EXHIBIT (8)(a)
CUSTODIAN AGREEMENT
FIRST AMERICAN FUNDS, INC.
FIRST TRUST NATIONAL ASSOCIATION
THIS AGREEMENT, made this 20th day of September, 1993, by and
between First American Funds, Inc., a Minnesota corporation (hereinafter called
the "Fund"), and First Trust National Association, a national banking
association organized and existing under the laws of the United States of
America with its principal place of business at Minneapolis, Minnesota
(hereinafter called the "Custodian").
WITNESSETH:
WHEREAS, the Fund is a mutual fund that currently offers its
shares in five series -- First American Money Fund, First American Institutional
Money Fund, First American Institutional Government Fund, First American CT
Treasury Fund, and First American CT Government Fund -- the investment
portfolios and other aspects of which are different in certain respects.
WHEREAS, the Fund desires that its securities and cash shall
be hereafter held and administered by the Custodian, pursuant to the terms of
this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements
herein made, the Fund and the Custodian agree as follows:
ARTICLE 1. DEFINITIONS
The word "Securities" as used herein shall be construed to
include, without being limited to, shares, stocks, treasury stocks, including
any stocks of the Fund, options, notes, bonds, debentures, evidences of
indebtedness, certificates of interest or participation in any profit-sharing
agreements, collateral trust certificates, reorganization certificates or
subscriptions, transferable shares, investment contracts, voting trust
certificates, certificates of deposit for a security, fractional or undivided
interests in oil, gas, or other mineral rights, or any certificates of interest
or participation in, temporary or interim certificates for, receipts for,
guarantees of, or warrants or rights to subscribe to or purchase any of the
foregoing, acceptances and other obligations, and any evidence of any right or
interest in or to any property or assets, financial futures contracts and
options thereon, and any other interest or instrument commonly known as a
security or commodity.
The word "Series" shall refer individually or collectively, as
the context requires, to Prime Obligations Fund, Government Obligations Fund and
Treasury Obligations Fund, and any further series of common stock of the Fund
created hereafter by
resolution of the Fund's board of directors and on behalf of which series of
common stock the Fund's board of directors adopts this Agreement.
The words "Written Order from the Fund" shall mean a request
or direction or certification in writing directed to the Custodian and signed in
the name of the Fund by any two of the individuals designated in the current
certified list referred to in Article 2, provided that one of the individuals so
signing shall be an officer of the Fund designated in said current certified
list.
ARTICLE 2. NAMES TITLES AND SIGNATURES OF FUND'S OFFICERS
The Fund shall certify to the Custodian the names, titles, and
signatures of officers and other persons who are authorized to give Written
Orders to the Custodian on behalf of each individual Series of the Fund. The
Fund agrees that, whenever any change in such authorization occurs, it will file
with the Custodian a new certified list of names, titles, and signatures which
shall be signed by at least one officer previously certified to the Custodian if
any such officer still holds an office in the Fund. The Custodian is authorized
to rely and act upon the names, titles, and signatures of the individuals as
they appear in the most recent such certified list which has been delivered to
the Custodian as hereinbefore provided.
ARTICLE 3. RECEIPT AND DISBURSING OF MONEY
Section (1). The Fund shall from time to time cause cash owned
by the Fund to be delivered or paid to the Custodian for the account of any
Series, but the Custodian shall not be under any obligation or duty to determine
whether all cash of the Fund is being so deposited, to which Series account any
such cash is being deposited, or to take any action or to give any notice with
respect to cash not so deposited. The Custodian agrees to hold such cash,
together with any other sum collected or received by it for or on behalf of the
Fund, for the account of the Fund Series designated by the Fund, in the name of
"First American Funds, Inc., Custodian Account, [Prime Obligations Fund],
[Government Obligations Fund] and [Treasury Obligations Fund]" (or in the name
of any Series created hereafter and adopting this Agreement) in conformity with
the terms of this Agreement. The Custodian shall make payments of cash for the
account of the Fund only:
(a) for bills, statements and other obligations of Fund
(including but not limited to obligations in
connection with the conversion, exchange or surrender
of securities owned by Fund, interest charges,
dividend disbursements, taxes, management fees,
custodian fees, legal fees, auditors' fees, transfer
agents' fees, brokerage commissions, compensation to
personnel, and other operating expenses of Fund)
pursuant to Written Orders from the Fund setting
forth the name of the person to whom payment is to be
made, the amount of the payment, and the purpose of
the payment;
(b) as provided in Article 4 hereof; and
(c) upon the termination of this Agreement.
