EX-99.f BONUS PROFIT
[EXHIBIT (f)]
FIRST AMERICAN FUNDS
DEFERRED COMPENSATION PLAN FOR DIRECTORS
TRUST AGREEMENT
TRUST AGREEMENT, effective as of January 1, 2000, between the First
American Funds corporate entities identified on Exhibit A attached hereto (each
such corporate entity is a "Grantor") and U.S. Bank National Association, a
national banking association organized under the laws of the United States with
principal offices located at Minneapolis, Minnesota (the "Trustee"). While
stated in this single Trust Agreement, this Trust Agreement actually creates
separate legal Trusts by Grantor and the terms of this Trust Agreement shall
apply individually to each Grantor's Trust created hereunder. The terms Grantor
and Trustee shall refer to the respective parties of each individual Trust
created hereunder. Earnings on amounts within a Grantor's Trust shall be
credited separately from earnings on amounts of any other Grantor. The Grantor
and Trustee hereby designate the administrator of the Plans to keep records as
to the amounts of the Grantor's Trust created and maintained hereunder.
ONE. PURPOSE. The purpose of this Trust (the "Trust") is to provide a
vehicle to:
(A) hold assets of the Grantor as a reserve for the discharge of the
Grantor's obligations to certain individuals (the "Beneficiaries")
entitled to receive benefits under the First American Funds Deferred
Compensation Plan for Directors and any other nonqualified deferred
compensation plan that the Grantor so designates in writing to the
Trustee (the "Plans"), and
(B) invest, reinvest, disburse and distribute those assets and the earnings
thereon as provided hereunder and in the Plans.
TWO. TRUST CORPUS. The Grantor hereby transfers to the Trustee and the
Trustee hereby accepts and agrees to hold, in Trust, such assets listed
on Schedule A, attached hereto, transferred to the Trustee by the
Grantor or on behalf of the Grantor.
Such cash and/or property, together with the earnings thereon, together
with any other cash or property received by the Trustee pursuant to
paragraph EIGHT of this Trust Agreement, shall constitute the trust
estate and shall be held, managed and distributed as hereinafter
provided; provided, however, that upon review and inspection, the
Trustee may decline to accept purchases or transfers of real property
or other specific assets into the trust. The Grantor shall have the
right at any time, and from time to time in its sole discretion, to
substitute assets of equal fair market value for any asset held by the
Trust. This right is enforceable by the Grantor in a non-fiduciary
capacity without the approval or consent of any person in a fiduciary
capacity. The Grantor shall execute any and all instruments necessary
to vest the Trustee with full title to the property hereby or
subsequently transferred.
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THREE. CONDITIONS OF TRUST AND BENEFICIARIES INTEREST.
(A) The Trust is intended to be a grantor trust, of which the Grantor is
the grantor, within the meaning of subpart E, part I, subchapter J,
chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended
(the "Code"), and the terms of this Trust Agreement shall be construed
in a manner consistent with such intent.
(B) So long as any trust corpus exists, a Beneficiary shall have a right to
receive payments from the trust corpus to the extent and as provided in
Paragraph 9 of this Trust Agreement, subject to the claims of creditors
of the Grantor in the event of Grantor's insolvency, as herein defined,
in which event a Beneficiary's right to receive payments shall exist
solely against the Grantor, and shall be no greater than the right of
any unsecured creditor of the Grantor.
(C) No part of a claim against the assets of the Trust, and no right,
benefit or payment under this Trust Agreement, shall be subject to
attachment or other legal process for the debts or obligations of a
Beneficiary or subject to anticipation, transfer, sale, assignment
(either at law or in equity), encumbrance, alienation, garnishment,
levy, execution, pledge or other legal or equitable process. No person,
other than a Beneficiary shall have any claim against the Trustee or
the Grantor by virtue of this Trust Agreement.
(D) All assets transferred hereto by the Grantor and becoming a part of the
corpus of the Trust shall thereby be irrevocably removed from the
possession, claim or control of the Grantor; provided, however, that
such assets shall always remain subject to the claim of a judgment
creditor of, or trustee in bankruptcy for, the Grantor.
(E) The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Grantor and shall be used
exclusively for the uses and purposes of Beneficiaries and general
creditors as herein set forth. Beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the
Trust. Any rights created under the Plans and this Trust Agreement
shall be mere unsecured contractual rights of the Beneficiaries against
the Grantor. Any assets held by the Trust will be subject to the claims
of the Grantor's general creditors under federal and state law in the
event of insolvency, as defined herein.
(F) It is the intention of the parties that this Trust shall constitute an
unfunded arrangement and shall not affect the status of the Plans as
unfunded plans maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees for purposes of Title I of the Employee Retirement Income
Security Act of 1974, as amended. Also, it is the intention of the
Grantor to make contributions to the Trust to provide itself with a
source of funds to assist it in satisfying its liabilities under the
Plans.
(G) It is the responsibility of the administrator of the Plan to maintain
documented information of the respective obligations of the Grantor to
the respective Beneficiaries of this Trust and to provide this
information to the Trustee as may be necessary or upon the reasonable
request of the Trustee.
FOUR. IRREVOCABILITY OF TRUST. Subject to the provisions of paragraph
THREE, above, regarding the claims of unsecured creditors of Grantor,
the Trust shall be
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irrevocable and may not be altered or amended in any substantive
respect, or revoked or terminated by the Grantor in whole or in part,
without the express written consent of a majority of the Beneficiaries
of the Trust; provided, however, that the Trust Agreement may be
amended, as may be necessary, either:
(A) To obtain a favorable ruling from the Internal Revenue Service with
respect to the tax consequences of the establishment and settlement of
the Trust, or
(B) To make nonsubstantive changes, which have no affect upon the amount of
any Beneficiary's benefits, the time of receipt of benefits, the
identity of any recipient of benefits, or the reversion of any assets
to the Grantor prior to the Trustee's satisfaction of all the Trustee's
obligations hereunder.
