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.
THREE. CONDITIONS OF TRUST AND BENEFICIARIES INTEREST.
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(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.
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FOUR. IRREVOCABILITY OF TRUST. Subject to the provisions of paragraph
THREE, above, regarding the claims of unsecured creditors of Grantor,
the Trust shall be 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
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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.
(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 Piper Jaffray 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.
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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
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.
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(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 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
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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, 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
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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.
(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.
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(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 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.
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(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;
(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.
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(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 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
<PAGE>
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.
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
<PAGE>
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.
(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.
<PAGE>
(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.
(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.
<PAGE>
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:
The Grantor: First American Funds
601 SECOND AVENUE SOUTH
MINNEAPOLIS, MN 55402
ATTENTION: CHRISTOPHER J. SMITH
The Trustee: U.S. Bank National Association
601 SECOND AVENUE SOUTH
MINNEAPOLIS, MN 55402
ATTENTION: DEBORAH S. MASCHOFF
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
<PAGE>
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 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:
(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.
<PAGE>
(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:
(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.
<PAGE>
(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
601 Second Avenue South
Minneapolis, Minnesota 55402
Attn: Christopher J. Smith
First American Funds, Inc.
First American Investment Funds, Inc.
First American Strategy Funds, Inc.
First American Insurance Portfolios, Inc.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
American Strategic Income Portfolio Inc.
American Strategic Income Portfolio Inc. - II
American Strategic Income Portfolio Inc. - III
American Municipal Income Portfolio Inc.
<PAGE>
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
601 Second Avenue South
Minneapolis, MN 55402-4302
Attn: Deborah S. Maschoff
Attest:
----------------------------------------
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
<PAGE>
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.
