VIKING MUTUAL FUNDS
CUSTODY AGREEMENT
AGREEMENT dated as of April 17, 2002, between VIKING MUTUAL FUNDS, a
Delaware Business Trust having its principal office and place of business at
0000 00xx Xxxxxx, XX, Xxxxx, Xxxxx Xxxxxx 58701(the Trust), and First Western
Bank & Trust, a state chartered bank with its principal place of business at
000 Xxxxx Xxxxxxxx, Xxxxx, XX 00000 (the Custodian).
W I T N E S S:
That for and in consideration of the mutual promises hereinafter set
forth, the Trust and the Custodian agree as follows:
1. Definitions.
Whenever used in this Agreement or in any Schedules or Appendices to
this Agreement, the following words and phrases, unless the context otherwise
requires, shall have the following meanings:
a) Fund or Funds shall mean any series of the Trust listed in Appendix C
attached hereto.
b) Authorized Person shall be deemed to include the President, and any
Vice President, the Secretary, the Treasurer or any other person,
whether or not any such person is an officer or employee of the
Trust, duly authorized by the Board of Trustees of the Trust to give
Oral Instructions and Written Instructions on behalf of the Funds and
listed in the certification annexed hereto as Appendix A or such
other certification as may be received by the Custodian from time to
time.
c) BookEntry System shall mean the Federal Reserve/Treasury bookentry
system for United States and federal agency Securities, its successor
or successors and its nominee or nominees.
d) Certificate shall mean any notice, instruction or other instrument in
writing, authorized or required by this Agreement to be given to the
Custodian, which is actually received by the Custodian and signed on
behalf of a Fund or the Funds by any Authorized Person or any officer
thereof.
e) Trust Instrument shall mean the Trust Instrument of the Trust dated
March 30, 1999 as the same may be amended from time to time.
f) Depository shall mean The Depository Trust Company (DTC), a clearing
agency registered with the Securities and Exchange Commission under
Section 17(a) of the Securities Exchange Act of 1934, as amended, its
successor or successors and its nominee or nominees, in which the
Custodian is hereby specifically authorized to make deposits. The
term Depository shall further mean and include any other person to be
named in a Certificate authorized to act as a depository under the
1940 Act, its successor or successors and its nominee or nominees.
g) Money Market Security shall be deemed to include, without limitation,
debt obligations issued or guaranteed as to interest and principal by
the Government of the United States or agencies or instrumentalities
thereof, commercial paper, bank certificates of deposit, bankers
acceptances and shortterm corporate obligations, where the purchase
or sale of such securities normally requires settlement in federal
funds on the same day as such purchase or sale, and repurchase and
reverse repurchase agreements with respect to any of the foregoing
types of securities.
h) Investment Company Security shall be deemed to be shares of other
investment companies held by a Fund for investment purposes.
i) Oral Instructions shall mean verbal instructions actually received by
the Custodian from a person reasonably believed by the Custodian to
be an Authorized Person.
j) Prospectus shall mean the Funds current prospectus(es) and statement
of additional information relating to the registration of the Funds
Shares under the Securities Act of 1933, as amended.
k) Shares refers to shares of common stock, $.001 par value per share,
of the Funds.
l) Security or Securities shall be deemed to include bonds, debentures,
notes, stocks, shares, evidences of indebtedness, and other
securities, commodities interests and investments from time to time
owned by the Funds.
m) Transfer Agent shall mean the person that performs as the transfer
agent, dividend disbursing agent and shareholder servicing agent
functions for the Funds.
n) Written Instructions shall mean a written communication actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person by any system whereby the
receiver of such communication is able to verify through codes or
otherwise with a reasonable degree of certainty the authenticity of
the sender of such communication.
o) The 1940 Act refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
2. Appointment of Custodian.
(a) The Trust hereby constitutes and appoints the Custodian as
custodian of all the Securities and monies at the time owned by or in
the possession of the Funds during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth.
3. Compensation.
(a) For the services provided and the expenses assumed by the
Custodian pursuant to this Contract, the Funds will pay the Custodian a
custodian fee, paid monthly as set forth in Appendix D attached hereto.
(b) If this Contract becomes effective or terminates before the end of
any month, the fee for the period from the effective date to the end of the
month or from the beginning of such month to the date of termination, as
the case may be, shall be prorated according to the proportion that such
period bears to the full month in which such effectiveness or termination
occurs.