FIVE. INVESTMENT OF TRUST ASSETS. In conjunction with the establishment
and operation of the Trust, the Trustee is authorized in its
discretion, or as it may be directed by the Grantor or the
administrator of the Plan, but not by way of limitation:
(A) to invest and reinvest the Trust fund in such property, real or
personal, as a prudent investor of intelligence and integrity would
purchase in an exercise of reasonable care, judgment and diligence,
whether or not the same be expressly authorized by law for the
investment of Trust funds including, but merely by way of illustration,
bonds, mortgages, notes, debentures, equipment trust certificates,
interest in investment trusts, shares of stock, whether common or
preferred, shares of registered investment companies (i.e., mutual
funds, including mutual funds for which the Trustee or any affiliate of
the Trustee serves as investment advisor, custodian or other service
provider as disclosed in the current mutual fund prospectus to be
provided to the Grantor or the administrator of the Plan), leasehold
interests, real estate, money market securities, such insurance company
group annuity or other insurance contracts as the Grantor may specify,
and any other property which it may deem suitable;
(B) to acquire interests in investments and to commingle funds of the Trust
with those of other funds with respect to which the Trustee is acting
in a fiduciary capacity and to retain any such investment coming into
its possession as Trustee;
(C) to invest in any common trust funds maintained by the Trustee or any
affiliate thereof;
(D) to deposit any portion of the Trust fund in bank accounts, certificates
of deposit, time deposit open accounts and other similar investments
which bear a reasonable rate of interest, in the banking department of
any bank or trust company, including the banking department of the
Trustee or of any affiliate thereof;
(E) to retain in cash or other investments which are unproductive of income
so much of the Trust fund as it may deem advisable (e.g., Trust assets
pending investment or disbursement) which may include retention of
Trust assets in non-interest bearing accounts in the banking department
of the Trustee or of any affiliate thereof, notwithstanding the banking
department's or other entity's receipt of "float" from such uninvested
cash.
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(F) to retain insurance contracts or policies transferred to it by the
Grantor, and to purchase such insurance as it or the Grantor shall
determine to be necessary or advisable to advance best the purposes of
the Trust and the interest of the Beneficiaries; and
(G) to retain the entire or a substantial part of the principal in any
shares or other interest in assets used to initially fund the Trust or
to sell all or any part of the interest. The Trustee is authorized to
retain this interest without liability for failure to sell the interest
even though the retention may result in lack of diversification or the
interest is not the character or quality of investment permitted by law
for Trustees.
(H) to the fullest extent permitted by law, the Trustee is expressly
authorized to (i) retain the services of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc. and/or U.S. Bancorp Investments, Inc., each being affiliates of
U.S. Bank National Association, and/or any other registered
broker-dealer organization hereafter affiliated with U.S. Bank National
Association, and any future successors in interest thereto
(collectively for the purposes of this paragraph referred to as the
"Affiliated Entities"), to provide services to assist in or facilitate
the purchase or sale of investment securities in the Trust, (ii)
acquire as assets of the Trust shares of mutual funds to which
Affiliated Entities provides, for a fee, services in any capacity and
(iii) acquire in the Trust any other services or products of any kind
or nature from the Affiliated Entities regardless of whether the same
or similar services or products are available from other institutions.
The Trust may directly or indirectly (through mutual funds fees and
charges for example) pay management fees, transaction fees and other
commissions to the Affiliated Entities for the services or products
provided to the Trust and/or such mutual funds at such Affiliated
Entities' standard or published rates without offset (unless required
by law) from any fees charged by the Trustee for its services as
Trustee. The Trustee may also deal directly with the Affiliated
Entities regardless of the capacity in which it is then acting, to
purchase, sell, exchange or transfer assets of the Trust even though
the Affiliated Entities are receiving compensation or otherwise
profiting from such transaction or are acting as a principal in such
transaction. Each of the Affiliated Entities is authorized to (i)
effect transactions on national securities exchanges for the Trust as
directed by the Trustee, and (ii) retain any transactional fees related
thereto, consistent with Section 11(a)(1) of the Securities Exchange
Act of 1934, as amended, and related Rule 11a2-2(T). Included
specifically, but not by way of limitation, in the transactions
authorized by this provision are transactions in which any of the
Affiliated Entities are serving as an underwriter or member of an
underwriting syndicate for a security being purchased or are purchasing
or selling a security for its own account. In the event the Trustee is
directed by the Grantor, the administrator of the Plan or any
designated investment manager, as applicable hereunder (collectively
referred to for purposes of this paragraph as the "Directing Party"),
the Directing Party shall be authorized, and expressly retains the
right hereunder, to direct the Trustee to retain the services of, and
conduct transactions with, Affiliated Entities fully in the manner
described above.
SIX. ACCOUNTING BY TRUSTEE. The Trustee shall keep accurate and
detailed records of all investments, receipts, disbursements, and all
other transactions required to be made, including such specific records
as shall be agreed upon in writing between the Grantor and the Trustee.
All such accounts, books, and records shall be open to inspection and
audit at all reasonable times by the Grantor and by any Beneficiary.
