EXHIBIT 99-B.8.82
TRUST NETWORKING AGREEMENT
AGREEMENT entered into as of November 7, 2002, by and between Pioneer Investment
Management Shareholder Services, Inc. ("PIMSS"), Member of the UniCredito
Italiano Banking Group, Register of Banking Groups, and ING Financial Advisers,
LLC ("Trust Entity") with its principal place of business in Hartford,
Connecticut.
As used in this Agreement, the following terms shall have the following
meanings, unless a different meaning is clearly required by the context:
Funds shall mean the open-end investment companies for which PIMSS serves as
investment adviser, administrator, principal underwriter, distributor and/or
transfer agent.
Client-Shareholders shall mean those clients of the Trust Entity who maintain an
interest in an account with the Funds registered in the name of the Trust Entity
and who receive administrative services from the Trust Entity.
Trust Entity shall mean (i) a Trust Company, (ii) a Trust Department of a
Commercial Bank, or (iii) an entity performing services for a trust who acts in
a fiduciary capacity on behalf of the Client-Shareholders.
PIMSS is the transfer agent for the Funds.
WHEREAS, the Trust Entity, possessing the authority to act on behalf of its
Client-Shareholders of the Funds;
WHEREAS, the Trust Entity and either PIMSS, the Funds or the Funds' principal
underwriter or other agent ("Underwriter") are members of the National
Securities Clearing Corporation ("NSCC") or otherwise have access to the NSCC's
Networking system ("Networking") through a registered clearing agency;
WHEREAS, Networking permits the transmission of Client-Shareholder data between
the Trust Entity and PIMSS pursuant to Trust Matrix Level Zero processing
established by the NSCC;
WHEREAS, PIMSS and the Trust Entity desire to participant in Networking with
each other pursuant to Trust Matrix Level Zero processing ("Trust Level
Processing");
WHEREAS, this Agreement shall inure to the benefit of and shall be binding upon
the undersigned and each such entity shall be either a transfer agent or Trust
Entity for purposes of this Agreement (PIMSS and the Trust Entity shall be
collectively referred to herein as the "Parties" and individually as a "Party");
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which
consideration is full and complete, PIMSS and the Trust Entity hereby agree as
follows:
I. OBLIGATIONS OF PIMSS
1. TRANSACTIONS SUBJECT TO NETWORKING. For each Client-Shareholder account
opened or maintained pursuant to Networking ("Networking Accounts"), PIMSS shall
accept, and effect changes in its records upon receipt, instructions,
communications and actions from the Trust Entity electronically through
Networking without supporting documentation from the Client-Shareholder. PIMSS
shall be responsible for processing any such instructions, communications or
actions from the Trust Entity and for executing the Trust Entity's instructions
in a timely manner according to the NSCC rules and procedures for Trust Level
Processing.
2. PERFORMANCE OF DUTIES. PIMSS shall perform any and all duties, functions,
procedures and responsibilities assigned to it pursuant to Trust Level
Processing and as otherwise established by the NSCC. PIMSS shall maintain
facilities, equipment and skilled personnel sufficient to perform the foregoing
activities and to otherwise comply with the terms of this Agreement. PIMSS shall
conduct each of the foregoing activities in a competent manner and in compliance
with (a) all applicable laws, rules and regulations, including NSCC rules and
procedures relating to Networking; (b) the then-current prospectuses and
statements of additional information of the Funds; and (c) any provision
relating to Networking in any agreement between the Trust Entity and the
Underwriter that would affect PIMSS's duties and obligations pursuant to the
Agreement.
3. ACCURACY OF INFORMATION, TRANSMISSIONS THROUGH, AND ACCESS TO NETWORKING.
Any information provided by PIMSS to the Trust Entity through Networking and
pursuant to this Agreement shall be accurate, complete, and in the format
prescribed by the NSCC. PIMSS shall adopt, implement and maintain procedures
reasonably designed to ensure the accuracy of all transmissions through
Networking and to limit the access to, and the inputting of data into,
Networking to persons specifically authorized by PIMSS.
4. TAX STATEMENTS. PIMSS shall provide to the Trust Entity in a timely manner
the information regarding the Funds to be included in Client-Shareholder tax
statements for the period during which Networking Account was maintained under
Trust Level Processing at any time during a taxable year.
