EXHIBIT 8
CUSTODIAN AGREEMENT
V.A M. INSTITUTIONAL FUNDS, INC.
FIRST TRUST NATIONAL ASSOCIATION
THIS AGREEMENT, made this 10th day of July 1997, by and between VAM
Institutional Funds, Inc., a Minnesota corporation (the "Fund"), for and on
behalf of each series of the Fund that adopts this Agreement (said series being
hereinafter referred to, individually, as a "Series" and, collectively, as the
"Series"), and First Trust National Association (the "Custodian"), a national
banking association organized and existing under the laws of the United States
of America, with its principal place of business at St. Xxxx, Minnesota. The
name of each Series that adopts this Agreement and the effective date of this
Agreement with respect to each such Series are set forth in Exhibit A hereto.
1. APPOINTMENT OF CUSTODIAN.
Fund hereby constitutes and appoints Custodian as Custodian of the
Fund, and Custodian accepts such appointment.
2. DUTIES AND RESPONSIBILITIES OF CUSTODIAN.
A. Delivery of Assets
Fund will deliver or cause to be delivered to Custodian on the
effective date of this Agreement, or as soon thereafter as practicable,
and from time to time thereafter, all portfolio securities acquired by
it and monies then owned by it except as permitted by the Investment
Company Act of 1940 or from time to time coming into its possession
during the time this Agreement shall continue in effect. Custodian
shall have no responsibility or liability whatsoever for or on account
of securities or monies not so delivered. All securities so delivered
to Custodian (other than bearer securities) shall be registered in the
name of Fund or its nominee, or of a nominee of Custodian, or shall be
properly endorsed and in form for transfer satisfactory to Custodian.
B. Delivery of Accounts and Records
Fund shall turn over to Custodian all of the Fund's relevant accounts
and records previously maintained by it, if any. Custodian shall be
entitled to rely conclusively on the completeness and correctness of
the accounts and records turned over to it by Fund, and Fund shall
indemnify and hold Custodian harmless of and from any and all expenses,
damages and losses whatsoever arising out of or in connection with any
omission, inaccuracy or other deficiency of such accounts and records
or in the failure of Fund to provide any portion of such or to provide
any information needed by the Custodian knowledgeably to perform its
function hereunder.
C. Delivery of Assets to Third Parties
Custodian will receive delivery of and keep safely the assets of Fund
delivered to it from time to time segregated in a separate account.
Custodian will not deliver, assign, pledge or hypothecate any such
assets to any person except as permitted by the provisions of this
Agreement or any agreement executed by it according to the terms of
Section 2.0 of this Agreement. Upon delivery of any such assets to a
subcustodian pursuant to Section 2.0 of this agreement, Custodian will
create and maintain records identifying those assets which have been
delivered to the subcustodian as belonging to Fund. The Custodian is
responsible for the securities and monies of Fund only until they have
been transmitted to and received by other persons as permitted under
the terms of this Agreement, except for securities and monies
transmitted to any subcustodians appointed by the Custodian pursuant to
Section 2.0, for which Custodian remains responsible. With respect to
subcustodians appointed at Fund's request, Custodian shall be
responsible to Fund for securities and cash transmitted to such
subcustodian to the same extent those entities are responsible to
Custodian. Custodian may participate directly or indirectly through a
subcustodian in the Depository Trust Company, Treasury/Federal Reserve
Book Entry System, or Participant Trust Company (as such entities are
defined in 17 CFR Section 270.17f 4(b)) provided that (i) the account
of the Custodian in which securities of the Fund held at such an entity
shall not include any assets of the Custodian other than assets held as
a fiduciary, custodian or otherwise for customers; (ii) the records of
the Custodian with respect to securities of the Fund which are
maintained in such an entity shall identify by book-entry those
securities belonging to the Fund; (iii) the Custodian shall pay for
securities purchased for the account of the Fund upon (a) receipt of
advice from such entity that the Fund's securities have been
transferred to the Custodian's account, and (b) the making of an entry
on the records of the Custodian to reflect such payment and transfer
for the account of the Fund; (iv) the Custodian shall transfer
securities sold for the account of the Fund upon (a) receipt of advice
from such entity that payment for the Fund's securities has been
transferred to the Custodian's account, and (b) the making of any entry
on the records of the Custodian to reflect such transfer and payment
for the account of the Fund; (v) copies of all advices or reports from
such entity(ies) of transfers of securities for the account of the Fund
shall be maintained for the Fund by the Custodian and the Custodian
shall furnish the Fund with confirmation of each transfer to or from
the account of the Fund; (vi) upon request the Custodian shall provide
the Fund with any report obtained by the Custodian on the entity(ies)
accounting system, internal accounting control and procedures for
safeguarding securities deposited with such entity.
