Exhibit 2(k)(ii)
RECORDKEEPING AGREEMENT
This RECORDKEEPING AGREEMENT (this "Agreement") is made as of this 15th day
of December, 2000, by and between ING PILGRIM SENIOR INCOME FUND, a Delaware
business trust, having its principal place of business at 0000 X. Xxxxxxxxxx
Xxxxx Xxxx, Xxxxxxxxxx, XX, 00000-0000 ("Fund"), and STATE STREET BANK AND TRUST
COMPANY, a state chartered trust company organized and existing under the laws
of the Commonwealth of Massachusetts, having its principal place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("State Street").
In consideration of the mutual promises herein contained, the parties
hereto, intending to be legally bound, mutually covenant and agree as follows:
1. APPOINTMENT OF RECORDKEEPING AGENT. Fund hereby constitutes and appoints
State Street as Recordkeeping Agent for the Fund to perform certain accounting
and recordkeeping functions related to portfolio transactions required of Fund
as a registered investment company in compliance with Rule 31a of the Investment
Company Act of 1940 ("1940 Act") and to calculate daily the Fund's net asset
value.
2. REPRESENTATIONS AND WARRANTIES OF FUND.
A. Fund represents and warrants that it is a business trust duly
organized as heretofore described and existing and in good
standing under the laws of Delaware.
B. Fund represents and warrants that it has the power and authority
under applicable laws, its articles of incorporation and bylaws,
and has taken all action necessary, to enter into and perform
this Agreement.
C. Fund represents and warrants that it has determined that the
computerized recordkeeping systems to be used by State Street in
maintaining accounting records of Fund hereunder, the "Portfolio
Accounting System" and the "Loan Servicing System," are
appropriate and suitable for Fund's needs.
D. State Street may provide Fund, and its designated investment
advisors, consultants or other third parties authorized by State
Street who agree to abide by the terms of this Agreement
("Authorized Designees") with access on a remote basis to certain
computer systems for the purpose of obtaining and analyzing
reports and information (the "Remote Access Services"), on the
following terms:
In the absence of any other written agreement concerning such
additional systems, the term "Remote Access Services" shall include,
and this Agreement shall govern, the Fund's access to and use of any
additional systems made available by State Street and/or accessed by
the Fund.
Fund agrees to comply, and to cause its Authorized Designees to
comply, with remote access operating standards and procedures and with
user identification or other password control requirements and other
security procedures as may be issued from time to time by State Street
for use of the Remote Access Services. Fund agrees to advise State
Street immediately in the event that it learns or has reason to
believe that any person to whom Fund has given access to the Remote
Access Services has violated or intends to violate the terms of this
Agreement and will cooperate with State Street in seeking injunctive
or other equitable relief. Fund agrees to discontinue use of the
Remote Access Services, if requested, for any security reasons cited
by State Street.
The Remote Access Services described herein and the databases,
computer programs, screen formats, report formats, interactive design
techniques, formulae, processes, systems, software, knowhow,
algorithms, programs, training aids, printed materials, methods,
books, records, files, documentation and other information made
available to Fund by State Street as part of the Remote Access
Services and all copyrights, patents, trade secrets and other
proprietary rights of State Street related thereto are the exclusive,
valuable and confidential property of State Street and its relevant
licensors (the "Proprietary Information"). Fund agrees on its behalf
and on behalf of its Authorized Designees to keep the Proprietary
Information confidential and to limit access to its employees and
Authorized Designees (under a similar duty of confidentiality) who
require access to the Remote Access Services for the purposes
intended. In the event of termination of this Agreement, Fund will
return to State Street all copies of documentation and other
Proprietary Information in its possession or in the possession of its
Authorized Designees. The foregoing shall not apply to Proprietary
Information in the public domain or required by law to be made public.
Fund agrees to use the Remote Access Services only in connection with
the proper purposes of this Agreement. Fund will not, and will cause
its employees and Authorized Designees not to, (i) permit any third
party to use the Remote Access Services, (ii) sell, rent, license or
otherwise use the Remote Access Services in the operation of a service
bureau or for any purpose other than as expressly authorized under
this Agreement, (iii) use the the Remote Access Services for any fund,
trust or other investment vehicle without the prior written consent of
State Street, or (iv) allow or cause any information transmitted from
State Street's databases, including data from third party sources,
available through use of the Remote Access Services, to be
redistributed or retransmitted for other than use for or on behalf of
Fund, as State Street's Customer.