4. Custody of Cash and Securities.
(a) Receipt and Holding of Assets.
The Funds will deliver or cause to be delivered to the Custodian all
Securities and monies owned by the Funds at any time during the period
of this Agreement. The Custodian will not be responsible for such
Securities and monies until actually received by it. A Fund shall
instruct the Custodian from time to time in its sole discretion, by
means of Written Instructions, or, in connection with the purchase or
sale of Money Market Securities or Investment Company Securities, by
means of Oral Instructions or Written Instructions, as to the manner in
which and in what amounts Securities and monies are to be deposited on
behalf of the Fund in the BookEntry System or the Depository; provided,
however, that prior to the deposit of Securities of the Fund in the
BookEntry System or the Depository, including a deposit in connection
with the settlement of a purchase or sale, the Custodian shall have
received a Certificate specifically approving such deposits by the
Custodian in the BookEntry System or the Depository. Securities and
monies of the Funds deposited in the BookEntry System will be
represented in accounts which include only assets held by the Custodian
for customers, including but not limited to accounts which the Custodian
acts in a fiduciary or representative capacity.
(b) Accounts and Disbursements. The Custodian shall establish and
maintain a separate account for each Fund and shall credit to the
separate account all monies received by it for the account of the Fund
and shall disburse the same only:
1. In payment for Securities purchased for the Fund, as
provided in Section 5 hereof;
2. In payment of dividends or distributions with respect to the
Shares of the Fund, as provided in Section 7 hereof;
3. In payment of original issue or other taxes with respect to
the Shares of the Fund, as provided in Section 8 hereof;
4. In payment for Shares which have been redeemed by the Fund,
as provided in Section 8 hereof;
5. Pursuant to Written Instructions, or with respect to Money
Market Securities or Investment Company Securities, Oral
Instructions or Written Instructions, setting forth the name and
address of the person to whom the payment is to be made, the
amount to be paid and the purpose for which payment is to be made;
or
6. In payment of fees of the Custodian attributable
to the Fund, as provided in Section 3 hereof.
7. In payment of other expenses of a Fund as the Fund or its
other authorized person(s) shall instruct.
(c) Statements. Promptly after the close of business on each day, the
Custodian shall furnish each Fund with a summary of all transfers to or
from the account of the Fund during said day. Where securities
purchased by a Fund are in a fungible bulk of securities registered in
the name of the Custodian (or its nominee) or shown on the Custodians
account on the books of the Depository or the BookEntry System, the
Custodian shall by book entry or otherwise identify the quantity of
those securities belonging to the Fund. At least monthly, the Custodian
shall furnish each Fund with a detailed statement of the Securities and
monies held for the Fund under this Agreement.
(d) Registration of Securities and Physical Separation. All
Securities held for a Fund which are issued or issuable only in bearer
form, except such Securities as are held in the BookEntry System, shall
be held by the Custodian in that form; all other Securities held for a
Fund may be registered in the name of that Fund, in the name of any duly
appointed registered nominee of the Custodian as the Custodian may from
time to time determine, or in the name of the BookEntry System or the
Depository or their successor or successors, or their nominee or
nominees. The Funds reserve the right to instruct the Custodian as to
the method of registration and safekeeping of the Securities. The Funds
agree to furnish to the Custodian appropriate instruments to enable the
Custodian to hold or deliver in proper form for transfer, or to register
in the name of its registered nominee or in the name of the BookEntry
System or the Depository, any Securities which it may hold for the
account of a Fund and which may from time to time be registered in the
name of that Fund. The Custodian shall hold all such Securities
specifically allocated to a Fund which are not held in the BookEntry
System or the Depository in a separate account for that Fund in the name
of that Fund, physically segregated at all times from those of any other
person or persons.
(e) Segregated Accounts. Upon receipt of a Written Instruction the
Custodian will establish segregated accounts on behalf of each Fund to
hold liquid or other assets as it shall be directed by a Written
Instruction and shall increase or decrease the assets in such Segregated
Account only as it shall be directed by subsequent Written Instruction.
(f) Collection of Income and Other Matters Affecting Securities.