D. Registration of Securities
Custodian will hold stocks and other registrable portfolio securities
of Fund registered in the name of Fund or in the name of any nominee of
Custodian for whose fidelity and liability Custodian will be fully
responsible, or in street
certificate form so-called, with or without any indication of fiduciary
capacity. Unless otherwise instructed, Custodian will register all such
portfolio securities in the name of its authorized nominee. All
securities, and the ownership thereof by Fund, which are held by
Custodian hereunder, however, shall at all times be identifiable on the
records of the Custodian. The Fund agrees to hold Custodian and its
nominee harmless from any liability resulting from Custodian's status
as record holder of securities held in custody.
E. Exchange of Securities
Upon receipt of instructions as defined herein in Section 3.A,
Custodian will exchange, or cause to be exchanged, portfolio securities
held by it for the account of Fund for other securities or cash issued
or paid in connection with any reorganization, recapitalization,
merger, consolidation, split-up of shares, change of par value,
conversion or otherwise, and will deposit any such securities in
accordance with the terms of any reorganization or protective plan,
provided, however, that Custodian may proceed with any such mandatory
transaction without instructions. Without instructions, Custodian is
authorized to exchange securities held by it in temporary form for
securities in definitive form, to effect an exchange of shares when the
par value of the stock is changed, and, upon receiving payment
therefore, to surrender bonds or other securities held by it at
maturity or when advised of earlier call for redemption, except that
Custodian shall receive instructions prior to surrendering any
convertible security.
F. Purchases of Investments of the Fund
Fund will, on each business day on which a purchase of securities shall
be made by it, deliver to Custodian instructions which shall specify
with respect to each such purchase:
1. The name of the issuer and description of the security;
2. The number of shares or the principal amount purchased, and
accrued interest, if any;
3. The trade date;
4. The settlement date;
5. The purchase price per unit and the brokerage commission,
taxes and other expenses payable upon such purchase;
6. The total amount payable upon such purchase; and
7. The name of the person from whom or the broker or dealer
through whom the purchase was made.
In accordance with such instructions, Custodian will pay for out of
monies held for the account of Fund and receive the portfolio
securities so purchased by or for the account of Fund. Such payment
will be made only upon receipt by Custodian of the securities so
purchased in form for transfer satisfactory to Custodian.
G. Sales and Deliveries of Investments of Fund - Other than Options and
Futures Fund will, on each business day on which a sale of investment
securities of Fund has been made, deliver to Custodian instructions
specifying with respect to each such sale:
1. The name of the issuer and description of the securities;
2. The number of shares or principal amount sold, and accrued
interest, if any;
3. The date on which the securities sold were purchased or other
information identifying the securities sold and to be
delivered;
4. The trade date;
5. The settlement date;
6. The sale price per unit and the brokerage commission, taxes or
other expenses payable in connection with such sale;
7. The total amount to be received by Fund upon such sale; and 8.
The name and address of the broker or dealer through whom or
person to whom the sale was made.
In accordance with such instructions, Custodian will deliver or cause
to be delivered the securities thus designated as sold for the account
of Fund to the broker or other person specified in the instructions
relating to such sale, such delivery to be made only upon receipt of
payment therefore in such form as is satisfactory to Custodian, with
the understanding that Custodian may deliver or cause to be delivered
securities for payment in accordance with the customs prevailing among
dealers in securities.