Section (2). The Custodian is hereby appointed the
attorney-in-fact of the Fund to enforce and collect all checks, drafts, or other
orders for the payment of money received by the Custodian for the account of the
Fund and drawn to or to the order of the Fund and to deposit them in said
Custodian Account of the Fund.
ARTICLE 4. RECEIPT OF SECURITIES
The Fund agrees to place all of its Securities in the custody
of the Custodian for the account of any Series, but the Custodian shall not be
under any obligation or duty to determine whether all Securities of the Fund are
being so deposited, to which Series account any such Securities are being
deposited, or to require that they be so deposited, or to take any action or
give any notice with respect to the Securities not so deposited. The Custodian
agrees to hold such Securities for the account of the Series of the Fund
designated by the Fund, in the name of the Fund or of bearer or of a nominee of
the Custodian, and in conformity with the terms of this Agreement. The Custodian
also agrees, upon Written Order from the Fund, to receive from persons other
than the Fund and to hold for the account of the Series of the Fund designated
by the Fund Securities specified in said Written Order, and, if the same are in
proper form, to cause payment to be made therefor to the persons from whom such
Securities were received, from the funds of the Fund held by it in said
Custodian Account in the amounts provided and in the manner directed by the
Written Order from the Fund.
The Custodian agrees that all Securities of the Fund placed in
its custody shall be kept physically segregated at all times from those of any
other person, firm, or corporation, and shall be held by the Custodian with all
reasonable precautions for the safekeeping thereof, with safeguards
substantially equivalent to those maintained by the Custodian for its own
Securities.
Subject to such rules, regulations, and orders as the
Securities and Exchange Commission may adopt, the Fund may direct the Custodian
to deposit all or any part of the Securities owned by the Fund in a system for
the central handling of Securities established by a national securities exchange
or a national securities association registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, or such other person as
may be permitted by the Commission, pursuant to which system all Securities of
any particular class or series of any issuer deposited within the system are
treated as fungible and may be transferred or pledged by bookkeeping entry
without physical delivery of such Securities, provided that all such deposits
shall be subject to withdrawal only at the direction of the Fund.
ARTICLE 5. TRANSFER, EXCHANGE, REDELIVERY, ETC. OF SECURITIES
The Custodian agrees to transfer, exchange, or deliver
Securities as provided in Article 6, or on receipt by it of, and in accordance
with, a Written Order from the Fund in which the Fund shall state specifically
which of the following cases is covered thereby, provided that it shall not be
the responsibility of the Custodian to determine the propriety or legality of
any such order:
(a) In the case of deliveries of Securities sold by the
Fund, against receipt by the Custodian of the
proceeds of sale and after receipt of a confirmation
from a broker or dealer with respect to the
transaction;
(b) In the case of deliveries of Securities which may
mature or be called, redeemed, retired, or otherwise
become payable, against receipt by the Custodian of
the sums payable thereon or against interim receipts
or other proper delivery receipts;
(c) In the case of deliveries of Securities which are to
be transferred to and registered in the name of the
Fund or of a nominee of the Custodian and delivered
to the Custodian for the account of the Fund, against
receipt by the Custodian of interim receipts or other
proper delivery receipts;
(d) In the case of deliveries of Securities to the issuer
thereof, its transfer agent or other proper agent, or
to any committee or other organization for exchange
for other Securities to be delivered to the Custodian
in connection with a reorganization or
recapitalization of the issuer or any split-up or
similar transaction involving such Securities,
against receipt by the Custodian of such other
Securities or against interim receipts or other
proper delivery receipts;
(e) In the case of deliveries of temporary certificates
in exchange for permanent certificates, against
receipt by the Custodian of such permanent
certificates or against interim receipts or other
proper delivery receipts;
(f) In the case of deliveries of Securities upon
conversion thereof into other Securities, against
receipt by the Custodian of such other Securities or
against interim receipts or other proper delivery
receipts;
(g) In the case of deliveries of Securities in exchange
for other Securities (whether or not such
transactions also involve the receipt or payment of
cash), against receipt by the Custodian of such other
Securities or against interim receipts or other
proper delivery receipts;
(h) In a case not covered by the preceding paragraphs of
this Article, upon receipt of a resolution adopted by
the Board of Directors of the Fund, signed by an
officer of the Fund and certified to by the
Secretary, specifying the Securities and assets to be
transferred, exchanged, or delivered, the purposes
for which such delivery is being made, declaring such
purposes to be proper corporate purposes, and naming
a person or persons (each of whom shall be a properly
bonded officer or employee of the Fund) to whom such
transfer, exchange, or delivery is to be made; and
(i) In the case of deliveries pursuant to paragraphs (a),
(b), (c), (d), (e), (f), and (g) above, the Written
Order from the Fund shall direct that the proceeds of
any Securities delivered, or Securities or other
assets exchanged for or in lieu of Securities so
delivered, are to be delivered to the Custodian.