Within sixty (60) days following (1) the close of each calendar year,
(2) the removal or resignation of the Trustee, and (3) the termination
of the Trust, the Trustee shall after each such event deliver to the
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Grantor and the Beneficiaries a written account of its administration
of the Trust during such year or during the period from the close of
the last preceding year to the date of such removal, resignation or
termination, setting forth all investments, receipts, disbursements and
other transactions effected by it, including a description of all
securities and investments purchased and sold with the cost or net
proceeds of such purchases or sales (accrued interest paid or
receivable being shown separately), and showing all cash, securities
and other property held in the Trust at the end of such year or as of
the date of such removal, resignation or termination, as the case may
be. Written approval of an account shall, as to all matters shown in
the account, be binding upon the recipient and shall release and
discharge the Trustee from any liability or accountability. A recipient
will be deemed to have given his or her written approval if he or she
does not object in writing to the Trustee within sixty (60) days after
the date of receipt of such account from the Trustee. The Trustee shall
be entitled at any time to institute an action in a court of competent
jurisdiction for settlement of its account.
SEVEN. RESPONSIBILITY OF TRUSTEE.
(A) The Trustee shall exercise its powers, duties, responsibilities and
rights hereunder with the care, skill, prudence and diligence, under
the circumstances then prevailing, that a prudent person acting in a
like capacity and familiar with such matters as are contemplated
hereunder would use in the conduct of an enterprise of a like character
and with like aims; provided, however, that the Trustee shall incur no
liability to anyone for any action taken pursuant to a direction,
request, or approval given by the Grantor or any Beneficiary
contemplated by, and in conformity with, the terms of the Plans or this
Trust Agreement. The Trustee may seek written evidence of such
direction, request or approval. In the event of a dispute between the
Grantor and a party, the Trustee may apply to a court of competent
jurisdiction to resolve the dispute. Furthermore, the Trustee shall be
held harmless by the Grantor or any Beneficiary (or any representative
of either) in following investment directions reasonably believed to be
made by or on behalf of the Grantor, and shall have no duty to review
or recommend sale of assets purchased pursuant to such directions,
including, without limitation, assets or investment property in which
the Trustee may have a conflict of interest.
(B) The Trustee shall not be required to undertake or to defend any
litigation arising in connection with this Trust Agreement unless it be
first indemnified by the Grantor against its costs, expenses and
liability (including, without limitation, attorneys' fees and expenses)
relating thereto. The Grantor hereby agrees to be primarily liable for
such costs, expenses and liability and to indemnify the Trustee for
such costs, expenses, and liability. If the Grantor does not pay such
costs, expenses and liabilities in a reasonably timely manner, the
Trustee may obtain payment from the Trust.
(C) The Trustee may consult with legal counsel (who may also be counsel for
the Grantor or the Trustee generally) with respect to any of its duties
or obligations hereunder with respect to the transactions contemplated
by this Trust or any act which the Trustee proposes to take or omit,
and shall be fully protected in acting or refraining from acting in
accordance with the advice of such counsel and may pay related
reasonable fees, expenses and compensation from the Trust.
(D) The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein;
provided, however, that if an insurance
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policy is held as an asset of the Trust, the Trustee shall have no
power to name anyone a beneficiary of the policy other than the Trust,
to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor trustee, or to loan to any
person the proceeds of any borrowing against such policy.
(E) The Trustee shall not be responsible for maintaining individual
distribution records of plan participants; the amount and time of
distribution shall be directed by the Grantor or the Grantor's
delegate.
(F) The Trustee has no obligation to apply for or obtain a ruling from the
Internal Revenue Service as to the tax consequences of the Trust as to
either the Grantor or the Beneficiaries.
(G) The Trustee is not responsible for giving notices or making filings
required by applicable statutes or regulations regarding any deferred
compensation or other plan for which the Trust has been established or
of which it is a part.
(H) The Trustee may hire agents, custodians, depositories, auditors,
accountants, actuaries, investment advisors, brokers, financial
consultants or other professionals, even if they are associated or
affiliated with the Trustee, to assist it in performing any of its
duties or obligations hereunder and may pay related reasonable fees,
expenses and compensation from the Trust.
(I) Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or applicable law, the Trustee shall not have any power
that could give the Trust the objective of carrying on a business and
dividing the gains therefrom, within the meaning of Section 301.7701-2
of the Procedure and Administrative Regulations promulgated pursuant to
the Code.
EIGHT. SPECIFIC POWERS. To carry out the purposes of the Trust and
subject to any limitations herein expressed, the Trustee is vested with
the following specific powers until final distribution in addition to
any powers now or hereafter conferred by the Minnesota Trustee's Powers
Act - Minnesota Statutes Section 501B.81, as it may be amended from
time to time.
(A) Receive and Retain Property. To receive and retain any property
received at the inception of the Trust or at any other time, whether or
not such property is unproductive of income or is property in which the
Trustee is personally interested or in which the Trustee owns an
undivided interest in any other trust capacity; provided, however, that
upon review and inspection, the Trustee may decline to accept purchases
or transfers of real property or other specific assets into the Trust.
Subject to the foregoing, the Grantor, in its sole discretion, may at
any time, or from time to time, make additional deposits of cash or
other property in trust with the Trustee to augment the principal to be
held, administered and disposed of by the Trustee as provided in this
Trust Agreement. Neither the Trustee nor any Beneficiary shall have any
right to compel such additional deposits.
(B) Dispose of, Develop, and Abandon Assets. To dispose of an asset, for
cash or on credit, at public or private sale and, in connection with
any sale or disposition, to give such warranties and indemnifications
as the Trustee shall determine; to manage, develop,
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improve, exchange, partition, change the character of or abandon a
Trust asset or any interest therein.
(C) Borrow and Encumber. To borrow money for any Trust purpose upon such
terms and conditions as may be determined by the Trustee; to obligate
the Trust or any part thereof by mortgage, deed of trust, pledge or
otherwise, for a term within or extending beyond the term of the Trust.
