxx Xxxxxxxx Xxxx Xxxxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx Xxxx Xxxxxx Xxxxxxx Xxxxxxx Xxx Xxx
Xxxxxx Xxxx Xxxx Xxxxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxx Wan-Xxxxx Xxxx Xxxxxx Xxxxxx
Xxxxx Xxxxx Xxxxxxxx Xxxxxx Xxx Xxxxxxxxx
Xxxxx Xxxxxx Xxx Xxxx Xxx Xxxxxxx
Xxxx Xxxxx Xxxx Xxxxx Asitha Sandanayake
Xxxxxx Xxxxxxxxx Xxx Xxxxxxxx Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxx Xxxxxxx
U.S. Bancorp Fund Services, LLC
Xxx Xxxxxx Xxx Xxxxxxx
Xxxx Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxx Xxxxxxxx Xxx Xxxxxx
X.X. Xxxxxx Investment Management Inc. (FAIF International Fund)
Xxx Xxxxxxx Xxxx Court Xxxxxxx Xxxx
Daemon Bear Xxx Xxxxxxxx Xxxxx Xxxxxxx
Xxx Xxxx Xxxxx Xxxxxx Xxx Xxxxxx
Xxxx Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxxx Xxxx Xxxxxxxx Xxxxx Xxxxx
RESOLVED, FURTHER, that the Brokers may deal with any and all of the above-named
and described persons as though they were dealing with the Fund(s) directly.
26
RESOLVED, FURTHER, that no limitations are imposed upon the above authorities.
RESOLVED, FURTHER, that the Secretary of the Funds be, and hereby is,
authorized, empowered and directed to certify to the Broker:
(a) a true copy of these resolutions;
(b) specimen signatures of each and every person by these resolutions
empowered; and
(c) a certificate that the Funds are duly organized and existing, that
their Articles of Incorporation and Bylaws authorize them to transact
the business by these resolutions defined, and no limitation has been
otherwise imposed upon such authority.
RESOLVED, FURTHER, that the Brokers may rely upon any certification given in
accordance with these resolutions, as effective until they receive written
notice of a change in or the recession of authority.
RESOLVED, FURTHER, that, in the event of any change in the office or powers of
persons hereby authorized, the Secretary shall certify such change to the
Brokers in the manner hereinabove provided, which notification, when received,
shall be adequate both to terminate the authorization of the persons theretofore
authorized, and to authorize the persons thereby substituted.
IN WITNESS WHEREOF, I have subscribed my name this 1st day of July, 2006.
/s/ Xxxxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxxxx X. Xxxxxxxxx
27
EXHIBIT B
U.S. BANK INSTITUTIONAL CUSTODY SERVICES
STANDARDS OF SERVICE GUIDE
U.S. Bank, N.A. ("USBank") is committed to providing superior quality
service to all customers and their agents at all times. We have compiled this
guide as a tool for our clients to determine our standards for the processing of
security settlements, payment collection, and capital change transactions.
Deadlines recited in this guide represent the times required for USBank to
guarantee processing. Failure to meet these deadlines will result in settlement
at our client's risk. In all cases, USBank will make every effort to complete
all processing on a timely basis.
USBank is a direct participant of the Depository Trust Company, a direct
member of the Federal Reserve Bank of Cleveland, and utilizes the Bank of New
York as its agent for ineligible and foreign securities.
For corporate reorganizations, USBank utilizes SEI's Reorg Source,
Financial Information, Inc., XCITEK, DTC Important Notices, Capital Changes
Daily (CCH) and the Wall Street Journal.
For bond calls and mandatory puts, USBank utilizes SEI's Bond Source, Xxxxx
Information Systems, Standard & Poor's Corporation, XCITEK, and DTC Important
Notices. USBank will not notify clients of optional put opportunities.
Any securities delivered free to USBank or its agents must be received
three (3) business days prior to any payment or settlement in order for the
USBank standards of service to apply.
Should you have any questions regarding the information contained in this
guide, please feel free to contact your account representative.
The information contained in this Standards of Service Guide is
subject to change. Should any changes be made USBank will provide you
with an updated copy of its Standards of Service Guide.