H. Purchases or Sales of Security Options, Options on Indices and Security
Index Futures Contracts
Fund will, on each business day on which a purchase or sale of the
following options and/or futures shall be made by it, deliver to
Custodian instructions which shall specify with respect to each such
purchase or sale:
1. Security Options
a. The underlying security;
b. The price at which purchased or sold;
c. The expiration date;
d. The number of contracts;
e. The exercise price;
f. Whether the transaction is an opening, exercising,
expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased;
i. Market on which option traded;
j. Name and address of the broker or dealer through whom
the sale or purchase was made.
2. Options on Indices
a. The index;
b. The price at which purchased or sold;
c. The exercise price;
d. The premium;
e. The multiple;
f. The expiration date;
g. Whether the transaction is an opening, exercising,
expiring or closing transaction;
h. Whether the transaction involves a put or call;
i. Whether the option is written or purchased;
j. The name and address of the broker or dealer through
whom the sale or purchase was made, or other
applicable settlement instructions.
3. Security Index Futures Contracts
a. The last trading date specified in the contract and,
when available, the closing level thereof;
b. The index level on the date the contract is entered
into;
c. The multiple;
d. Any margin requirements;
e. The need for a segregated margin account (in addition
to instructions, and if not already in the possession
of Custodian, Fund shall deliver a substantially
complete and executed custodial safekeeping account
and procedural agreement which shall be incorporated
by reference into this Custody Agreement); and
f. The name and address of the futures commission
merchant through whom the sale or purchase was made,
or other applicable settlement instructions.
4. Options on Index Future Contracts
a. The underlying index futures contract;
b. The premium;
c. The expiration date;
d. The number of options;
e. The exercise price;
f. Whether the transaction is an opening, exercising,
expiring or closing transaction;
g. Whether the transaction involves a put or call;
h. Whether the option is written or purchased; and
i. The market on which the option is traded.
I. Securities Pledged or Loaned
1. Upon receipt of instructions, Custodian will release or cause
to be released securities held in custody to the pledgee
designated in such instructions by way of pledge or
hypothecation to secure any loan incurred by Fund;
provided, however, that the securities shall be released only
upon payment to Custodian of the monies borrowed, except that
in cases where additional collateral is required to secure a
borrowing already made, further securities may be released or
caused to be released for that purpose upon receipt of
instructions. Upon receipt of instructions, Custodian will
pay, but only from funds available for such purpose, any such
loan upon redelivery to it of the securities pledged or
hypothecated therefore and upon surrender of the note or notes
evidencing such loan.
2. Upon receipt of instructions, Custodian will release
securities held in custody to the borrower designated in such
instructions; provided, however, that the securities will be
released only upon deposit with Custodian of full cash
collateral as specified in such instructions, and that Fund
will retain the right to any dividends, interest or
distribution on such loaned securities. Upon receipt of
instructions and the loaned securities, Custodian will release
the cash collateral to the borrower.
J. Routine Matters
Custodian will, in general, attend to all routine and mechanical
matters in connection with the sale, exchange, substitution, purchase,
transfer, or other dealings with securities or other property of Fund
except as may be otherwise provided in this Agreement or directed from
time to time by the Board of Directors of Fund.
K. Income and other Payments to Fund
Custodian will:
1. Collect, claim and receive and deposit for the account of Fund
all income and other payments which become due and payable on
or after the effective date of this Agreement with respect to
the securities deposited under this Agreement, and credit the
account of Fund with such income on the date received;
2. Execute ownership and other certificates and affidavits for
all foreign, federal, state and local tax purposes in
connection with the collection of bond and note coupons; and
3. Take such other action as may be necessary or proper in
connection with:
a. the collection, receipt and deposit of such income
and other payments, including but not limited to the
presentation for payment of:
1. all coupons and other income items requiring
presentation; and
2. all other securities which may mature or be
called, redeemed, retired or otherwise
become payable and regarding which the
Custodian has actual knowledge, or notice of
which is contained in publications of the
type to which it normally subscribes for
such purpose; and
b. the endorsement for collection, in the name of Fund,
of all checks, drafts or other negotiable
instruments.