(D) Transactions with Affiliates. To engage in any transaction with or
acquire any service from an organization affiliated with the Trustee,
including a department or division of the Trustee; provided that such
transaction or service is otherwise authorized by law or this Trust
Agreement and is at a reasonable price and based upon reasonable terms
and conditions. The transactions and services hereby authorized include
securities brokerage, investment advice, insurance brokerage, loans,
deposits, commercial banking services, cash management, purchases of
securities underwritten or issued by an affiliated organization,
purchases of shares of an affiliate's proprietary mutual funds,
purchases of securities supported by the credit of an affiliate,
administrative and accounting advice and services, and such other
transactions or services as the Trustee, in the performance of its
duties, hereunder, may deem appropriate, or as are directed by the
Grantor or the administrator of the Plan.
(E) Lease. To enter for any purpose into a lease as lessor or lessee, with
or without an option to purchase or renew, for a term within or
extending beyond the term of the Trust.
(F) Grant or Acquire Options. To grant or acquire options and rights of
first refusal involving the sale or purchase of any Trust assets,
including the power to write covered call options listed on any
securities exchange.
(G) Powers Respecting Securities. Unless the following powers have been
retained by the Grantor as evidenced in writing and except for any
securities (including shares of mutual funds) affiliated with the
Trustee for which those powers are retained by the Grantor, the Trustee
shall have all the rights, powers, privileges and responsibilities of
an owner of securities, including, without limiting the foregoing, the
power to vote, to give general or limited proxies, to pay calls,
assessments, and other sums; to assent to, or to oppose, corporate
sales or other acts; to participate in, or to oppose, any voting
Trusts, polling agreements, foreclosures, reorganizations,
consolidations, mergers and liquidations, and, in connection therewith,
to give warranties and indemnifications and to deposit securities with
and transfer title to any protective or other committee; to exchange,
exercise or sell stock subscription or conversion rights; and,
regardless of any limitations elsewhere in this instrument relative to
investments by the Trustee, to accept and retain as an investment
hereunder any securities received through the exercise of any of the
foregoing powers including the investment in securities (including
stock or rights to acquire stock) or obligations issued by the Grantor.
(H) Use of Nominee. To hold securities or other property in the name of the
Trustee, in the name of a nominee of the Trustee, or in the name of a
custodian (or its nominee) selected by the Trustee, with or without
disclosure of the Trust, the Trustee being responsible for acts of such
custodian or nominee affecting such property.
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(I) Advance Money. To advance money for the protection of the Trust, and
for all expenses, losses and liabilities sustained or incurred in the
administration of the Trust or because of the holding or ownership of
any Trust assets, for which advances, with interest, the Trustee has a
lien on the Trust assets as against the Beneficiaries.
(J) Pay, Contest or Settle Claims. To pay, contest or settle any claim by
or against the Trust by compromise, arbitration or otherwise; to
release, in whole or in part, any claim belonging to the Trust to the
extent that the claim is uncollectible. Notwithstanding the foregoing,
the Trustee may only pay or settle a claim asserted against the Trust
by the Grantor if it is compelled to do so by a final order of a court
of competent jurisdiction.
(K) Litigate. To prosecute or defend actions, suits, claims or proceedings
for the protection of Trust assets and of the Trustee in the
performance of its duties and to represent the Trust in all actions,
suits, claims or proceedings.
(L) Employ Advisers and Agents. To employ persons, corporations or
associations, including attorneys, auditors, custodians, depositories,
actuaries, investment advisers, brokers, financial consultants, agents
or other professionals even if they are associated or affiliated with
the Trustee, to advise or assist the Trustee in the performance of its
duties and obligations hereunder; to act without independent
investigation upon their recommendations; and to pay related reasonable
fees, expenses and compensation from the Trust.
(M) Use Custodian. The Trustee may appoint any bank or trust company,
including those affiliated in ownership with the Trustee, to act as
custodian, depository or agent (the "Custodian") for securities and any
other Trust assets. The Custodian shall keep the deposited property,
collect and receive the income and principal, and hold, invest,
disburse or otherwise dispose of the property or its proceeds
(specifically including selling and purchasing securities, and
delivering securities sold and receiving securities purchased) upon the
order of the Trustee.
(N) Execute Documents. To execute and deliver all instruments which will
accomplish or facilitate an exercise of the powers vested in the
Trustee.
NINE. DISTRIBUTION OF TRUST ASSETS.
(A) The Grantor shall deliver to the Trustee a schedule (the "Payment
Schedule") that provides (1) the amounts payable in respect of each
Beneficiary, (2) a formula or other instructions acceptable to the
Trustee for determining the amounts so payable, (3) the form in which
such amounts are to be paid (as provided for or available under the
Plans), and (4) the time of commencement for payment of such amounts.
Except as otherwise provided herein, the Trustee shall make payments to
the Beneficiaries in accordance with such Payment Schedule.
(B) The Grantor or the administrator of the Plan is responsible for the
determination and reporting of any federal, state or local taxes that
may be required to be withheld with respect to the payment of benefits
pursuant to the terms of the Plans and shall be responsible for
remitting amounts withheld to the appropriate taxing authorities or
determine that such amounts have been reported, withheld and paid by
the Trustee. The Trustee shall have no responsibility under this
paragraph NINE with respect to
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withholding and reporting except that it shall withhold such amounts
for taxes as directed by the Grantor or the administrator of the Plan
and pay such to the Grantor or the administrator of the Plan for
remittance to the appropriate governmental agency. The Trustee may
assume the responsibility for the determination and reporting of taxes
that may be required to be withheld and for remitting amounts withheld
to the appropriate taxing authorities only if the Trustee and the
Grantor or administrator of the Plan specifically agree in writing that
the Trustee, and not the Grantor or administrator of the Plan, shall
have this responsibility.
(C) The entitlement of a Beneficiary to benefits under the Plan shall be
determined by the Grantor, the administrator of the Plan or such party
(which shall not be the Trustee) as it shall designate under the Plan,
and any claim for such benefits shall be considered and reviewed under
the procedures set out in the Plan.