ARTICLE 6. CUSTODIAN'S ACTS WITHOUT INSTRUCTIONS
Unless and until the Custodian receives contrary Written
Orders from the Fund, the Custodian shall without order from the Fund:
(a) Present for payment all bills, notes, checks, drafts,
and similar items, and all coupons or other income
items (except stock dividends), held or received for
the account of the Fund, and which require
presentation in the ordinary course of business, and
credit such items to the aforesaid Custodian Account
of the Fund pursuant to Custodian's then current
funds availability schedule; but Custodian shall have
no duty to take action to effect collection of any
amount if the assets upon which such payment is due
are in default or if payment is refused after due
demand and presentation;
(b) Present for payment all Securities which may mature
or be called, redeemed, retired, or otherwise become
payable and credit such items to the aforesaid
Custodian Account of the Fund pursuant to Custodian's
then current funds availability schedule; but
Custodian shall have no duty to take action to effect
collection of any amount if the assets upon which
such payment is due are in default or if payment is
refused after due demand and presentation;
(c) Hold for and credit to the account of the Fund all
shares of stock and other Securities received as
stock dividends or as the result of a stock split or
otherwise from or on account of Securities of the
Fund, and notify the Fund promptly of the receipt of
such items;
(d) Deposit any cash received by it from, for or on
behalf of the Fund to the credit of the Fund in the
aforesaid Custodian Account (in its own deposit
department without liability for interest);
(e) Charge against the aforesaid Custodian Account for
the Fund disbursements authorized to be made by the
Custodian hereunder and actually made by it, and
notify the Fund of such charges at least once a
month;
(f) Deliver Securities which are to be transferred to and
reissued in the name of the Fund, or of a nominee of
the Custodian for the account of the Fund, and
temporary certificates which are to be exchanged for
permanent certificates, to a proper transfer agent
for such purpose against interim receipts or other
proper delivery receipts; and
(g) Hold for disposition in accordance with Written
Orders from the Fund hereunder all options, rights,
and similar Securities which may be received by the
Custodian and which are issued with respect to any
securities held by it hereunder, and notify the Fund
promptly of the receipt of such items.
ARTICLE 7. DELIVERY OF PROXIES
The Custodian shall deliver promptly to the Fund all proxies,
written notices, and communications with relation to Securities held by it which
it may receive from securities issuers or obligors and/or via the industry
standard information services to which Custodian subscribes.
ARTICLE 8. TRANSFER
The Fund shall furnish to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper form for
transfer any Securities which it may hold for the Series accounts of the Fund.
For the purpose of facilitating the handling of Securities, unless the Fund
shall otherwise direct by Written Order, the Custodian is authorized to hold
Securities deposited with it under this Agreement in the name of its registered
nominee or nominees (as defined in the Internal Revenue Code and any Regulations
of the United States Treasury Department issued thereunder or in any provision
of any subsequent federal tax law exempting such transaction from liability for
stock transfer taxes) and shall execute and deliver all such certificates in
connection therewith as may be required by such laws or regulations or under the
laws of any state. The Custodian shall advise the Fund of the certificate number
of each certificate so presented for transfer and that of the certificate
received in exchange therefor, and shall use its best efforts to the end that
the specific Securities held by it hereunder shall be at all times identifiable.
