EXHIBIT (k)(3)
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 27th day of February, 2004 by and between ING
Clarion Global Real Estate Income Fund, a Delaware statutory trust having its
principal place of business at 000 Xxxxx Xxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter called the "Fund") and The Bank of New York, a
New York corporation authorized to do a banking business, having its principal
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
called the "Bank").
W I T N E S S E T H:
In consideration of the mutual agreements herein contained, the Fund
and the Bank hereby agree as follows:
1. The Fund hereby appoints the Bank to perform the duties
hereinafter set forth.
2. The Bank hereby accepts appointment and agrees to perform the
duties hereinafter set forth.
3. Subject to the provisions of paragraphs 4 and 5 below, the
Bank shall compute the net asset value per share of the Fund and shall value the
securities held by the Fund (the "Securities") at such times and dates and in
the manner specified in the then currently effective Registration Statement of
the Fund, as modified by any resolutions of the Board, except that
notwithstanding any provision in the Registration Statement in no event (a)
shall the Bank be required to consider whether any price or value represents
"fair value", (b) nor shall the Bank be required to adjust any price or value to
reflect any events or announcements with respect to any issuer, it being agreed
that all such determinations are to be made by the Fund.
4. To the extent valuation of Securities or computation of the
Fund's net
asset value as specified in the Fund's then currently effective Registration
Statement, as modified by any resolutions of the Board, is at any time
inconsistent with any applicable laws or regulations, the Fund shall immediately
so notify the Bank in writing and thereafter shall either furnish the Bank at
all appropriate times with the values of such Securities and the Fund's net
asset value, or subject to the prior approval of the Bank, instruct the Bank in
writing to value Securities and compute the Fund's net asset value in a manner
which the Fund then represents in writing to be consistent with all applicable
laws and regulations. The Fund may also from time to time, subject to the prior
approval of the Bank, instruct the Bank in writing to compute the value of the
Securities or the Fund's net asset value in a manner other than as specified in
paragraph 3 of this Agreement. By giving such instruction, the Fund shall be
deemed to have represented that such instruction is consistent with all
applicable laws and regulations. The Fund shall have sole responsibility for
determining the method of valuation of Securities and the method of computing
the Fund's net asset value.
5. The Fund shall furnish the Bank with any and all instructions,
explanations, information, specifications and documentation deemed necessary by
the Bank in the performance of its duties hereunder, including, without
limitation, the amounts or written formula for calculating the amounts and times
of accrual of Fund liabilities and expenses. The Bank shall not be required to
include as Fund liabilities and expenses, nor as a reduction of net asset value,
any accrual for any federal, state, or foreign income taxes unless the Fund
shall have specified to the Bank the precise amount of the same to be included
in liabilities and expenses or used to reduce net asset value. The Fund shall
also furnish the Bank with bid, offer, or market values of Securities if the
Bank notifies the Fund that same are not available to the Bank from a security
pricing or similar service utilized, or subscribed to, by the Bank which the
Bank in its judgment deems reliable at the time such information is required for
calculations hereunder. At any time and from time to time, the Fund also may
furnish the Bank with bid, offer, or market values of Securities and instruct
the Bank to use such information in its calculations hereunder.
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6. The Bank shall advise the Fund, the Fund's custodian and the
Fund's transfer agent of the net asset value of the Fund upon completion of the
computations required to be made by the Bank pursuant to this Agreement.
7. The Bank shall, as agent for the Fund, maintain and keep
current the books, accounts and other documents, if any, listed in Appendix A
hereto and made a part hereof, as such Appendix A may be amended from time to
time, and preserve any such books, accounts and other documents in accordance
with the applicable provisions of Rule 31a-2 of the General Rules and
Regulations under the Investment Company Act of 1940, as amended (the "Rules").
Such books, accounts and other documents shall be made available upon reasonable
request for inspection by officers, employees and auditors of the Fund during
the Bank's normal business hours.
8. All records maintained and preserved by the Bank pursuant to
this Agreement which the Fund is required to maintain and preserve in accordance
with the above-mentioned Rules shall be and remain the property of the Fund and
shall be surrendered to the Fund promptly upon request in the form in which such
records have been maintained and preserved. Upon reasonable request of the Fund,
the Bank shall provide in hard copy or on micro-film, whichever the Bank shall
elect, any records included in any such delivery which are maintained by the
Bank on a computer disc, or are similarly maintained, and the Fund shall
reimburse the Bank for its expenses of providing such hard copy or micro-film.