28
USBANK SECURITY SETTLEMENT STANDARDS
TRANSACTION TYPE INSTRUCTIONS DEADLINES* DELIVERY INSTRUCTIONS
---------------- ----------------------- ---------------------
DTC 1:30 P.M. on Settlement Date DTC Participant #0000
Xxxxx Xxxx XX 00000
Institutional #________________
For Account #____________
Federal Reserve Book Entry 12:30 P.M. on Settlement Date Federal Reserve Bank of Cleveland
for Firstar Bank, N.A. ABA# 000000000
CINTI/1050
For Account #_____________
Federal Reserve Book Entry (Repurchase 1:00 P.M. on Settlement Date Federal Reserve Bank of Cleveland
Agreement Collateral Only) for Firstar Bank, N.A. ABA# 000000000
CINTI/1040
For Account #_____________
PTC Securities 12:00 P.M. on Settlement Date PTC For Account BYORK
(GNMA Book Entry) Firstar Bank / 117612
Physical Securities 9:30 A.M. EST on Settlement Date Bank of New York
(for Deliveries, by 4:00 P.M. on Xxx Xxxx Xxxxxx - 0xx Xxxxx - Xxxxxx X
Settlement Date minus 1) Xxx Xxxx, XX 00000
For account of Firstar Bank / Cust #117612
Attn: Xxxxxx Xxxxxx
CEDEL/EURO-CLEAR 11:00 A.M. on Settlement Date minus 2 Cedel a/c 55021
FFC: a/c 387000
Firstar Bank /Global Omnibus
Euroclear a/c 97816
FFC: a/c 387000
Firstar Bank/Global Omnibus
Cash Wire Transfer 3:00 P.M. Firstar Bank, X.X. Xxxxx/Trust ABA# 000000000
Credit Account #112950027
Account of Firstar Trust Services
Further Credit to ___________
Account # _______________
* All times listed are Eastern Standard Time.
29
USBANK PAYMENT STANDARDS
SECURITY TYPE INCOME PRINCIPAL
------------- ------ ---------
Equities Payable Date
Municipal Bonds* Payable Date Payable Date
Corporate Bonds* Payable Date Payable Date
Federal Reserve Bank Book Entry* Payable Date Payable Date
PTC GNMA's (P&I) Payable Date + 1 Payable Date + 1
CMOs *
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
SBA Loan Certificates When Received When Received
Unit Investment Trust Certificates* Payable Date Payable Date
Certificates of Deposit* Payable Date + 1 Payable Date + 1
Limited Partnerships When Received When Received
Foreign Securities When Received When Received
*Variable Rate Securities
Federal Reserve Bank Book Entry Payable Date Payable Date
DTC Payable Date + 1 Payable Date + 1
Bankers Trust Payable Date + 1 Payable Date + 1
NOTE: If a payable date falls on a weekend or bank holiday, payment will be made
on the immediately following business day.
30
USBANK CORPORATE REORGANIZATION STANDARDS
DEADLINE FOR CLIENT INSTRUCTIONS TO TRANSACTION
TYPE OF ACTION NOTIFICATION TO CLIENT USBANK POSTING
-------------- ---------------------- ----------------------------------- -----------
Rights, Warrants, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
and Optional Mergers expiration or receipt of notice
Mandatory Puts with Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Option to Retain expiration or receipt of notice
Class Actions 10 business days prior to expiration date 5 business days prior to expiration Upon receipt
Voluntary Tenders, Later of 10 business days prior to 5 business days prior to expiration Upon receipt
Exchanges, expiration or receipt of notice
and Conversions
Mandatory Puts, Defaults, At posting of funds or securities received None Upon receipt
Liquidations, Bankruptcies, Stock
Splits, Mandatory Exchanges
Full and Partial Calls Later of 10 business days prior to None Upon receipt
expiration or receipt of notice
NOTE: Fractional shares/par amounts resulting from any of the above will be
sold.
31
EXHIBIT C
SERIES NAMES
Separate Series of First American Funds, Inc.
Name of Series Date Added
-------------- ----------
Government Obligations Fund 7/1/2006
Prime Obligations Fund 7/1/2006
Tax Free Obligations Fund 7/1/2006
Treasury Obligations Fund 7/1/2006
U.S. Treasury Money Market Fund 7/1/2006
32
EXHIBIT D
FEE SCHEDULE
Each series of the First American Funds, Inc., as now in existence or hereafter
created from time to time, shall pay to the Custodian a monthly fee at an annual
rate of 0.005% of the average daily net assets of such series.
33
EXHIBIT E
SHAREHOLDER COMMUNICATIONS ACT AUTHORIZATION
FIRST AMERICAN FUNDS, INC. (THE "FUND")
The Shareholder Communications Act of 1985 requires banks and trust companies to
make an effort to permit direct communication between a company which issues
securities and the shareholder who votes those securities.
Unless you specifically require us to NOT release your name and address to
requesting companies, we are required by law to disclose your name and address.
Your "yes" or "no" to disclosure will apply to all securities U.S. Bank holds
for you now and in the future, unless you change your mind and notify us in
writing.
_____ YES U.S. Bank is authorized to provide the Fund's name, address and
security position to requesting companies whose stock is owned by
the Fund.
_____ NO U.S. Bank is NOT authorized to provide the Fund's name, address and
security position to requesting companies whose stock is owned by
the Fund.
FIRST AMERICAN FUNDS, INC.
By:
---------------------------------
Title:
------------------------------
Date: July 1, 2007
34