ARTICLE 9. TRANSFER TAXES AND OTHER DISBURSEMENTS
The Fund shall pay or reimburse the Custodian for any transfer
taxes payable upon transfers of Securities made hereunder, including transfers
incident to the termination of this Agreement, and for all other necessary and
proper disbursements, advances and expenses made or incurred by the Custodian in
the performance or incident to the termination of this Agreement, and the
Custodian shall have a lien upon any cash or Securities held by it for the
account of the Fund for all such items, enforceable, after thirty days' Written
Notice by registered mail to the Fund, by the sale of sufficient Securities to
satisfy such lien. In the event that any advance of funds is made by Custodian
on behalf of the Fund, the Fund agrees to repay the Custodian on demand the
amount of the advance plus accrued interest at the then effective Federal funds
rate. The Custodian may reimburse itself by deducting from the proceeds of any
sale of Securities an amount sufficient to pay any transfer taxes payable upon
the transfer of Securities sold. The Custodian shall execute such certificates
in connection with Securities delivered to it under this Agreement as may be
required, under the provisions of any federal revenue act and any Regulations of
the Treasury Department issued thereunder or any state laws, to exempt from
taxation any transfers and/or deliveries of any such Securities as may qualify
for such exemption.
ARTICLE 10. CUSTODIAN'S LIABILITY FOR
PROCEEDS OF SECURITIES SOLD
If the mode of payment for Securities to be delivered by the
Custodian is not specified in the Written Order from the Fund directing such
delivery, the Custodian shall make delivery of such Securities against receipt
by it of cash, a postal money order or a check drawn by a bank, trust company,
or other banking institution, or by a broker named in such Written Order from
the Fund, for the amount the Custodian is directed to receive. The Custodian
shall be liable for the proceeds of any delivery of Securities made pursuant to
this Article, but provided that it has complied with the provisions of this
Article, only to the extent that such proceeds are actually received.
ARTICLE 11. CUSTODIAN'S REPORT
The Custodian shall furnish the Fund, as of the close of
business on the last business day of each month, a statement showing all cash
transactions and entries for the accounts of the Series of the Fund. The books
and records of the Custodian pertaining to its actions as Custodian under this
Agreement shall be open to inspection and audit, at reasonable times, by
officers of, and auditors employed by, the Fund. The Custodian shall furnish the
Fund with a list of the Securities held by it in custody for the account of the
Fund as of the close of business on the last business day of each quarter of the
Fund's fiscal year.
ARTICLE 12. CUSTODIAN'S COMPENSATION
The Custodian shall be paid compensation at such rates and at
such times as may from time to time be agreed on in writing by the parties
hereto, and the Custodian shall have a lien for unpaid compensation, to the date
of termination of this Agreement, upon any cash or Securities held by it for the
Series accounts of the Fund, enforceable in the manner specified in Article 9
hereof.
ARTICLE 13. DURATION, TERMINATION AND AMENDMENT OF
AGREEMENT
This Agreement shall remain in effect, as it may from time to
time be amended, until it shall have been terminated as hereinafter provided,
but no such alteration or termination shall affect or impair any rights or
liabilities arising out of any acts or omissions to act occurring prior to such
amendment or termination.
The Custodian may terminate this Agreement by giving the Fund
ninety days' written notice of such termination by registered mail addressed to
the Fund at its principal place of business.
The Fund may terminate this Agreement by giving ninety days'
written notice thereof delivered, together with a copy of the resolution of the
Board of Directors authorizing such termination and certified by the Secretary
of the Fund, by registered mail to the Custodian at its principal place of
business. Additionally, this Agreement may be terminated with respect to any
Series of the Fund pursuant to the same procedures, in which case this Agreement
shall continue in full effect with respect to all other Series of the Fund.