Custodian, however, will not be required to take action to effect
collection of any amount if the securities upon which such payment is
due are in default, or if payment is refused after due demand and
presentation, except upon receipt of instructions and upon being
indemnified to its satisfaction against the costs and expenses of such
action. Custodian will receive, claim and collect all stock dividends,
rights and other similar items and will deal with the same pursuant to
instructions. If Custodian receives notification of existence of rights
granted to Fund prior to the expiration date of such rights, Custodian
shall reflect such rights in the Fund's records, and shall advise Fund
of the expiration of such rights prior to the expiration date and await
instructions from Fund in connection therewith.
L. Proxies and Notices
Custodian will promptly deliver or mail or have delivered or mailed to
Fund all proxies properly signed, all notices of meetings, all proxy
statements and other notices, requests or announcements affecting or
relating to securities held by Custodian for Fund and will, upon
receipt of instructions, execute and deliver or cause its nominee to
execute and deliver or mail or have delivered or mailed such proxies or
other authorizations as may be required. Except as provided by this
Agreement or pursuant to instructions hereafter received by Custodian,
neither it nor its nominee will exercise any power inherent in any such
securities, including any power to vote the same, or execute any proxy,
power of attorney, or other similar instrument voting any of such
securities, or give any consent, approval or waiver with respect
thereto, or take any other similar action.
M. Disbursements
Custodian will pay or cause to be paid insofar as funds are available
for the purpose, 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 instructions of 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.
N. Daily Statement of Accounts
Custodian will, within a reasonable time, render to Fund as of the
close of business on each day, a detailed statement of the amounts
received or paid and of securities received or delivered for the
account of Fund during said day in
compliance with Rule 31a-1(b)(1) of the Investment Company Act of 1940,
as amended. Custodian will, from time to time, upon request by Fund,
render a detailed statement of the securities and monies held for Fund
under this Agreement, and Custodian will maintain such books and
records as are necessary to enable it to do so and will permit such
persons as are authorized by Fund including Fund's independent public
accountants, access to such records or confirmation of the contents of
such records; and if demanded, will permit federal and state regulatory
agencies to examine the securities, books and records. Upon the written
instructions of Fund or as demanded by federal or state regulatory
agencies, Custodian will instruct any subcustodian to give such persons
as are authorized by Fund including Fund's independent public
accountants, access to such records or confirmation of the contents of
such records; and if demanded, to permit federal and state regulatory
agencies to examine the books, records and securities held by
subcustodian which relate to Fund.
O. Appointment of Subcustodians
Notwithstanding any other provisions of this Agreement, all or any of
the monies or securities of Fund may be held in Custodian's own custody
or in the custody of one or more other banks or trust companies
selected by Custodian or as directed by the Fund. Any such subcustodian
must have the qualifications required for custodians under the
Investment Company Act of 1940, as amended. The Custodian or
subcustodian may participate directly or indirectly in The Depository
Trust Company, Treasury/Federal Reserve Book Entry System, or
Participant Trust Company (as such entities are defined at 17 CFR Sec.
270.17f-4(b)), or other depository approved by the Fund.
P. Accounts and Records Property of Fund
Custodian acknowledges that all of the accounts and records maintained
by Custodian pursuant to this Agreement are the property of Fund, and
will be made available to Fund for inspection or reproduction within a
reasonable period of time, upon demand. Custodian will assist Fund's
independent auditors, or upon approval of Fund, or upon demand, any
regulatory body, in any requested review of Fund's accounts and records
but shall be reimbursed for all expenses and employee time invested in
any such review outside of routine and normal periodic reviews. Upon
receipt from Fund of the necessary information, Custodian will supply
necessary data for Fund's completion of any necessary tax returns,
questionnaires, periodic reports to Shareholders and such other reports
and information requests as Fund and Custodian shall agree upon from
time to time.
Q. Adoption of Procedures
Custodian and Fund may from time to time adopt procedures as they agree
upon, and Custodian may conclusively assume that no procedure approved
by
Fund, or directed by Fund, conflicts with or violates any requirements
of its prospectus, Articles of Incorporation, Bylaws, or any rule or
regulation of any regulatory body or governmental agency. Fund will be
responsible to notify Custodian of any changes in statutes,
regulations, rules or policies which might necessitate changes in
Custodian's responsibilities or procedures.