Unless otherwise instructed to the contrary by a Written Instruction,
the Custodian by itself, or through the use of the BookEntry System or
the Depository with respect to Securities therein deposited, shall with
respect to all Securities held for a Fund in accordance with this
Agreement:
1. Collect all income due or payable;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed or retired, or
otherwise become payable;
3. Surrender Securities in temporary form for definitive
Securities;
4. Execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or
regulations of any other taxing authority now or hereafter in
effect; and
5. Hold directly, or through the BookEntry System or the
Depository with respect to Securities therein deposited, for the
account of a Fund all rights and similar Securities issued with
respect to any Securities held by the Custodian hereunder for the
Fund.
(g) Delivery of Securities and Evidence of Authority. Upon receipt of
a Written Instruction and not otherwise, except for subparagraphs 5, 6,
7 and 8 of this Section 4(g) which may be effected by Oral or Written
Instructions, the Custodian, directly or through the use of the Book
Entry System or the Depository, shall:
1. Execute and deliver or cause to be executed and delivered to
such persons as may be designated in such Written Instructions,
proxies, consents, authorizations, and any other instruments
whereby the authority of a Fund as owner of any Securities may be
exercised;
2. Deliver or cause to be delivered any Securities held for a
Fund in exchange for other Securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing,
merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege;
3. Deliver or cause to be delivered any Securities held for a
Fund to any protective committee, reorganization committee or
other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement in the separate account for the Fund such certificates
of deposit, interim receipts or other instruments or documents as
may be issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of a Fund
and take such other steps as shall be stated in Written
Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for the
account of a Fund pursuant to Section 5;
6. Deliver Securities upon the receipt of payment in connection
with any repurchase agreement related to such Securities entered
into by a Fund;
7. Deliver Securities owned by a Fund to the issuer thereof or
its agent when such Securities are called, redeemed, retired or
otherwise become payable; provided, however, that in any such case
the cash or other consideration is to be delivered to the
Custodian.
8. Deliver Securities for delivery in connection with any loans
of securities made by a Fund but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian and
the Fund which may be in the form of cash or obligations issued by
the United States government, its agencies or instrumentalities;
9. Deliver Securities for delivery as security in connection
with any borrowings by a Fund requiring a pledge of Fund assets,
but only against receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions from
a Fund for delivery to the Transfer Agent or to the holders of
Shares in connection with distributions in kind, as may be
described from time to time in the Funds Prospectus, in
satisfaction of requests by holders of Shares for repurchase or
redemption;
11. Deliver Securities as collateral in connection with short
sales by a Fund of common stock for which the Fund owns the stock
or owns preferred stocks or debt securities convertible or
exchangeable, without payment or further consideration, into
shares of the common stock sold short;
12. Deliver Securities for any purpose expressly permitted by
and in accordance with procedures described in the Funds
Prospectus; and
13. Deliver Securities for any other proper business purpose,
but only upon receipt of, in addition to Written Instructions, a
certified copy of a resolution of the Board of Trustees signed by
an Authorized Person and certified by the Secretary of the Trust,
specifying the Securities to be delivered, setting forth the
purpose for which such delivery is to be made, declaring such
purpose to be a proper business purpose, and naming the person or
persons to whom delivery of such Securities shall be made.
(h) Endorsement and Collection of Checks, Etc. The Custodian is
hereby authorized to endorse and collect all checks, drafts or other
orders for the payment of money received by the Custodian for the
accounts of the Funds.
5. Purchase and Sale of Investments of the Funds.
(a) Promptly after each purchase of Securities for a Fund, the Fund
shall deliver to the Custodian (i) with respect to each purchase of
Securities which are not Money Market Securities or Investment Company
Securities, a Written Instruction, and (ii) with respect to each
purchase of Money Market Securities or Investment Company Securities,
either a Written Instruction or Oral Instruction, in either case
specifying with respect to each purchase: (1) the name of the issuer and
the title of the Securities; (2) the number of shares or the principal
amount purchased and accrued interest, if any; (3) the date of purchase
and settlement; (4) the purchase price per unit; (5) the total amount
payable upon such purchase; and (6) the name of the person from whom or
the broker through whom the purchase was made, if any. The Custodian
shall receive the Securities purchased by or for a Fund and upon receipt
of Securities shall pay out of the monies held for the account of the
Fund the total amount payable upon such purchase, provided that the same
conforms to the total amount payable as set forth in such Written or
Oral Instruction.