(D) The Grantor may make payment of benefits directly to Beneficiaries as
they become due under the terms of the Plans. The Grantor shall notify
the Trustee in writing of its decision to make payment of benefits
directly prior to the time amounts are payable to Beneficiaries. In
addition, if the principal of the Trust, and any earnings thereon, are
not sufficient to make payments of benefits in accordance with the
terms of the Plans, the Grantor shall make the balance of each such
payment as it falls due. The Trustee shall notify the Grantor where
principal and earnings are not sufficient.
(E) Notwithstanding any other provision of the Trust Agreement to the
contrary, the Grantor shall make payments hereunder, or the
administrator of the Plan shall direct the Trustee to make such
payments before such payments are otherwise due if it determines, based
on a written opinion of legal counsel, a change in the tax or revenue
laws of the United States of America, a published ruling or similar
announcement issued by the Internal Revenue Service, a regulation
issued by the Secretary of the Treasury or his or her delegate, or a
decision by a court of competent jurisdiction involving a Beneficiary,
that a Beneficiary has recognized or will in that taxable year
recognize as income for federal income tax purposes amounts that are or
will be payable to the Beneficiary under the Plans before they are paid
to such Beneficiary.
(F) The Trustee shall incur no liability with respect to making or
refraining from making any payments or any calculations in accordance
with the provisions of this paragraph NINE.
(G) The liability of the Trustee to make the payments specified herein
shall be limited to the funds and property which have been received by
it as Trustee hereunder, including all income therefrom and increments
thereof less employment taxes payable under this paragraph.
TEN. TERMINATION OF THE TRUST AND REVERSION OF TRUST ASSETS.
(A) The Trust shall terminate upon the first to occur of:
(1) the payment of all amounts due the Beneficiaries under each of
the Plans and all employment taxes resulting from such
payment;
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(2) the twenty-first (21) anniversary of the death of the last
survivor of the Beneficiaries who are in being on the date of
the execution of this Trust Agreement; or
(3) the date on which Beneficiaries are no longer entitled to
benefits pursuant to the terms of the Plans.
(B) Upon termination of the Trust, any and all assets remaining in the
Trust, after the payment to the Beneficiaries of all amounts to which
they are entitled and after payment of the expenses, compensation and
employment taxes of this Trust Agreement, shall revert to the Grantor
and the Trustee shall promptly take such action as shall be necessary
to transfer any such assets to the Grantor. Notwithstanding the above,
the Grantor shall be obligated to take whatever steps are necessary to
ensure that the Trust is not terminated for a period of five (5) years
following a Change in Control as of the date of the execution of this
Trust Agreement, such steps to include, but not be limited to, the
transfer to the Trustee of cash or other assets pursuant to the
provisions of subparagraph (A) of paragraph EIGHT hereof.
(C) Except as provided in this paragraph TEN and paragraph FOURTEEN, once
the Trust has become irrevocable, the Grantor shall have no right or
power to direct the Trustee to return to the Grantor or to divert to
others any of the Trust assets before all payments of benefits have
been made to Beneficiaries pursuant to the terms of the Plans.
(D) Notwithstanding anything herein to the contrary, upon written approval
of Beneficiaries entitled to payment of benefits pursuant to the terms
of the Plans, the Grantor may terminate the Trust prior to the time
described in subparagraph (A) of this paragraph TEN. All assets in the
Trust at termination shall be returned to the Grantor.
(E) The obligations of the Grantor shall survive the termination of this
Trust Agreement, so long as such obligations shall have arisen out of
or in connection with events or circumstances occurring during the term
thereof.
(F) Distribution may be withheld by the Trustee if the amount or type of
trust assets prevents adequate payment of employment taxes under
paragraph NINE of this agreement, or adequate Trustee compensation and
indemnification under paragraphs TWELVE and THIRTEEN of this agreement.
ELEVEN. RESIGNATION OR REMOVAL OF TRUSTEE AND APPOINTMENT OF SUCCESSOR
TRUSTEE. The Trustee shall have the right to resign at any time upon
thirty (30) days written notice to the Grantor, which 30 day notice
period may be waived by mutual consent. The Trustee may be removed by
the Grantor (with the written consent of the administrator of the Plan)
upon thirty (30) days written notice to the Trustee, which 30 day
notice period may be waived by mutual consent. Upon resignation or
removal of the Trustee, the Grantor shall appoint a "Qualified
Successor Trustee." The appointment shall be effective when accepted in
writing by the Qualified Successor Trustee, who shall have all of the
rights and powers of the Trustee. If no Qualified Successor Trustee
accepts such appointment, the resigning Trustee may petition a court of
competent jurisdiction for the appointment of a "Qualified Successor
Trustee." Notwithstanding the preceding provisions, the Trustee may not
be removed by the Grantor for five (5) years after a Change of Control.
If the Trustee resigns within such five (5) years
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after a Change of Control, the Grantor shall apply to a court of
competent jurisdiction for the appointment of a "Qualified Successor
Trustee" or for instructions. For this purpose, a "Qualified Successor
Trustee" may be an individual or a corporation but may not be the
Grantor, any person who would be a "related or subordinate party" to
the Grantor within the meaning of Section 672(c) of the Code, or a
corporation that would be a member of an "affiliated group" of
corporations including the Grantor within the meaning of Section
1504(a) of the Code if the words "80 percent" wherever they appear in
that section were replaced by the words "50 percent." Upon the written
acceptance by the Qualified Successor Trustee of the Trust, all assets
shall subsequently be transferred to such Qualified Successor Trustee,
and upon approval of the resigned or removed Trustee's final account by
those entitled thereto, the resigned or removed Trustee shall be
discharged.