R. Overdrafts
If Custodian shall in its sole discretion advance funds to the account
of the Fund which results in an overdraft because the monies held by
Custodian on behalf of the Fund are insufficient to pay the total
amount payable upon a purchase of securities as specified in Fund's
instructions or for some other reason, the amount of the overdraft,
plus accrued interest thereon at a rate agreed upon by the parties from
time to time, shall be payable by the Fund to Custodian upon demand.
The Fund hereby grants Custodian a security interest in the assets held
in the account to the extent of any such advances.
3. INSTRUCTIONS.
A. The term "instructions," as used herein means written or oral
instructions to Custodian from a designated representative of
Fund. Certified copies of resolutions of the Board of
Directors of Fund naming one or more designated
representatives to give instructions in the name and on behalf
of Fund, may be received and accepted from time to time by
Custodian as conclusive evidence of the authority of any
designated representative to act for Fund and may be
considered to be in full force and effect (and Custodian will
be fully protected in acting in reliance thereon) until
receipt by Custodian of notice to the contrary. Unless the
resolution delegating authority to any person to give
instructions specifically requires that the approval of anyone
else will first have been obtained, Custodian will be under no
obligation to inquire into the right of the person giving such
instructions to do so. Notwithstanding any of the foregoing
provisions of this Section 3, no authorizations or
instructions received by Custodian from Fund, will be deemed
to authorize or permit any director, officer, employee or
agent of Fund to withdraw any of the securities or similar
investments of Fund upon the mere receipt of such
authorization or instructions from such director, officer,
employee or agent.
Notwithstanding any other provision of this Agreement,
Custodian, upon receipt (and acknowledgment if required at the
discretion of Custodian) of the instructions of a designated
representative of Fund will undertake to deliver for Fund's
account monies (provided such monies are on hand or available)
in connection with Fund's transactions and to wire transfer
such monies to such broker, dealer, subcustodian, bank or
other agent specified in such instructions by a designated
representative of Fund.
B. No later than the next business day immediately following each
oral instruction, Fund will send Custodian written
confirmation of such oral instruction. At Custodian's sole
discretion, Custodian may record on tape, or otherwise, any
oral instructions whether given in person or via telephone,
each such recording identifying the parties, the date and the
time of the beginning and ending of such oral instruction.
4. LIMITATION OF LIABILITY OF CUSTODIAN.
A. Custodian shall hold harmless and indemnify Fund from and
against any claim, loss, liability or expense (collectively a
"Claim") arising out of Custodian's failure to comply with the
terms of this Agreement or arising out of Custodian's
negligence, willful misconduct, or bad faith. Custodian shall
not be liable for consequential, special or punitive damages.
Custodian may reasonably request and obtain the advice and
opinion of counsel for Fund, or of its own counsel with
respect to questions or matters of law, and it shall be
without liability to Fund for any action taken or omitted by
it in good faith, in conformity with such advice or opinion.
B. The Fund agrees to indemnify and hold the Custodian harmless
from and against any Claim arising from the Custodian's
performance of its duties hereunder or its actions taken at
the direction of the Fund, provided that the Custodian shall
not be indemnified for any Claim arising out of Custodian's
failure to comply with the terms of this Agreement or arising
out of Custodian's negligence, bad faith or willful
misconduct. Fund shall not be liable for consequential,
special or punitive damages.
C. Custodian may rely upon the advice of Fund and upon statements
of Fund's accountants and other persons believed by it in good
faith, to be expert in matters upon which they are consulted,
and Custodian shall not be liable for any actions taken, in
good faith without negligence upon such statements.
D. If Fund requires Custodian in any capacity to take, with
respect to any securities, any action which involves the
payment of money by it, or which in Custodian's opinion might
make it or its nominee liable for payment of monies or in any
other way, Custodian, upon notice to Fund given prior to such
actions, shall be and be kept indemnified by Fund in an amount
and form satisfactory to Custodian against any liability on
account of such action.