(b) Promptly after each sale of Securities of a Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities
which are not Money Market Securities or Investment Company Securities,
a Written Instruction, and (ii) with respect to each sale of Money
Market Securities or Investment Company Securities, either Written
Instruction or Oral Instruction, in either case specifying with respect
to such sale: (1) the name of the issuer and the title of the
Securities; (2) the number of shares or principal amount sold, and
accrued interest, if any; (3) the date of sale; (4) the sale price per
unit; (5) the total amount payable to the Fund upon such sale; (6) the
name of the broker through whom or the person to whom the sale was made.
The Custodian shall deliver or cause to be delivered the Securities to
the broker or other person designated by the Fund upon receipt of the
total amount payable to the Fund upon such sale, provided that the same
conforms to the total amount payable to the Fund as set forth in such
Written or Oral Instruction. Subject to the foregoing, the Custodian
may accept payment in such form as shall be satisfactory to it, and may
deliver Securities and arrange for payment in accordance with the
customs prevailing among dealers in Securities.
6. Lending of Securities.
(a) If a Fund is permitted by the terms of the Trust Instrument
and as disclosed in its Prospectus to lend Securities, within 24 hours
after each loan of Securities, the Fund shall deliver to the Custodian a
Written Instruction specifying with respect to each such loan: (i) the
name of the issuer and the title of the Securities; (ii) the number of
shares or the principal amount loaned; (iii) the date of loan and
delivery; (iv) the total amount to be delivered to the Custodian, and
specifically allocated against the loan of the Securities, including the
amount of cash collateral and the premium, if any, separately
identified; (v) the name of the broker, dealer or financial institution
to which the loan was made. The Custodian has no obligation or
requirement to verify whether the Trust Instrument permits the Fund to
lend Securities.
(b) Promptly after each termination of a loan of Securities, the Fund
shall deliver to the Custodian a Written Instruction specifying with
respect to each such loan termination and return of Securities: (i) the
name of the issuer and the title of the Securities to be returned; (ii)
the number of shares or the principal amount to be returned; (iii) the
date of termination; (iv) the total amount to be delivered by the
Custodian (including the cash collateral for such Securities minus any
offsetting credits as described in said Written Instruction); (v) the
name of the broker, dealer or financial institution from which the
Securities will be returned. The Custodian shall receive all Securities
returned from the broker, dealer or financial institution to which such
Securities were loaned and upon receipt thereof shall pay the total
amount payable upon such return of Securities as set forth in the
Written Instruction. Securities returned to the Custodian shall be held
as they were prior to such loan.
7. Payment of Dividends or Distributions.
(a) Each Fund shall furnish to the Custodian the vote of the Board of
Trustees of the Trust certified by the Secretary authorizing the
declaration of distributions on a specified periodic basis.
(b) In accordance with the authorization of the Board of Trustees of
the Trust, the Custodian shall pay out the total amount payable.
8. Sale and Redemption of Shares of the Funds.
(a) Whenever a Fund shall sell any Shares, the Fund or its Transfer
Agent shall deliver or cause to be delivered to the Custodian the amount
of money received for the sale of such Shares.
(b) Upon receipt of such money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 8, the Custodian shall pay all original issue
or other taxes required to be paid in connection with such issuance upon
the receipt of a Written Instruction specifying the amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed,
the Fund or its Transfer Agent shall promptly furnish to the Custodian
Written Instructions, specifying the amount to be paid for the Shares
redeemed. Upon receipt of such written instructions, the Custodian
shall make payment.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by a Fund,
the Custodian, unless otherwise instructed by a Written Instruction
shall, honor the check presented as part of such check redemption
privilege out of the monies specifically allocated to the Fund for such
purpose.
9. Indebtedness.
(a) Each Fund will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the Fund borrows money for
temporary administrative or emergency purposes using Securities as
collateral for such borrowings, a notice or undertaking in the form
currently employed by any such bank setting forth the amount which such
bank will loan to the Fund against delivery of a stated amount of
collateral. The Fund shall promptly deliver to the Custodian Written
Instructions stating with respect to each such borrowing: (1) the name
of the bank; (2) the amount and terms of the borrowing, which may be set
forth by incorporating by reference an attached promissory note, duly
endorsed by the Fund, or other loan agreement; (3) the time and date, if
known, on which the loan is to be entered into (the borrowing date); (4)
the date on which the loan becomes due and payable; (5) the total amount
payable to the Fund on the borrowing date; (6) the market value of
Securities to be delivered as collateral for such loan, including the
name of the issuer, the title and the number of shares or the principal
amount of any particular Securities; and (7) a statement that such loan
is in conformance with the 1940 Act and the Funds Prospectus.