5. NOTICE OF PROSPECTUS AND STATEMENT OF ADDITIONAL INFORMATION REVISIONS.
PIMSS shall provide the Trust Entity with reasonable notice of any material
revisions to the Funds' prospectuses and statements of additional information as
are necessary to enable the Trust Entity to fulfill its obligations under this
Agreement.
II. OBLIGATIONS OF THE TRUST ENTITY
1. PERFORMANCE OF DUTIES. The Trust Entity shall perform any and all duties,
functions, procedures and responsibilities assigned to it under this agreement
and as otherwise established by the NSCC. The Trust Entity shall maintain
facilities, equipment and skilled personnel sufficient to perform the foregoing
activities and to otherwise comply with the terms of this Agreement. The Trust
Entity shall conduct each of the foregoing activities in a competent manner and
in compliance with (a) all applicable laws, rules and regulations, including
NSCC rules and procedures relating to Networking -- Trust Level Processing, and
(b) the then current
prospectuses and statements of additional information of the Funds.
2. ACCURACY OF INFORMATION, TRANSMISSIONS THROUGH, AND ACCESS TO NETWORKING.
Any information provided by the Trust Entity to PIMSS through Networking and
pursuant to this Agreement shall be accurate, complete and, in the format
prescribed by the NSCC. All instructions, communications and actions by the
Trust Entity regarding each Networking Account shall be true and correct and
will have been duly authorized by the Client-Shareholder. The Trust Entity shall
adopt, implement and maintain procedures reasonably designed to ensure the
accuracy of all transmissions through Networking and to limit the access to, and
the inputting of data into, Networking to persons specifically authorized by the
Trust Entity.
3. INFORMATION RELATING TO NETWORKING ACCOUNTS. For each Networking Account,
the Trust Entity shall provide the Funds and PIMSS with all information
necessary or appropriate to establish and maintain each Networking Account (and
any subsequent changes to such information) which the Trust Entity hereby
certifies, to the best of the knowledge of the Trust Entity is and shall remain
true and correct. The Trust Entity shall comply in all respects with any and all
applicable obligations relating to withholding pursuant to the Internal Revenue
Code of 1986, as amended ("Code"), and shall promptly advise the Funds or PIMSS
of any matter that may affect the responsibilities of the Funds or PIMSS to
Client-Shareholders pursuant to the Code. The Trust Entity shall maintain
documents required by the Funds or by applicable law, rules and regulations to
verify the relevant information regarding each Networking Account.
4. SHAREHOLDER INSTRUCTIONS REGARDING NETWORKING ACCOUNTS. Unless otherwise
prohibited by law, upon receipt of appropriate instructions from a
Client-Shareholder, the Trust Entity shall promptly execute the
Client-Shareholder's instructions to terminate the maintenance of the
Client-Shareholder's account through Trust Level Networking.
5. SHAREHOLDER REPORTS AND OTHER DOCUMENTS; SOLICITATION OF PROXIES. The Trust
Entity shall timely deliver to each Client-Shareholder all reports and other
documents provided to it by the Funds or PIMSS as is required by applicable law
and the Trust Entity Agreement with the Client-Shareholder, provided that the
Trust Entity has timely received sufficient copies of such reports and/or
documents. Subject to receipt by PIMSS of such supporting documentation as it
may reasonably request, PIMSS shall reimburse the Trust Entity for all
reasonable out-of-pocket expenses incurred by the Trust Entity in mailing all
such reports and/or documents. PIMSS and the Trust Entity shall cooperate with
each other in the solicitation and voting of proxies on behalf of the Funds
according to the Trust Entity's fiduciary responsibility [as written in the
trust agreement] or as required by state law or federal regulation.
6. STATEMENT GENERATION. Any information provided by PIMSS to the Trust Entity
electronically through Networking and pursuant to this Agreement, shall satisfy
the delivery obligations as outlined by SEC Rule 10b-10 and, as such, PIMSS has
the informed consent of the Trust Entity to suppress the delivery of this
information using paper-media. In the event the Client-Shareholder has requested
an interested party statement, paper-media may be required for the interested
party.
7. TAX STATEMENTS. All information that is received by the Trust Entity from
the Funds or
PIMSS for inclusion in Client-Shareholder tax statements relating to the period
during which a Networking Account was maintained under Trust Level Processing in
a taxable year shall be reported to the Client-Shareholder accurately,
completely and in a timely manner according to the Trust Entity's fiduciary
responsibility [as written in the trust agreement] or as required by state law
or federal regulation.