TWELVE. TRUSTEE COMPENSATION. The Trustee shall be entitled to receive
compensation for its services hereunder according to its schedule of
fees in effect at the time services are rendered. The Trustee shall be
entitled to additional compensation and expenses as determined by the
complexity of the administration of the Trust and the exercise of its
powers hereunder. Such compensation and expenses shall be paid by the
Grantor; provided, however, that to the extent such compensation and
expenses are not paid by the Grantor, they shall be charged against and
paid from the Trust and the Grantor may reimburse the Trust for any
such payment made from the Trust within thirty (30) days of its receipt
from the Trustee of written notice of such payment.
THIRTEEN. INDEMNIFICATION OF THE TRUSTEE.
(A) The Grantor agrees to indemnify the Trustee and hold it harmless from
and against all claims, liabilities, losses, costs and expenses
(including legal fees and expenses) that may be imposed on, incurred by
or asserted against it by reason of the Trustee taking or refraining
from taking any action in connection with this Trust Agreement or the
Trust, whether the Trustee is a party to a legal proceeding or
otherwise, provided that the Trustee did not act dishonestly or in
willful or grossly negligent violation of the law or regulation (as
found by a final judgment of a court of competent jurisdiction).
(B) Any and all taxes, expenses (including, but not limited to, the
Trustee's compensation) and costs of litigation relating to or
concerning the adoption, administration and termination of the Trust
shall be borne and promptly paid by the Grantor; provided, however,
that, to the extent such taxes, expenses and costs relating to the
Trust are due and owing and they are charged against and paid from the
Trust, the Grantor shall reimburse the Trust for any such payment made
from the Trust within thirty (30) days of its receipt from the Trustee
of written notice of such payment.
(C) Any of the taxes, compensation and expenses not promptly paid by the
Grantor under this paragraph THIRTEEN to the Trustee shall be charged
against and paid from the Trust.
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FOURTEEN. GRANTOR INSOLVENCY.
(A) The assets of the Trust shall be subject only to the claims of the
Grantor's general creditors under federal and state law whose claims
against the Grantor are not satisfied because of the Grantor's
bankruptcy or insolvency. The Trustee shall cease payment of benefits
to Beneficiaries if the Grantor is "bankrupt" or "insolvent." The
Grantor shall be considered bankrupt or insolvent if the Grantor is:
(1) unable to pay its debts when due, or
(2) is subject to a pending proceeding as a debtor under the
United States Bankruptcy Code, 11 U.S.C. Section 101 et seq.
The Board of Directors and chief executive officer of the
Grantor must notify the Trustee in writing of the Grantor's
bankruptcy or insolvency within three (3) days following the
occurrence of such event. Upon receipt of such a notice, or,
upon receipt of a written allegation from a person or entity
claiming to be a creditor of the Grantor that the Grantor is
bankrupt or insolvent, the Trustee shall discontinue payments
to Beneficiaries. The Trustee, shall, as soon as practicable
after receipt of such notice or written allegation, determine
whether the Grantor is bankrupt or insolvent. If the Trustee
determines, based on such notice, written allegation, or such
other information as it deems appropriate, that the Grantor is
bankrupt or insolvent, the Trustee shall hold the assets of
the Trust for the benefit of the Grantor's general creditors,
and deliver any undistributed assets to satisfy the claims of
such creditors as a court of competent jurisdiction may
direct. The Trustee shall resume payment of benefits to
Beneficiaries in accordance with paragraph NINE of this Trust
Agreement only after it has determined that the Grantor is not
bankrupt or insolvent, or is no longer bankrupt or insolvent
(if the Trustee determined that the Grantor was bankrupt or
insolvent), or pursuant to an order of a court of competent
jurisdiction. Unless the Trustee has actual knowledge of the
Grantor's bankruptcy or insolvency or has received notice from
the Grantor or a person claiming to be a creditor alleging
that the Grantor is insolvent or bankrupt, the Trustee shall
have no duty to inquire whether the Grantor is bankrupt or
insolvent. The Trustee may in all events rely on such evidence
concerning the Grantor's solvency as may be furnished to the
Trustee which will give the Trustee a reasonable basis for
making a determination concerning the Grantor's solvency.
(B) Provided that there are sufficient assets, if the Trustee discontinues
payment of benefits from the Trust pursuant to this paragraph FOURTEEN
and subsequently resumes such payments, the first payment following
such discontinuance shall include the aggregate amount of all payments
which would have been made to each Beneficiary under the terms of the
Plans during the period of such discontinuance, less the aggregate
amount of payments made to any Beneficiary by the Grantor in lieu of
the payments provided for hereunder during any such period of
discontinuance.
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(C) The Trustee shall have no obligation to enforce, on behalf of any
Beneficiary, a claim with respect to the payment of deferred
compensation amounts either against the Grantor or the Trust assets.
(D) No provision of this Trust Agreement shall in any respect reduce or
diminish the rights of any Beneficiary to assert any claim, either
against the Grantor, against the assets of the Trust, or as a general
creditor of the Grantor.
FIFTEEN. JURISDICTION. This Trust Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota
applicable to contracts made and to be performed therein and the
Trustee shall not be required to account in any court other than one of
the courts of such state.
SIXTEEN. INTERPRETATION OF THE AGREEMENT.
(A) All section headings herein have been inserted for convenience of
reference only and shall in no way modify, restrict or affect the
meaning or interpretation of any of the terms or provisions of this
Trust Agreement.
(B) This Trust Agreement is intended as a complete and exclusive statement
of the agreement of the parties hereto, supersedes all previous
agreements or understandings among them and may not be modified or
terminated orally.
(C) If any provision of this Trust Agreement shall be invalid and
unenforceable, the remaining provisions hereof shall subsist and be
carried into effect.
SEVENTEEN. SUCCESSOR PARTIES.