(b) Upon receipt of the Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the borrowing
date the specified collateral and the executed promissory note, if any,
against delivery by the lending bank of the total amount of the loan
payable, provided that the same conforms to the total amount payable as
set forth in the Written Instruction. The Custodian may, at the option
of the lending bank, keep such collateral in its possession, but such
collateral shall be subject to all rights therein given the lending bank
by virtue of any promissory note or loan agreement. The Custodian shall
deliver as additional collateral in the manner directed by a Fund from
time to time such Securities as may be specified in Written Instruction
to collateralize further any transaction described in this Section 9.
The Fund shall cause all Securities released from collateral status to
be returned directly to the Custodian, and the Custodian shall receive
from time to time such return of collateral as may be tendered to it.
In the event that a Fund fails to specify in Written Instruction all of
the information required by this Section 9, the Custodian shall not be
under any obligation to deliver any Securities. Collateral returned to
the Custodian shall be held hereunder as it was prior to being used as
collateral.
10. Opinion of Trusts Independent Accountant.
The Custodian shall take all reasonable action, as the Trust on behalf
of each applicable Fund may from time to time request, to provide
information to, and cooperate with, the Trusts independent accountant
with respect to the Custodians activities hereunder in connection with
the preparation of the Trusts Form N1A, and Form NSAR or other annual
reports to the Securities and Exchange Commission and with respect to
any other requirements of the Commission.
11. Persons Having Access to Assets of the Funds.
(a) No trustee or agent of the Trust or the Funds, and no officer,
director, employee or agent of the Funds investment adviser, of any
subadviser of the Fund, or of the Funds administrator, shall have
physical access to the assets of a Fund held by the Custodian or be
authorized or permitted to withdraw any investments of the Fund, nor
shall the Custodian deliver any assets of a Fund to any such person. No
officer, director, employee or agent of the Custodian who holds any
similar position with the Funds investment adviser, with any sub
adviser of the Funds or with the Funds administrator shall have access
to the assets of the Funds.
(b) Nothing in this Section 11 shall prohibit any officer, employee or
agent of the Trust or the Funds, or any officer, trustee, employee or
agent of the investment adviser, of any subadviser of the Funds or of
the Funds administrator, from giving Oral Instructions or Written
Instructions to the Custodian or executing a Certificate so long as it
does not result in delivery of or access to assets of the Funds
prohibited by paragraph (a) of this Section 11.
12. Overdraft Facility and Security for Payment.
In the event that the Custodian is directed by Written Instruction
(or Oral Instruction confirmed in writing) to make any payment or
transfer of funds on behalf of a Fund for which there would be, at the
close of business on the date of such payment or transfer, insufficient
funds held by the Custodian on behalf of the Fund, the Custodian may, in
its sole discretion, provide an overdraft (an Overdraft) to the Fund in
an amount sufficient to allow the completion of such payment or
transfer. The Custodian shall have authority over which account of the
Fund held at the Custodian to overdraft (i.e. the Custodian may transfer
funds from a demand deposit account (DDA) to a trust department account
to cause the overdraft of the DDA account in lieu of the trust account).
Any Overdraft provided hereunder: (a) shall be payable on the next
Business Day, unless otherwise agreed by the Fund and the Custodian; and
(b) shall accrue interest or fees from the date of the Overdraft to the
date of payment in full by the Fund at such rates as agreed upon in
writing, from time to time, by the Custodian and the Fund. The
Custodian and the Funds acknowledge that the purpose of such Overdraft
is to temporarily finance the purchase of securities for prompt delivery
in accordance with the terms hereof, to meet unanticipated or unusual
redemptions, or to meet other emergency expenses not reasonably
foreseeable by the Funds. The Custodian shall promptly notify a Fund (an
Overdraft Notice) of any Overdraft by facsimile transmission or in such
other manner as the Funds and the Custodian may agree. To secure
payment of any Overdraft, the Funds hereby grant to the Custodian a
continuing security interest in the Securities in each Funds account
from time to time in the full amount of such Overdraft. In such case,
the Custodian shall be entitled to take such action(s) or exercise such
options, powers and rights as the Custodian now or hereafter has as a
secured creditor under the Delaware Uniform Commercial Code or any other
applicable law.