8. CASH DIVIDENDS. For each Networking Account maintained under Trust Level
Processing in which cash dividends are received by the Trust Entity from the
Funds or PIMSS for payment to Client-Shareholders, the Trust Entity shall be
solely responsible for ensuring that all cash dividends received by the Trust
Entity are paid to Client-Shareholders in a timely manner.
III. INDEMNIFICATION
1. PIMSS. PIMSS shall indemnify and hold harmless the Trust Entity, and each
of the Trust Entity's divisions, subsidiaries, affiliates, directors, officers,
agents, employees and assigns of each of the foregoing (collectively,
"Indemnified Trust Entity Parties"), against and from any and all demands,
damages, liabilities, and losses, or any pending or completed actions, claims,
suits, complaints, or proceedings (including reasonable attorneys fees and other
costs, including all expenses of litigation or arbitration, judgments, fines or
amounts paid in any settlement consented to by PIMSS) to which any of them may
be or become subject to as a result or arising out of (a) any negligent act or
omission by PIMSS or its Agents relating to Networking provided that the Trust
Entity has not acted negligently; (b) any breach of PIMSS' representations or
warranties contained in this Agreement; (c) PIMSS' failure to comply with any of
the terms of this Agreement; or (d) the Trust Entity's acceptance of any
transaction or account maintenance information from PIMSS through Networking.
2. TRUST ENTITY. The Trust entity shall indemnify and hold harmless PIMSS, the
Funds, the Funds' custodian, the Funds' underwriter, the Funds' distributor, the
Funds' investment adviser, each of their affiliated companies, and all of the
divisions, subsidiaries, directors, trustees, officers, agents, employees and
assigns of each of the foregoing (collectively, "Indemnified Fund Parties"),
against and from any and all demands, damages, liabilities, and losses, or any
pending or completed actions, claims, suits, complaints, or proceedings
(including reasonable attorneys fees and other costs, including all expenses of
litigation or arbitration, judgments, fines or amounts paid in any settlement
consented to by the Trust Entity) to which any of them may be or become subject
to as a result or arising out of (a) any negligent act or omission by the Trust
Entity, the Trust's correspondents, or their agents relating to Networking;
provided PIMSS has not acted negligently; (b) any breach of the Trust's
representations or warranties in this Agreement; (c) the failure of the Trust
Entity or the Trust's correspondents to comply with any of the terms of this
Agreement; or (d) PIMSS' acceptance of any transaction or account maintenance
information from the Trust Entity through Networking.
3. NOTICE AND OPPORTUNITY TO DEFEND. If any action, suit, proceeding, or
investigation is initiated, or any claim or demand is made, against any Party
indemnified hereto with respect to which such Party ("Indemnified Party") may
make a claim against any other Party hereto ("Indemnifying Party") pursuant to
this Section III, then the Indemnified Party shall give prompt written notice of
such action, suit, proceeding, investigation, claim or demand to the
Indemnifying Party. Thereafter, the Indemnifying Party shall have the
opportunity, at its own expense and with its own counsel, to defend or settle
such action, suit, proceeding, claim or demand; provided, however, that: (a) the
Indemnifying Party shall keep the Indemnified Party informed of all material
developments and events relating to such action, suit, proceeding, claim or
demand; (b) the Indemnified Party shall have the right to participate, at its
own expense in the defense of such action, suit, proceeding, claim or demand and
shall cooperate as reasonably requested by the Indemnifying Party in the defense
thereof; and (c) the Indemnifying Party shall not settle such action, suit,
proceeding, claim or demand without the prior written consent of the Indemnified
Party, which consent shall not be unreasonably withheld.
IV. MISCELLANEOUS
1. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become effective on the
date first above written.
2. NSCC PROVISIONS. NSCC rules and procedures relating to Networking shall
govern any matter in which any provision contained in this Agreement conflicts
with any such NSCC rule or procedure; provided however, this Paragraph 2 shall
not prohibit modifications to the NSCC's Trust Level Processing that are agreed
to in writing by the Parties.