(A) If a Trustee or Custodian hereunder is a bank or trust company, any
corporation resulting from any merger, consolidation or conversion to
which such bank or trust company may be a party, or any corporation
otherwise succeeding generally to all or substantially all of the
assets or business of such bank or trust company, shall be the
successor to it as Trustee or Custodian hereunder, as the case may be
without the execution of any instrument or any further action on the
part of any party hereto.
(B) In the event a Beneficiary dies and payments are to be made to a minor,
the Trustee may require that a guardian be appointed and may refuse to
make the payments except to such guardian.
(C) Any reference hereunder to the Grantor shall expressly be deemed to
include the Grantor's successor and assigns.
EIGHTEEN. THE PLAN BETWEEN GRANTOR AND BENEFICIARY.
(A) The Grantor shall supply the Trustee with a copy of the First American
Funds Deferred Compensation Plan for Directors, as well as any
subsequent Amendments. Also, the Grantor shall supply the Trustee with
the names of the Beneficiaries, as well as any subsequent changes in
Beneficiaries.
32
(B) The Plans are by this reference expressly incorporated herein and made
a part hereof with the same force and effect as if fully set forth at
length. As of the date first stated above, the terms of the Plans are
as set forth in Exhibit B attached hereto.
(C) If there is an inconsistency between the Plan and this Trust Agreement,
the Trust Agreement shall be operated in a manner consistent with the
Plan except that the provisions in this Trust Agreement shall determine
the rights and obligations of the Trustee.
NINETEEN. DEFINITIONS.
(A) The term "Trustee" shall include any successor Trustee.
(B) Whenever used herein, and to the extent appropriate, the masculine,
feminine or neuter gender shall include the other two genders, the
singular shall include the plural and the plural shall include the
singular.
(C) Any reference hereunder to a Beneficiary shall expressly be deemed to
include, where relevant, the beneficiaries of a Beneficiary duly
appointed under the terms of the Plans. A Beneficiary shall cease to
have such status once any and all amounts due such Beneficiary under
the Plan have been satisfied.
(D) The term "Change of Control" shall mean the purchase or other
acquisition by any person, entity or group of persons, within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934 ("Act"), or any comparable successor provisions, of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Act)
of 30 percent or more of either the outstanding shares of common stock
or the combined voting power of the Grantor's then outstanding voting
securities entitled to vote generally, or the approval by the
stockholders of the Grantor of a reorganization, merger, or
consolidation, in each case, with respect to which persons who were
stockholders of the Grantor immediately prior to such reorganization,
merger or consolidation do not, immediately thereafter, own more than
50 percent of the combined voting power entitled to vote generally in
the election of directors of the reorganized, merged or consolidated
Grantor's then outstanding securities, or liquidation or dissolution of
the Grantor or of the sale of all or substantially all of the Grantor's
assets.
TWENTY. NOTICES. Any notice or instructions required under any of the
provisions of this Trust Agreement shall be deemed effectively given
only if such notice is in writing and is delivered personally or by
certified or registered mail, return receipt requested and postage
prepaid, addressed to the addresses as set forth below of the parties
hereto. The addresses of the parties are as follows:
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The Grantor: First American Funds
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
The Trustee: U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Grantor or Trustee may at any time change the address to which notices
are to be sent to it by giving written notice thereof in the manner
provided above.
TWENTY-ONE. AMENDMENT OF THIS TRUST AGREEMENT. This Trust Agreement may
be amended by a written instrument executed by the Grantor and the
Trustee. Notwithstanding the forgoing, no such amendment shall conflict
with the terms of the Plans or shall make the Trust revocable to the
extent it has become irrevocable as provided in this Trust Agreement.
TWENTY-TWO. ALLOCATION OF RESPONSIBILITIES.
(A) General Responsibilities.
(1) In establishing this Trust, it is the intention of the Grantor
and the Trustee that, except in the event of insolvency of the
Grantor or subsequent to the satisfaction of all liabilities
of the Grantor under the Plan, all money or other property
contributed by the Grantor and income thereon held pursuant to
the Trust shall be used only for one of the following
purposes: (1) to pay any benefits that become payable to
Beneficiaries of the Grantor under the Plan, or (2) to pay the
expenses, including Trustees' fees, incurred in the
administration of this Trust and any taxes assessed in
accordance with the requirements of this Trust Agreement. The
Trustee shall keep or cause to be kept (by arrangement with
the administrator of the Plans, for example) appropriate
records to reflect the total amount of assets contributed to
the Trust on behalf of each employee by each separate Grantor,
any distributions to a Beneficiary from the Trust on behalf of
the Grantor, and the income, expenses, or taxes allocable to
the assets held in each Grantor's Trust on behalf of each
Beneficiary.
(2) In the event of insolvency of the Grantor, all money or other
property attributable to the Grantor which is then held
pursuant to the Trust shall be available to pay the claims of
any creditor of the Grantor who reduces such claims to
judgment through an appropriate judicial proceeding
(hereinafter referred to as an Insolvency Creditor) to the
same extent that unencumbered assets held by the Grantor are
available to satisfy such claims. (This Paragraph Twenty-Two
(A)(2) shall not reduce the availability of the Trust's assets
to creditors as described in Paragraph Fourteen.)
(3) Each Fiduciary, in carrying out the responsibilities assigned
under this Trust Agreement, shall act in accordance with this
intent and the terms of this Trust
34
Agreement using the care, skill, prudence, and diligence under
the circumstances then prevailing that a prudent person acting
in a like capacity and familiar with such matters would use in
the conduct of an enterprise of a like character and with like
aims.
(B) Designated Fiduciaries. As further specified and delegated in the
provisions of this Trust Agreement, the following Fiduciaries are
designated to control and manage the operation and administration of
this Trust:
(1) The Grantor.
(2) The administrator of the Plan
(3) Any Investment Manager.