13. Concerning the Custodian.
(a) Standard of Conduct. Except as otherwise provided herein, neither
the Custodian nor its nominee shall be liable for any loss or damage,
including counsel fees, resulting from its action or omission to act or
otherwise, except for any such loss or damage arising out of its own
negligence or willful misconduct. The Custodian shall be liable to the
Funds for any loss or damage resulting from the use of the BookEntry
System or the Depository arising by reason of any negligence,
misfeasance or misconduct on the part of the Custodian or any of its
employees or agents.
(b) Limit of Duties. Without limiting the generality of the
foregoing, the 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 a
Fund, the legality of the purchase thereof, or the propriety of
the amount paid therefor;
2. The legality of the sale of any Securities by a Fund or the
propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefore;
4. The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor;
5. The legality of the declaration or payment of any
distribution of a Fund; or
6. The legality of any borrowing for temporary or emergency
administrative purposes.
(c) No Liability Until Receipt. The Custodian shall not be liable
for, or considered to be the Custodian of, any money, whether or not
represented by any check, draft, or other instrument for the payment of
money, received by it on behalf of a Fund until the Custodian actually
receives and collects such money directly or by the final crediting of
the account representing the Funds interest in the BookEntry System or
the Depository.
(d) Amounts Due from Transfer Agent. The Custodian shall not be under
any duty or obligation to take action to effect collection of any amount
due to a Fund from the Transfer Agent nor to take any action to effect
payment or distribution by the Transfer Agent of any amount paid by the
Custodian to the Transfer Agent in accordance with this Agreement.
(e) Collection Where Payment Refused. The Custodian shall not be
under any duty or obligation to take action to effect collection of any
amount, if the Securities upon which such amount is payable are in
default, or if payment is refused after due demand or presentation,
unless and until (a) it shall be directed to take such action by a
Certificate and (b) it shall be assured to its satisfaction of
reimbursement of its costs and expenses in connection with any such
action.
(f) Appointment of Agents and SubCustodians. The Custodian may
appoint one or more banking institutions, including but not limited to
banking institutions located in foreign countries, to act as Depository
or Depositories or as Subcustodian or as Sub custodians of Securities
and monies at any time owned by the Funds, upon terms and conditions
specified in a Certificate. If it is authorized to do so, the Custodian
shall use reasonable care in selecting a Depository and/or Subcustodian
located in a country other than the United States (Foreign Sub
custodian), and shall oversee the maintenance of any Securities or
monies of the Funds by any Foreign Subcustodian. In addition, the
Custodian shall hold the Funds harmless from, and indemnify the Funds
against, any loss that occurs as a result of the failure of any Foreign
Subcustodian to exercise reasonable care with respect to the
safekeeping of Securities and monies of the Funds.
(g) No Duty to Ascertain Authority. The Custodian shall not be under
any duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for a Fund are such as may properly be held
by the Fund under the provisions of the Trust Instrument and the Funds
Prospectus.
(h) Reliance on Certificates and Instructions. The Custodian shall be
entitled to rely upon any Certificate, notice or other instrument in
writing received by the Custodian and reasonably believed by the
Custodian to be genuine and to be signed by an officer of the Trust.
The Custodian shall be entitled to rely upon any Written Instruction or
Oral Instruction actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by the
Custodian to be genuine and to be given by an Authorized Person. The
Funds agree to forward to the Custodian Written Instructions from an
Authorized Person confirming such Oral Instructions in such manner so
that such Written Instructions are received by the Custodian, whether by
hand delivery, telex or otherwise, by the close of business on the same
day that such Oral Instructions are given to the Custodian. The Funds
agree that the fact that such confirming instructions are not received
by the Custodian shall in no way affect the validity of the transactions
or enforceability of the transactions hereby authorized by the Funds.
The Funds agree that the Custodian shall incur no liability to the Funds
in acting upon Oral Instructions given to the Custodian hereunder
concerning such transactions, provided such instructions reasonably
appear to have been received from a duly Authorized Person.
(i) Inspection of Books and Records. The books and records of the
Custodian shall be open to inspection and audit at reasonable times by
officers and auditors employed by the Fund and by the appropriate
employees of the Securities and Exchange Commission.