3. CONVERSION TO NETWORKING. If the Trust Entity, as part of its conversion to
Networking, requires that outstanding certificates be deposited with any of the
Funds or that street name house accounts be divided into individual accounts,
the Trust Entity shall submit to PIMSS a "Conversion Plan" and shall obtain
prior written consent from PIMSS for the Conversion Plan. The Conversion Plan
shall detail volumes for certificates or individual accounts, procedures for
processing, documentary requirements, procedures and reasonable time frames for
resolving discrepancies, and such other matters, including the classes of
Client-Shareholder accounts eligible for Networking, and ongoing procedures for
the entry and removal of individual accounts to and from Networking. PIMSS will
assist the Trust Entity in formulating the Conversion Plan.
4. RECONCILING TO FUND RECORDS. The official records of each Networking
Account shall be as determined by PIMSS. The Trust Entity and PIMSS shall
reconcile any differences between the Trust Entity's records and PIMSS's
records. The Trust Entity and PIMSS shall each designate liaison personnel to
communicate, control and execute any required corrections or reconciliations
with respect to any Networking Account. In the event of any discrepancy between
the records of the Trust Entity and PIMSS regarding a Networking Account, the
records of PIMSS shall control pending resolution of the discrepancy.
5. FUND SHARES HELD ON BEHALF OF TRUST ENTITY CLIENTS. All Fund Shares held by
the Trust Entity on behalf of a Client-Shareholder of the Trust Entity shall be
carried in a custody account for the exclusive benefit of Client-Shareholders of
the Trust Entity and shall not be subject to any right, charge, security
interest, lien or other claim against the Trust Entity in favor of the Funds or
PIMSS.
6. OVERPAYMENTS TO THE TRUST ENTITY. In the event any overpayment is made to
the Trust Entity by PIMSS, the Trust Entity shall promptly repay such
overpayment to PIMSS, but in no event more than fifteen (15) days after the
Trust Entity's receives notice of such overpayment. If any overpayment is not
timely repaid to PIMSS, the Trust Entity authorizes PIMSS, the Funds, or any of
their affiliates, to offset any such overpayment against any funds otherwise
payable to the Trust Entity for the Trust Entity's own account by PIMSS, the
Funds or their affiliates, including, without limitation, service fees;
provided, however, that an overpayment to the Trust Entity shall not be subject
to such offset if the overpayment was the result of an error or other negligent
act or omission on the part of the Funds or PIMSS; and provided further, that
the Trust Entity shall not be required to repay, out of its own funds, an
overpayment forwarded to a Client-Shareholder that is a client of the Trust
Entity, and the Trust Entity shall instead provide PIMSS with the name and
address of such client, if (a) the overpayment to the Trust Entity is not the
result of an error or other negligent act or omission on the part of the Trust
Entity, and (b) such client is no longer a Shareholder of any Fund.
7. FORCE MAJEURE/EQUIPMENT FAILURE. Neither party will be liable or
responsible for any losses resulting from delays or errors by reason of
circumstances beyond its reasonable control, including, but not limited to, acts
of civil or military authority, national emergencies, labor difficulties, fire,
mechanical breakdown, flood or catastrophe, acts of God, insurrection, war,
riots or failure of communications systems or power supply. In the event of
equipment breakdowns beyond its control, each party will take reasonable steps
to minimize service interruptions, but will have no liability with respect
thereto.
8. TERMINATION. Either PIMSS or the Trust Entity may terminate this Agreement
with the other Party by written notice to that Party. Commencing from the date
of receipt of such notice ("Notification Date"), PIMSS and the Trust Entity
shall proceed with the termination of this Agreement in accordance with the
following schedule unless otherwise agreed to by the Parties: (a) the opening of
new Networking Accounts shall cease within thirty (30) days of the Notification
Date; (b) a plan which sets forth the procedures that must be followed to effect
the termination of this Agreement ("Unwinding Plan") must be agreed upon by the
Parties within sixty (60) days of the Notification Date; (c) the Unwinding Plan
must be fully implemented within ninety (90) days of the notification Date; and
(d) the Unwinding Plan must be fully completed within one hundred eighty (180)
days of the Notification Date. The obligations of the Parties under Section III
of this Agreement shall survive any termination hereof with respect to any
transactions occurring, or circumstances arising out of any information provided
or omitted, or other actions or omissions to act, before the effective date of
any termination hereof.
9. CONFLICTING AGREEMENTS. Except with respect to the provisions of this
Agreement contained in Paragraphs 3 and 12, of this Section IV, any provision of
any agreement or other understanding between PIMSS and the Trust Entity relating
to Networking that is inconsistent with this Agreement shall be null and void.