9. The Bank, in performing the services required of it under the
terms of this Agreement, shall be entitled to rely fully on the accuracy and
validity of any and all instructions, explanations, information, specifications
and documentation furnished to it in writing by the Fund and reasonably believed
to be genuine and shall have no duty or obligation to review the accuracy,
validity or propriety of such instructions, explanations, information,
specifications or documentation, including, without limitation, evaluations of
Securities; the amounts or formula for calculating the amounts and times of
accrual of the Fund's liabilities and expenses; the amounts receivable and the
amounts payable on
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the sale or purchase of Securities. In the event the Bank's computations
hereunder rely, in whole or in part, upon information, including, without
limitation, bid, offer or market values of Securities or other assets, or
accruals of interest or earnings thereon, from a pricing or similar service
utilized, or subscribed to, by the Bank which the Bank in its judgment deems
reliable, the Bank shall not be responsible for, under any duty to inquire into,
or deemed to make any assurances with respect to, the accuracy or completeness
of such information.
10. The Bank shall not be required to inquire into any valuation
of Securities or other assets by the Fund or any third party described in
preceding paragraph 9 hereof, even though the Bank in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
11. The Bank, in performing the services required of it under the
terms of this Agreement, shall not be responsible for determining whether any
interest accruable to the Fund is or will be actually paid, but will accrue such
interest until otherwise instructed by the Fund.
12. The Bank shall not be responsible for delays or errors which
occur by reason of circumstances beyond its control in the performance of its
duties under this Agreement, including, without limitation, labor difficulties
without the Bank, mechanical breakdowns, flood or catastrophe, acts of God,
failures of transportation, communication or power supply, or other similar
circumstances. Nor shall the Bank be responsible for delays or failures to
supply the information or services specified in this Agreement where such delays
or failures are caused by the failure of any person(s) other than the Bank to
supply any instructions, explanations, information, specifications or
documentation deemed necessary by the Bank in the performance of its duties
under this Agreement.
13. No provision of this Agreement shall prevent the Bank from
offering services similar or identical to those covered by this Agreement to any
other corporations, associations or entities of any kind. Any and all
operational procedures, techniques and
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devices developed by the Bank in connection with the performance of its duties
and obligations under this Agreement, including those developed in conjunction
with the Fund, shall be and remain the property of the Bank, and the Bank shall
be free to employ such procedures, techniques and devices in connection with the
performance of any other contract with any other person whether or not such
contract is similar or identical to this Agreement.
14. The Bank may, with respect to questions of law, apply to and
obtain the advice and opinion of counsel to the Fund or its own counsel and
shall be entitled to rely on the opinion of such counsel, provided that the Bank
shall where circumstances reasonably permit notify the Fund in writing prior to
obtaining such opinion of counsel.
15. In no event shall the Bank be required to accept or act upon
any oral instructions; regardless of the circumstances.
16. The Bank shall send to the Fund reports on its system of
internal accounting controls as the Fund may reasonably request from time to
time.
17. Notwithstanding any other provision contained in this
Agreement, the Bank shall have no duty or obligation with respect to, including,
without limitation, any duty or obligation to determine, or advise or notify the
Fund of: (a) the taxable nature of any distribution or amount received or deemed
received by, or payable to, the Fund; (b) the taxable nature or effect on the
Fund or its shareholders of any corporate actions, class actions, tax reclaims,
tax refunds, or similar events; (c) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by the Fund to its
shareholders; or (d) the effect under any federal, state, or foreign income tax
laws of the Fund making or not making any distribution or dividend payment, or
any election with respect thereto.
18. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including
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its actions or omissions, the incompleteness or inaccuracy of any specifications
or other information furnished by the Fund, or for delays caused by
circumstances beyond the Bank's control, unless such loss, damage or expense
arises out of the negligence or willful misconduct of the Bank. In no event
shall the Bank be liable to the Fund or any third party for special, indirect,
or consequential damages, or for lost profits or loss of business, arising under
or in connection with this Agreement, even if previously informed of the
possibility of such damages and regardless of the form of action.