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Fund will not, and will cause its employees and Authorized Designees
not to, modify the Remote Access Services in any way, enhance or
otherwise create derivative works based upon the Remote Access
Services, nor will Fund or its Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or
any part of the Remote Access Services.
Fund acknowledges that the disclosure of any Proprietary Information,
or of any information which at law or equity ought to remain
confidential, will immediately give rise to continuing irreparable
injury to State Street inadequately compensable in damages at law and
that State Street shall be entitled to obtain immediate injunctive
relief against the breach or threatened breach of any of the foregoing
undertakings, in addition to any other legal remedies which may be
available.
State Street represents and warrants that it is the owner of and has
the right to grant access to the Remote Access Services contemplated
herein. Because of the nature of computer information technology and
the necessity of relying upon third party sources, and data and
pricing information obtained from third parties, the Remote Access
Services are provided "AS IS", and Fund and its Authorized Designees
shall be solely responsible for the investment decisions, regulatory
reports and statements produced using the Remote Access Services.
State Street and its relevant licensors will not be liable to Fund or
its Authorized Designees for any direct or indirect, special,
incidental, punitive or consequential damages arising out of or in any
way connected with the Remote Access Services, nor shall either party
be responsible for delays or nonperformance under this Agreement
arising out of any cause or event beyond such party's control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STATE STREET FOR
ITSELF AND ITS RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES CONCERNING THE SERVICES TO BE RENDERED HEREUNDER, WHETHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF
MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE.
State Street will defend or, at its option, settle any claim or action
brought against Fund to the extent that it is based upon an assertion
that access to or use of the Remote Access Services by Fund under this
Agreement constitutes direct infringement of any United States patent
or copyright or misappropriation of a trade secret, provided that Fund
notifies State Street promptly in writing of any such claim or
proceeding and cooperates with State Street in the defense of such
claim or proceeding. Should the Remote Access Services or any part
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thereof become, or in State Street's opinion be likely to become, the
subject of a claim of infringement or the like under the patent or
copyright or trade secret laws of the United States, State Street
shall have the right, at State Street's sole option, to (i) procure
for Fund the right to continue using the Remote Access Services, (ii)
replace or modify the Remote Access Services so that the Remote Access
Services becomes noninfringing, or (iii) terminate the Remote Access
Services without further obligation.
3. REPRESENTATION AND WARRANTIES OF STATE STREET.
A. It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
B. It has the requisite power and authority under applicable laws,
by its charter and bylaws, and by agreement to enter into this
Agreement and has taken all action necessary to enter into and
perform the services contemplated herein and this Agreement has
been duly executed and delivered by State Street and constitutes
a legal, valid and binding obligation of State Street,
enforceable in accordance with its terms.
4. DELIVERY OF ACCOUNTS AND RECORDS; RELIANCE BY STATE STREET.
A. Fund shall turn over to State Street all of Fund's accounts and
records previously maintained. State Street 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 State Street harmless of and from any and all
expenses, damages and losses whatsoever arising out of or in
connection with any error, 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 in a timely manner
any other information needed by State Street to perform its
function hereunder.
5. DUTIES AND RESPONSIBILITIES OF STATE STREET.
A. State Street, with the direction and as interpreted by the Fund
or Fund's accountants and/or other advisors, will prepare and
maintain in complete, accurate, and current form all accounts and
records needed to be maintained as a basis for calculation of the
Fund's net asset value and as further agreed upon by the parties
in writing, and will preserve such records in the manner and for
the periods required by the 1940 Act or such longer period as the
parties may agree upon in writing.
B. Unless the information necessary to perform the above functions
is furnished in writing or its electronic or digital equivalent
to State Street prior to the next close of the New York Stock
Exchange and calculation of the Fund's net asset value, State
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Street shall incur no liability and the Fund shall indemnify and
hold State Street harmless from and against any liability in
connection therewith.
C. It shall be the responsibility of Fund to furnish State Street
with the declaration, record and payment dates and amounts of any
dividends or income and any other special actions required
concerning the assets in the portfolio when such information is
not readily available from generally accepted securities industry
services or publications or documents in State Street's
possession.
D. The accounts and records maintained and preserved by State Street
shall be the property of the Fund and shall be made available to
the Fund for inspection or reproduction within a reasonable time,
upon demand.