(4) The Trustee, in the event of insolvency of the Grantor, and/or
if responsible for investment management.
(C) Delegation of Fiduciary Duties/Employment of Agents, etc. Each
Fiduciary designated pursuant to this Trust Agreement (herein referred
to as "designated Fiduciary") may delegate any or all of its
responsibilities so delegated. Any such delegation shall be in writing
and shall be made a permanent part of the records of the designated
Fiduciary. Such delegation shall be reviewed periodically by the
designated Fiduciary and shall be terminable under such conditions and
upon such notice as the designated Fiduciary, in its sole discretion,
deems reasonable and prudent under the circumstances. In addition, each
designated Fiduciary shall be entitled to employ and consult with such
investment advisors, consultants, agents and counsel as may be
reasonably necessary in connection with the performance of such
designated Fiduciary's responsibilities hereunder, and to pay them or
cause them to be paid reasonable compensation out of the Trust.
(D) Allocation of Responsibility. The responsibilities of the Fiduciaries
designated in paragraph TWENTY-TWO (B) of this Trust Agreement shall be
allocated among them as provided in paragraph TWENTY-TWO (E) through
(H) below. Except as otherwise provided by applicable law, no Fiduciary
shall be liable for a breach by another Fiduciary.
(E) Duties of the Grantor. The Grantor shall have sole authority and
responsibility for:
35
(1) Unless otherwise expressly required under this Trust
Agreement, the determination of the existence, nature, and
extent of the rights and interests of any Beneficiary or his
or her beneficiary under the plan in this Trust.
(2) The allocation of investment responsibilities among and
between itself, the Trustee, the administrator of the Plan and
any Investment Manager acting hereunder from time to time.
(3) The determination of investment policies and guidelines to be
followed by the Fiduciary or Fiduciaries to whom investment
responsibilities have been allocated.
(4) The appointment and removal of any Investment Manager.
(5) The promulgation of appropriate directions to implement
benefit payments from the Trust.
(6) The responsibility to oversee the administrator of the Plan's
maintenance of individual Beneficiary records and the
provision of such information to the Trustee on an annual
basis or on a more frequent basis if the Grantor, in its sole
discretion, determines it to be advisable.
(7) Unless otherwise expressly agreed, to oversee the
administrator of the Plan's preparation and filing of reports
and other information concerning the Trust as may be required
by applicable law, except such reports and information as are
specifically required by law to be prepared and filed by the
Trustee.
(8) The written notification of the Trustee of the insolvency of
the Grantor.
(9) The written notification of the Trustee of the determination
of the possibility of the occurrence or non-occurrence of a
business combination or change of control and the effect to
the plan and Trust thereof.
(F) Duties of Investment Managers. Any Investment Manager acting hereunder
from time to time shall have sole authority and responsibility for the
management, investment, and reinvestment of the assets of the Trust
allocated to such Investment Manager.
(G) Duties of Trustee. The Trustee shall have sole authority and
responsibility for:
36
(1) The control, management, investment, and reinvestment of the
assets of the Trust, unless and to the extent the Grantor has
allocated such powers to other Fiduciaries acting hereunder.
(2) The valuation of the assets of the Trust.
(3) The maintenance and production of records and reports
pertaining to the administration of this Trust, including the
maintenance of records reflecting the total amount of assets
held in the Trust on behalf of each Beneficiary attributable
to contributions by the Grantor.
(4) The performance of the general administrative and operational
powers conferred under this Trust Agreement; subject, however,
to the directions of Fiduciaries specifically authorized to
direct the Trustee with respect to the exercise of such
powers.
(5) The determination of the existence, nature, and extent of the
rights and interests of any Beneficiary or his or her
beneficiary under the plan to assets in this Trust only when
and to the extent such duties are expressly allocated to the
Trustee under this Trust Agreement.
(H) Grantor Directions. The Trustee shall not be liable for losses or
unfavorable results arising from its compliance with directions of the
Grantor or its designees (including the administrator of the Plan) made
in accordance with the terms of this Trust Agreement.
GRANTOR: FIRST AMERICAN FUNDS CORPORATE ENTITIES EXISTING ON JANUARY 1,
2000 AS IDENTIFIED ON EXHIBIT A ATTACHED HERETO BY THE UNDERSIGNED DULY
AUTHORIZED REPRESENTATIVE.
Address:
First American Funds
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
First American Funds, Inc.
First American Investment Funds, Inc.
First American Strategy Funds, Inc.
First American Insurance Portfolios, Inc.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
37
American Strategic Income Portfolio Inc.
American Strategic Income Portfolio Inc. - II
American Strategic Income Portfolio Inc. - III
American Municipal Income Portfolio Inc.
Minnesota Municipal Income Portfolio Inc.
American Municipal Term Trust Inc.
American Municipal Term Trust Inc. - II
American Municipal Term Trust Inc. - III
Minnesota Municipal Term Trust Inc.
Minnesota Municipal Term Trust Inc. - II
American Select Portfolio Inc.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attest:
--------------------------------------
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
38
EXHIBIT A
DEFERRED COMPENSATION PLAN
EFFECTIVE JANUARY 1, 2000
FAF Adopting Entities:
First American Funds, Inc.
First American Investment Funds, Inc.
First American Strategy Funds, Inc.
First American Insurance Portfolios, Inc.
American Strategic Income Portfolio Inc.
American Strategic Income Portfolio Inc. - II
American Strategic Income Portfolio Inc. - III
American Municipal Income Portfolio Inc.
Minnesota Municipal Income Portfolio Inc.
American Municipal Term Trust Inc.
American Municipal Term Trust Inc. - II
American Municipal Term Trust Inc. - III
Minnesota Municipal Term Trust Inc.
Minnesota Municipal Term Trust Inc. - II
American Select Portfolio Inc.
39