The Custodian shall provide the Fund with any report obtained by
the Custodian on the system of internal accounting control of the Book
Entry System or the Depository and with such reports on its own systems
of internal accounting control as the Fund may reasonably request from
time to time.
14. Liability, Loss or Damages.
(a) Each party hereto agrees that it will indemnify the other party
for any loss, expense or liability arising out of any action taken or
omitted by such other party under this Agreement in good faith and
without negligence or willful misconduct.
(b) As a condition of the indemnification provided for in this
Section 14, if in any case the indemnifying party is asked to indemnify
and hold the indemnified party harmless, the indemnified party shall
fully and promptly notify the indemnifying party of any situation which
presents or appears likely to present the probability of such a claim
for indemnification against the indemnifying party. The indemnifying
party shall be entitled, at its own expense, to participate in the
investigation and to be consulted as to the defense of any such claim,
and in such event, the indemnified party shall keep the indemnifying
party fully and currently informed of all developments relating to such
investigation or defense. At any time, the indemnifying party shall be
entitled at its own expense to conduct the defense of any such claim,
provided that the indemnifying party: (a) reasonably demonstrates to
the other party its ability to pay the full amount of potential
liability in connection with such claim and (b) first admits in writing
to the other party that such claim is one in respect of which the
indemnifying party is obligated to indemnify the other party hereunder.
Upon satisfaction of the foregoing conditions, the indemnifying party
shall take over the complete defense of the claim, and the indemnified
party shall initiate no further legal or other expenses for which it
shall seek indemnification. The indemnified party shall in no case
confess any claim or make any compromise in any case in which the
indemnifying party may be asked to indemnify the indemnified party,
except with the indemnifying partys prior written consent.
(c) Indemnity under this Agreement shall exist throughout the
duration of this Agreement. Furthermore, the indemnity provided under
this Agreement shall include coverage for any loss, expense or liability
arising after the termination of this Agreement provided that such loss,
expense or liability relates to action taken or omitted by a party
hereto, under this Agreement and during the term of this Agreement, in
good faith and without negligence or willful misconduct.
15. Additional Funds.
In the event that the Trust establishes one or more new series of
shares with respect to which it desires to have the Custodian render
services as custodian under the terms of this Agreement, it shall so
notify the Custodian in writing, and if the Custodian agrees in writing
to provide such services, such series of shares shall become a Fund
hereunder.
16. Limitation of Trustee, Officer and Shareholder Liability.
It is expressly agreed that the obligations of the Trust and each
Fund hereunder shall not be binding upon any of the trustees, officers,
agents or employees of the Trust or upon the shareholders of the Funds
personally, but shall only bind the assets and property of the Trust, as
provided in its Trust Instrument. The execution and delivery of this
Agreement have been authorized by the trustees of the Trust, and this
Agreement has been executed and delivered by an authorized officer of
the Trust acting as such; neither such authorization by such trustees
nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any
of them personally, but shall bind only the assets and property of the
Trust, as provided in its Trust Instrument.
17. Term and Termination.
(a) This Agreement shall become effective on the date first set forth
above (the Effective Date) and shall continue in effect thereafter as
the parties may mutually agree.
(b) Either of the parties hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of
such termination, which shall be not less than 60 days after the date of
receipt of such notice. In the event such notice is given by the Trust,
it shall be accompanied by a certified vote of the Board of Trustees of
the Trust, electing to terminate this Agreement and designating a
successor custodian or custodians, which shall be a person qualified to
so act under the 1940 Act.
In the event such notice is given by the Custodian, the Trust
shall, on or before the termination date, deliver to the Custodian a
certified vote of the Board of Trustees of the Trust, designating a
successor custodian or custodians. In the absence of such designation
by the Trust, the Custodian may designate a successor custodian, which
shall be a person qualified to so act under the 0000 Xxx. If the Trust
fails to designate a successor custodian, the Trust shall upon the date
specified in the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities (other than Securities held
in the BookEntry System which cannot be delivered to the Funds) and
monies then owned by the Funds, be deemed to be its own custodian, and
the Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the duty with
respect to Securities held in the BookEntry System which cannot be
delivered to the Funds.
(c) Upon the date set forth in such notice under paragraph (b) of this
Section 17, this Agreement shall terminate to the extent specified in
such notice, and the Custodian shall upon receipt of a notice of
acceptance by the successor custodian on that date deliver directly to
the successor custodian all Securities and monies then held by the
Custodian on behalf of the Funds, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall then be
entitled.