E. State Street shall assist Fund's independent accountants, or upon
approval of Fund or upon demand, any regulatory body, in any
requested review of Fund's accounts and records maintained by
State Street but shall be reimbursed by Fund for all expenses and
employee time invested in any such review outside of routine and
normal periodic reviews.
F. Upon receipt from Fund of any necessary information, State Street
shall provide information from the books and records it maintains
for Fund that Fund needs for tax returns, questionnaires, or
periodic reports to shareholders and such other reports and
information requests as Fund and State Street shall agree upon
from time to time.
G. State Street and Fund may from time to time adopt procedures as
they agree upon, and State Street may conclusively assume that
any procedure approved by Fund, or directed by Fund, does not
conflict with or violate any requirements of Fund's prospectus,
declaration of trust, bylaws, or any rule or regulation of any
applicable regulatory body or governmental agency. Fund shall be
responsible to notify State Street of any changes in statutes,
rules, requirements, or policies which may necessitate changes in
State Street's responsibilities or procedures.
H. State Street will calculate the Fund's net asset value in
accordance with the Fund's prospectus once daily. State Street
will price the securities and foreign currency holdings of the
Portfolios for which market quotations are available by the use
of outside services designated by Fund which are normally used
and contracted with for this purpose; all other securities and
foreign currency holdings and all loans and interests in loans
held by the Fund will be priced in accordance with Fund's
instructions.
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6. LIMITATION OF LIABILITY OF STATE STREET.
A. State Street shall not be responsible or liable for, and Fund
shall indemnify and hold State Street harmless from and against,
any loss or liability arising out of State Street's action or
omission to act pursuant hereto, except for any loss or damage
arising from any negligent act or willful misconduct of State
Street. The Fund agrees to minimize any potential monetary
loss(es) by reprocessing shareholder transactions or employing
any other customary procedures to reduce such monetary loss(es).
Neither party shall be liable to the other for consequential,
special, or punitive damages. State Street may request and obtain
the advice and opinion of counsel for Fund or its own counsel at
the expense of Fund 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. State Street may rely upon the advice and statements of Fund, its
distributor, its management company and its accountants, officers
and other authorized individuals (as provided by corporate
resolution to State Street) and others believed by it in good
faith to be expert in matters upon which they are consulted.
Actions or inaction taken in reliance on such advice and
statements shall not be considered "negligent" and State Street
shall not be liable for any actions taken in good faith upon such
advice and statements.
C. If Fund requests State Street in any capacity to take any action
which involves the payment of money by it, or which in State
Street's opinion might make it liable for payment of money or in
any other way, State Street shall be and be kept indemnified by
Fund in an amount and form satisfactory to State Street against
any liability on account of such action; provided, however that
State Street shall not be obligated to expend its own moneys or
to take any such action except in State Street's sole discretion.
D. State Street shall be entitled to receive and Fund agrees to pay
to State Street, on demand, reimbursement for such cash
disbursements, costs and expenses as may be agreed upon in
writing from time to time by Xxxxx Xxxxxx xxx Xxxx.
X. Xxxxx Xxxxxx shall be protected in acting hereunder upon any
instructions, advice, notice, request, consent, certificate or
other instrument or paper 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 as determined by State Street, instructions or a
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certificate signed by Fund's President or other officer of Fund
as requested by State Street.
F. Without limiting the generality of the foregoing, State Street
shall be under no duty or obligation to inquire into, and shall
not be liable for:
(i) The validity of the issue of any assets purchased by or for
Fund, or the legality of the purchase thereof, the validity,
completeness, correctness or sufficiency of any loan
documents, the sufficiency of the evidence of ownership of
any assets of Fund, or the propriety of the decision to
purchase or amount paid for any assets;
(ii) The legality of the sale of any assets by or for Fund, or
the propriety of the amount for which the same are sold;
(iii) The legality of the issue or sale of any shares of Fund, or
the sufficiency of the amount to be received therefore;
(iv) The legality of the repurchase or redemption of any shares
of Fund, or the propriety of the amount to be paid
therefore; or
(v) The legality of the declaration of any dividend by Fund, or
the legality of the issue of any shares of Fund in payment
of any dividend.
G. State Street shall not be liable for, or considered to be the
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
State Street actually receives such money, provided only that it
shall advise Fund promptly if it fails to receive any such moneys
in the ordinary course of business, and use reasonable efforts
and cooperate with Fund toward the end that such money shall be
received.