E. Custodian shall be entitled to receive, and Fund agrees to pay
to Custodian, on demand, reimbursement for such cash
disbursements, costs
and expenses as may be agreed upon from time to time by
Custodian and Fund.
F. Custodian shall be protected in acting as custodian hereunder
upon any instructions, advice, notice, request, consent,
certificate or other instrument or paper reasonably appearing
to it to be genuine and to have been properly executed and
shall, unless otherwise specifically provided herein, be
entitled to receive as conclusive proof of any fact or matter
required to be ascertained from Fund hereunder, a certificate
signed by the Fund's President, or other officer specifically
authorized for such purpose.
G. Without limiting the generality of the foregoing, Custodian
shall be under no duty or obligation to inquire into, and
shall not be liable for:
1. The validity of the issue of any securities purchased
by or for Fund, the legality of the purchase thereof
or evidence of ownership required by Fund to be
received by Custodian, or the propriety of the
decision to purchase or amount paid therefore; or
2. The legality of the sale of any securities by or for
Fund, or the propriety of the amount for which the
same are sold.
H. Custodian shall not be liable for any loss or diminution of
securities by reason of investment experience or for its
actions taken in reliance upon an instruction from Fund.
I. Custodian shall not be liable for, or considered to be
Custodian of, any money represented by any check, draft, wire
transfer, clearing house funds, uncollected funds, or
instrument for the payment of money received by it on behalf
of Fund, until Custodian actually receives such money,
provided only that it shall advise Fund promptly if it fails
to receive any such money in the ordinary course of business,
and use its best efforts and cooperate with Fund toward the
end that such money shall be received.
J. Except for any subcustodians appointed under Section 2.0,
Custodian shall not be responsible for loss occasioned by the
acts, neglect, defaults or insolvency of any broker, bank,
trust company, or any other person with whom Custodian may
deal in the absence of negligence, or bad faith on the part of
Custodian.
5. COMPENSATION.
Fund will pay to Custodian such compensation as is stated in the Fee
Schedule attached hereto as Exhibit A which may be changed from time to
time as agreed to in writing by Custodian and Fund. Custodian may
charge such compensation against monies held by it for the account of
Fund. Custodian will also be entitled, notwithstanding the provisions
of Sections 4.D or 4.E hereof, to charge
against any monies held by it for the account of Fund or to place a
lien upon the securities or monies of the Fund the amount of any loss,
damage, liability, or expense for which it shall be entitled to
reimbursement under the provisions of this Agreement including fees or
expenses due to Custodian for other services provided to the Fund by
the Custodian or advance and interest due to Custodian under Section
2.R Custodian will not be entitled to reimbursement by Fund for any
loss or expenses of any subcustodian, except for such expenses as would
otherwise be paid by the Fund under this Agreement.
6. TERMINATION.
Either party may terminate this Agreement by notice in writing,
delivered or mailed, postage prepaid, to the other party hereto and
received not less than ninety (90) days prior to the date upon which
such termination will take effect. Upon termination of this Agreement,
Fund will pay to Custodian such compensation for its reimbursable
disbursements, costs and expenses paid or incurred to such date and
Fund will use its best efforts to obtain a successor custodian. Unless
the holders of a majority of the outstanding shares of Capital Stock of
Fund vote to have the securities, funds and other properties held under
this Agreement delivered and paid over to some other person, firm or
corporation specified in the vote, having not less than Two Million
Dollars ($2,000,000) aggregate capital, surplus and undivided profits,
as shown by its last published report, and meeting such other
qualifications for custodian as set forth in the Bylaws of Fund, the
Board of Directors of Fund will, forthwith upon giving or receiving
notice of termination of this Agreement, appoint as successor custodian
a bank or trust company having such qualifications. Custodian will,
upon termination of this Agreement, deliver to the successor custodian
so specified or appointed, at Custodian's office, all securities then
held by Custodian hereunder, duly endorsed and in form for transfer,
and all funds and other properties of Fund deposited with or held by
Custodian hereunder, or will cooperate in effecting changes in
book-entries at the Depository Trust Company or in the Treasury/Federal
Reserve Book Entry System. In the event no such vote has been adopted
by the shareholders of Fund and no written order designating a
successor custodian has been delivered to Custodian on or before the
date when such termination becomes effective, then Custodian will
deliver the securities, funds and properties of Fund to a bank or trust
company at the selection of Custodian and meeting the qualifications
for custodian, if any, set forth in the Bylaws of Fund and having not
less than Two Million Dollars ($2,000,000) aggregate capital, surplus
and undivided profits, as shown by its last published report. Upon
either such delivery to a successor custodian, Custodian will have no
further obligations or liabilities under this Agreement. Thereafter
such bank or trust company will be the successor custodian under this
Agreement and will be entitled to reasonable compensation for its
services. In the event that no such successor custodian can be found,
Fund will submit to its shareholders, before permitting delivery of the
cash and securities owned by
Fund to anyone other than a successor custodian, the question of
whether Fund will be liquidated or function without a custodian.