18. Miscellaneous.
(a) Annexed hereto as Appendix A is a certification signed by the
Secretary of the Trust setting forth the names and the signatures of the
present Authorized Persons. The Trust agrees to furnish to the
Custodian a new certification in similar form in the event that any such
present Authorized Person ceases to be such an Authorized Person or in
the event that other or additional Authorized Persons are elected or
appointed. Until such new certification shall be received, the
Custodian shall be fully protected in acting under the provisions of
this Agreement upon Oral Instructions or signatures of the present
Authorized Persons as set forth in the last delivered certification.
(b) Annexed hereto as Appendix B is a certification signed by the
Secretary of the Trust setting forth the names and the signatures of
certain officers of the Trust. The Trust agrees to furnish to the
Custodian a new certification in similar form in the event any such
present officer ceases to be an officer of the Trust or in the event
that other or additional officers are elected or appointed. Until such
new certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement upon the
signature of the officers as set forth in the delivered certification.
(c) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Custodian, shall be sufficiently
given if addressed to the Custodian and mailed or delivered to it at its
offices at 000 Xxxxx Xxxxxxxx, Xxxxx, XX 00000 or at such other place as
the Custodian may from time to time designate in writing.
(d) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Trust or the Funds, shall be
sufficiently given if addressed to the Trust and mailed or delivered to
it at its offices at 0000 00xx Xxxxxx, XX, Xxxxx, Xxxxx Xxxxxx 00000 or
at such other place as the Trust may from time to time designate in
writing.
(e) This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the same formality
as this Agreement, (i) authorized and approved by a vote of the Board of
Trustees of the Trust, including a majority of the members of the Board
of Trustees of the Trust who are not interested persons of the Trust (as
defined in the 1940 Act), or (ii) authorized and approved by such other
procedures as may be permitted or required by the 1940 Act.
(f) This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Trust
without the written consent of the Custodian, or by the Custodian
without the written consent of the Trust authorized or approved by a
vote of the Board of Trustees of the Trust, and any attempted assignment
without such written consent shall be null and void.
(g) The Trust represents that a copy of the Trust Instrument is on
file with the State of Delaware.
(h) This Agreement shall be construed in accordance with the laws of
the State of Delaware.
(i) The captions of the 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.
(j) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duty authorized as of the day and
year first above written.
VIKING MUTUAL FUNDS
BY: ______________________________
Name: Xxxxxxx X. Xxxxx
Title: President
FIRST WESTERN BANK & TRUST
By: _______________________________
Name:
Title:
APPENDIX A
I, Xxxxxxx X. Xxxxxx, Secretary of Viking Mutual Funds, a business trust
organized under the laws of the State of Delaware (the Trust), do hereby
certify that:
The following individuals have been duly authorized as Authorized
Persons to give Oral Instructions and Written Instructions on behalf of the
Trust and the signatures set forth opposite their respective names are their
true and correct, signatures:
Name Signature
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx ______________________________
Xxxx X. Xxxxxxx ______________________________
Xxxx X. Xxxxxxxx ______________________________
Xxxxxxx X. Xxxxx ______________________________
Xxxxxxxx X. Xxxx ______________________________
Xxxxx X. Xxxxx ______________________________
Dated:
APPENDIX B
I, Xxxxxxx X. Xxxxxx, Secretary of Viking Mutual Funds, a business trust
organized under the laws of The State of Delaware (the Trust), do hereby
certify that:
The following individuals serve in the following positions with the
Trust and each individual has been duly elected or appointed to each such
position and qualified therefor in conformity with the Trusts Trust
Instrument and the signatures set forth opposite their respective names are
their true and correct signatures:
Name Position Signature
Xxxxxxx X. Xxxxx President and Treasurer
Xxxxxxx X. Xxxxxx Vice President and Secretary
Dated:
APPENDIX C
FUNDS SUBJECT TO AGREEMENT
Viking LargeCap Value Fund
Viking TaxFree Fund for North Dakota
Viking TaxFree Fund for Montana
Viking SmallCap Value Fund
DATE:
APPENDIX D
SCHEDULE OF COMPENSATION
Monthly Fee
$1,150.00
DATE:
14
DC293425.01