H. Notwithstanding anything herein to the contrary, it is expressly
understood and agreed that State Street shall have no
responsibility to Fund, the Fund's shareowners or any other
person or entity for moneys or securities of Fund held by banks
or trust companies as custodians in the absence of negligence or
willful misconduct of State Street.
I. State Street shall not use any information made available to it
under the terms of this Agreement for any purpose other than
complying with its duties and responsibilities under this
Agreement or as specifically authorized by Fund in writing to
State Street.
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7. FORCE MAJEURE. State Street shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation any interruption, loss or malfunction of
any utility, transportation, computer (hardware or software) or communication
service; or inability to obtain labor, material, equipment or transportation;
nor shall any such failure or delay give Fund any additional right to terminate
this Agreement.
8. COMPENSATION. Fund shall pay to State Street such compensation at such
time as may from time to time be agreed upon in writing by State Street and
Fund. Fund shall also reimburse State Street for all out-of-pocket expenses
incurred by State Street in connection with services performed pursuant to this
Agreement.
9. PROCEDURES. State Street and Fund may from time to time adopt procedures
as they agree upon, and State Street may conclusively assume that any procedure
approved or directed by Fund or its accountants or other advisors does not
conflict with or violate any requirements of Fund's prospectus, articles of
incorporation, bylaws, any applicable law, rule or regulation, or any order,
decree or agreement by which the Fund may be bound.
10. TERMINATION. This Agreement shall continue in effect until terminated
by either party by notice in writing received by the other party not less than
ninety (90) days prior to the date upon which such termination shall take
effect. Upon termination of this Agreement:
A. Fund shall pay to State Street its fees and compensation due
hereunder and its reimbursable disbursements, costs and expenses
paid or incurred to such date.
B. Fund shall designate a successor (which may be Fund) by notice in
writing to State Street on or before the termination date.
C. State Street shall deliver to the successor, or if none has been
designated, to Fund, at State Street's office, all records, funds
and other properties of Fund deposited with or held by State
Street hereunder. In the event that neither a successor nor Fund
takes delivery of all records, funds and other properties of Fund
by the termination date, State Street's sole obligation with
respect thereto from the termination date until delivery to a
successor or Fund shall be to exercise reasonable care to hold
the same in custody in its form and condition as of the
termination date, and State Street shall be entitled to
reasonable compensation therefor, including but not limited to
all of its out-of-pocket costs and expenses incurred in
connection therewith.
11. NOTICES. Notices, requests, instructions and other writings, in the
form of letters, facsimiles, transmissions or electronic mail ("Writings")
received by Fund at 0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX, 00000-0000 ,
or at such address as Fund may have designated to State Street in writing, shall
be deemed to have been properly given to Fund hereunder; and notices, requests,
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instructions and other Writings received by State Street at its offices at 000
Xxxxxxxxxxxx, Xxxxxx Xxxx, XX 00000, or to such other address as it may have
designated to Fund in writing, shall be deemed to have been properly given to
State Street hereunder.
12. LIMITATION OF LIABILITY. Notice is hereby given that a copy of Fund's
trust agreement and all amendments thereto is on file with the Secretary of
State of the state of its organization; that this Agreement has been executed on
behalf of Fund by the undersigned duly authorized representative of Fund in
his/her capacity as such and not individually; and that the obligations of this
Agreement shall only be binding upon the assets and property of Fund and shall
not be binding upon any trustee, officer or shareholder of Fund individually.
13. MISCELLANEOUS.
A. This Agreement is executed and delivered in the Commonwealth of
Massachusetts and shall be governed by the laws of said state.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto
and their respective successors and permitted assigns.
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 the Agreement are included for convenience of
reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effort.
E. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
F. If any part, term or provision of this Agreement is determined 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.
G. This Agreement may not be assigned by either party without prior
written consent in writing of the other party.
H. The representations and warranties, the indemnification extended
hereunder, and the provisions of Section 2.D. and 2.E. are
intended to and shall continue after and survive the expiration,
termination or cancellation of this Agreement.
I. This Agreement does not in any way affect any other agreements
entered into between the parties hereto.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective and duly authorized corporate or trust officers.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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ING PILGRIM SENIOR INCOME FUND
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Senior Vice President
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