Nothing contained in this Agreement, however, shall be construed to limit or
restrict either Party's compliance with any law, regulation or order to which
the Party is subject or to prevent the Parties from supplementing this Agreement
by agreeing to additional duties, obligations, representations, warranties
and/or higher standards of care with respect thereto.
10. ASSIGNMENT. Neither PIMSS nor the Trust Entity may assign this Agreement
without the prior written consent of the other Party, and any attempted
assignment without such consent shall be null and void; provided, however, a
change in control of either Party shall not constitute an assignment of this
Agreement.
11. HEADINGS; ENTIRE AGREEMENT. The paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. This Agreement, including any
document explicitly incorporated herein by reference and any written
supplemental agreement between PIMSS and the Trust Entity, shall contain. the
full understanding of the Parties with respect to the subject matter hereof and
shall supersede any other previous agreement or understanding of the Parties
relating thereto. No waiver, alteration or modification of any of the provisions
hereof shall be binding unless in writing and signed by duly authorized
representatives of PIMSS and the Trust Entity. Neither the course of conduct
between the Parties nor trade usage shall act to modify or alter the provisions
of this Agreement.
12. LAW. This Agreement shall be governed by and its provisions shall be
construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to conflicts of laws principles. Boston, Massachusetts shall be
the proper venue for resolution of any and all disputes arising hereunder.
13. ARBITRATION. In the event of a dispute between PIMSS and the Trust Entity
with respect to the Agreement, and in the event the parties are unable to
resolve the dispute between them, such dispute shall proceed to arbitration.
Arbitration shall be conducted in accordance with the Uniform Code of
Arbitration as developed by the Securities Industry Conference on Arbitration
and the Rules of the National Association of Securities Dealers, Inc.
14. SEVERABILITY. If any provision of this Agreement is held to be invalid, the
remaining provisions of the Agreement shall continue to be valid and
enforceable.
15. NOTICE. Any notice or amendment required or permitted hereunder shall be in
writing and shall be given by personal service, mail, or facsimile to the other
Party at the address set forth below (or such other address as a Fund Party or
the Trust Entity may specify by written notice to the other). Notice shall be
effective upon receipt if by mail, on the date of personal delivery (by private
messenger, courier service or otherwise), or upon receipt of facsimile,
whichever occurs first at:
Trust Entity: ING Financial Advisers, LLC 000 Xxxxxxxxxx Xxxxxx Xxxxxxxx,
XX 00000
Attn: Xxxxx X. Xxxxxxxx, Counsel Fax (000)000-0000
PIMSS: Pioneer Investment Management Shareholder Services, Inc.
Xxx Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx, Vice President
Fax (000) 000-0000
16. WAIVER. The failure of a Party to insist upon strict adherence to any
provision of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such Party of the right thereafter to insist upon strict
adherence to that provision or any other provision of this Agreement. Any waiver
must be in writing signed by the waiving Party.
17. PROPRIETARY INFORMATION. Each party hereto acknowledges that the identities
of the other party's customers, information maintained by such other party
regarding those customers and all computer programs and procedures developed by
such other party or such other party's affiliates or agents in connection with
such other party's performance of its duties hereunder constitute the valuable
property of such other party. Each party agrees that should it or its affiliates
or agents come into possession of any list or compilation of the identities of
or other information about the other party's customers, or any other property of
such party, pursuant to this Agreement or any other agreement related to
services under this Agreement, the party who acquired such information or
property, or whose affiliate or agent acquired such information or property,
shall use its best efforts to hold, or to cause its affiliate or agent to hold,
such information or property in confidence and refrain from using, disclosing,
or distributing any of such information or other property, except: (i) with the
other party's prior written consent or (ii) as required by law or judicial
process. Each party acknowledges that any breach of the foregoing agreements as
to another party would result in immediate and irreparable harm to such other
party for which there would be no adequate remedy at law and agrees that in the
event of such a breach such other party will be entitled to equitable relief by
way of temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as
of the date first above written.
ATTEST:
PIONEER INVESTMENT MANAGEMENT SHAREHOLDER SERVICES, INC.
/s/ Xxxxx Xxxxxxxx
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By: Xxxxx Xxxxxxxx
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Title: President and CEO
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ING FINANCIAL ADVISERS, LLC
/s/ Xxxxxxxxx Xxxxxx
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By: Xxxxxxxxx Xxxxxx
---------------------------------
Title: Vice President
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