Upon termination of this Agreement, the assets of the Fund, or
Series thereof, held by the Custodian shall be delivered by the Custodian to a
successor custodian upon receipt by the Custodian of a copy of the resolution of
the Board of Directors of the Fund, certified by the Secretary, designating the
successor custodian; and if no successor custodian is designated the Custodian
shall, upon such termination, deliver all such assets to the Fund.
This Agreement may be amended at any time by the mutual
agreement of the Fund and the Custodian. Additionally, this Agreement may be
amended with respect to any Series of the Fund at any time by the mutual
agreement of the Fund and the Custodian, in which case such amendment would
apply to such Series amending this Agreement but not to the other Series of the
Fund.
This Agreement may not be assigned by the Custodian without
the consent of the Fund, authorized or approved by a resolution of its Board of
Directors.
ARTICLE 14. SUCCESSOR CUSTODIAN
Any bank or trust company into which the Custodian or any
successor custodian may be merged or converted or with which it or any successor
custodian may be consolidated, or any bank or trust company resulting from any
merger, conversion or consolidation to which the Custodian or any successor
custodian shall be a party, or any bank or trust company succeeding to the
business of the Custodian, shall be and become the successor custodian without
the execution of any instrument or any further act on the part of the Fund or
the Custodian or any successor custodian.
Any successor custodian shall have all the power, duties, and
obligations of the preceding custodian under this Agreement and any amendments
thereof and shall succeed to all the exemptions and privileges of the preceding
custodian under this Agreement and any amendments thereof.
ARTICLE 15. GENERAL
Nothing expressed or mentioned in or to be implied from any
provisions of this Agreement is intended to give or shall be construed to give
any person or corporation other than the parties hereto any legal or equitable
right, remedy or claim under or in respect of this Agreement or any covenant,
condition or provision herein contained, this Agreement and all of the
covenants, conditions and provisions hereof being intended to be, and being, for
the sole and exclusive benefit of the parties hereto and their respective
successors and assigns.
It is the purpose and intention of the parties hereto that the
Fund shall retain all the power, rights and responsibilities of determining
policy, exercising discretion and making decisions with respect to the purchase,
or other acquisitions, and the sale, or other disposition, of all of its
Securities, and that the duties and responsibilities of the Custodian hereunder
shall be limited to receiving and safeguarding the assets and Securities of the
Fund and to delivering or disposing of them pursuant to the Written Order of the
Fund as aforesaid, and the Custodian shall have no authority, duty or
responsibility for the investment policy of the Fund or for any acts of the Fund
in buying or otherwise acquiring, or in selling or otherwise disposing of, any
Securities, except as hereinbefore specifically set forth.
The Custodian shall in no case or event permit the withdrawal
of any money or Securities of the Fund upon the mere receipt of any director,
officer, employee or agent of the Fund, but shall hold such money and Securities
for disposition under the procedures herein set forth.
ARTICLE 16. INSTRUCTIONS TO CUSTODIAN
The Custodian may, when it deems it expedient, apply to the
Fund, or to counsel for the Fund, or to its own counsel, for instructions and
advice; and the Custodian shall not be liable for any action taken by it in
accordance with the written instructions or advice of the Fund or of counsel for
the Fund.
ARTICLE 17. EFFECTIVE DATE
This agreement shall become effective when it is executed and
delivered by the parties hereto, which date shall not precede the date it shall
have been approved by the Board of Directors of the Fund. The Fund shall
transmit to the Custodian promptly after such approval by said Board of
Directors a copy of its resolution embodying such approval, certified by the
Secretary of the Fund.
ARTICLE 18. GOVERNING LAW
This agreement is executed and delivered in Minneapolis,
Minnesota and the laws of the State of Minnesota shall be controlling and shall
govern the construction, validity and effect of this contract.
IN WITNESS WHEREOF, the Fund and the Custodian have caused
this Agreement to be executed in duplicate as of the date first above written by
their duly authorized officers.
ATTEST: FIRST AMERICAN FUNDS, INC.
/s/ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Asst. Secretary Its Vice President
ATTEST: FIRST TRUST NATIONAL ASSOCIATION
/s/ By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trust Officer AVP Its Executive Vice President