19. Without limiting the generality of the foregoing, the Fund
shall indemnify the Bank against and save the Bank harmless from any loss,
damage or expense, including reasonable counsel fees and other costs and
expenses of a defense against any claim or liability, arising from any one or
more of the following:
(a) Errors in records or instructions, explanations,
information, specifications or documentation of any kind, as the case may be,
supplied to the Bank in writing by any third party described in preceding
paragraph 9 hereof or by or on behalf of the Fund;
(b) Action or inaction taken or omitted to be taken by
the Bank pursuant to written instructions of the Fund or otherwise without
negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the Bank
in good faith in accordance with an opinion of counsel for the Fund or its own
counsel;
(d) Any improper use by the Fund or its agents, or
investment advisor of any valuations or computations supplied by the Bank
pursuant to this Agreement;
(e) The method of valuation of the Securities and the
method of computing the Fund's net asset value required by the Fund; or
(f) Any valuations of Securities or net asset value
provided by the Fund.
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20. In consideration for all of the services to be performed by
the Bank as set forth herein the Bank shall be entitled to receive reimbursement
for all out-of-pocket expenses and such compensation as may be agreed upon in
writing from time to time between the Bank and the Fund.
21. Attached hereto as Appendix B is a list of persons duly
authorized by the Fund's Declaration of Trust and By-Laws to execute this
Agreement and give any written instructions, or written specifications, by or on
behalf of the Fund. From time to time the Fund may deliver a new Appendix B to
add or delete any person and the Bank shall be entitled to rely on the last
Appendix B actually received by the Bank.
22. The Fund represents and warrants to the Bank that it has all
requisite power to execute and deliver this Agreement, to give any written
instructions contemplated hereby, and to perform the actions or obligations
contemplated to be performed by it hereunder, and has taken all necessary action
to authorize such execution, delivery, and performance.
23. This Agreement shall not be assignable by the Fund without the
prior written consent of the Bank, or by the Bank without the prior written
consent of the Fund.
24. Either of the parties hereto may terminate this Agreement by
giving the other party a notice in writing specifying the date of such
termination, which shall not be less than thirty (30) days after the date of
giving of such notice. Upon the date set forth in such notice, the Bank shall
deliver to the Fund all records then the property of the Fund and, upon such
delivery, the Bank shall be relieved of all duties and responsibilities under
this Agreement.
25. This Agreement may not be amended or modified in any manner
except by written agreement executed on behalf of both parties hereto.
26. This Agreement is executed in the State of New York and all
laws and rules of construction of the State of New York (other than those
relating to choice of laws) shall govern the rights, duties and obligations of
the parties hereto. The Fund and
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the Bank hereby consent to the exclusive jurisdiction of a state or federal
courts situated in New York City, New York in connection with any dispute
arising hereunder. The Fund hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such preceding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient
form. The Fund and the Bank each hereby irrevocably waives any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Agreement.
27. The performance and provisions of this Agreement are intended
to benefit only the Bank and the Fund, and no rights shall be granted to any
other person by virtue of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
ING CLARION GLOBAL REAL ESTATE
INCOME FUND
By: __________________________________
Name: X. Xxxxxx Xxxxxxxx
Title: President
Attest:
__________________________________
Name: Xxxxxxx Xxxxxx
Title: Secretary
THE BANK OF NEW YORK
By: __________________________________
Name:
Title:
Attest:
__________________________________
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APPENDIX A TO FUND ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
ING CLARION GLOBAL REAL ESTATE INCOME FUND
I. The Bank of New York (the "Bank"), as agent for ING Clarion
Global Real Estate Income Fund (the "Fund"), shall maintain the following
records on a daily basis for the Fund.
1. Report of priced portfolio assets
2. Statement of net asset value per share
II. The Bank shall maintain the following records on a monthly
basis for each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. The Bank shall prepare a Holdings Ledger on a quarterly basis,
and a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for the Fund.
Schedule D shall be produced on an annual basis for the Fund.
The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, The
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, the Bank uses the Account
Journals produced by The Bank of New York Custody System to record daily
settlements of the following for the Fund:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
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APPENDIX B
I, X. Xxxxxx Xxxxxxxx, of ING Clarion Global Real Estate Income Fund, a
Delaware statutory trust (the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the
Fund, and each has been duly elected or appointed by the Board of Trustees of
the Fund to each such position and qualified therefor in conformity with the
Fund's Declaration of Trust and By-Laws, and the signatures set forth opposite
their respective names are their true and correct signatures. Each such person
is authorized to give written or oral instructions or written or oral
specifications by or on behalf of the Fund to the Bank.
Name Position Signature
President and
X. Xxxxxx Xxxxxxxx Chief Executive Officer _______________________
Xxxxxxx Xxxxxx Secretary _______________________
Treasurer and
Xxxxx Xxxxxxx Chief Financial Officer _______________________