Notwithstanding the foregoing requirement as to delivery upon
termination of this Agreement, Custodian may make any other delivery of
the securities, funds and property of Fund which is permitted by the
Investment Company Act of 1940, Fund's Articles of Incorporation and
Bylaws then in effect or apply to a court of competent jurisdiction for
the appointment of a successor custodian.
7. 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 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 (30) days written notice by registered mail
to the Fund, by the sale of sufficient securities to satisfy such lien.
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 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.
8. NOTICES.
Notices, requests, instructions and other writings received by Fund at
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000 or at
such other address as Fund may have designated to Custodian in writing,
will be deemed to have been properly given to Fund hereunder; and
notices, requests, instructions and other writings received by
Custodian at its offices at 000 X. Xxxxxx Xxxxxx, 0xx Floor Custody,
St. Xxxx, Minnesota 55101, or to such other address as it may have
designated to Fund in writing, will be deemed to have been properly
given to Custodian hereunder.
9. MISCELLANEOUS.
A. This Agreement is executed and delivered in the State of Minnesota and
shall be governed by the laws of said state.
B. All the terms and provisions of this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the respective successor
and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified, in any
manner except by a written agreement properly authorized and executed
by both parties hereto.
D. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
E. This Agreement shall become effective at the close of business on the
10th day of July 1997.
F. This Agreement may be executed simultaneously in two or more
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
G. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
H. This Agreement may not be assigned by either party without prior
written consent of the other party. 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.
I. 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.
J. Custodian shall not be responsible for, and the Fund does hereby waive
all duties or functions of Custodian (imposed by law or otherwise)
relating to, the withholding and government deposit of any and all
taxes, or amounts with respect thereto, that may be incurred or payable
in connection with the account established hereunder, income or gain
realized on securities held therein or
transactions undertaken with respect thereto. Except as required by law
in such manner that cannot be delegated to or assumed by the Fund,
Custodian shall have no responsibility to undertake any federal, state
or local tax reporting in connection with securities, the account
established hereunder or transactions therein.
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: V.A.M. INSTITUTIONAL FUNDS, INC.
By: By: /s/ Xxxx X. Xxxx
--------------------------------- --------------------------------
Its: Its: President
--------------------------------- --------------------------------
ATTEST: FIRST TRUST NATIONAL ASSOCIATION
By: By: /s/ Xxxxx Xxxxxx
--------------------------------- --------------------------------
Its: Its: Vice President
--------------------------------- --------------------------------
EXHIBIT B
TO
CUSTODIAN AGREEMENT
BETWEEN
VAM INSTITUTIONAL FUNDS, INC.
AND
FIRST TRUST NATIONAL ASSOCIATION
NAME OF SERIES EFFECTIVE DATE
-------------- --------------
Series B--VAM Short Duration Total Return Fund July 11, 1997
Series C--VAM Intermediate Duration Total
Return Fund July 11, 1997
Series D--VAM Core Total Return Fund July 11, 1997
Series E--VAM Mid Cap Stock Fund July 11, 1997
Series F--VAM Growth Stock Fund July 11, 1997
