EXHIBIT (g)(1)
CUSTODY AGREEMENT
AGREEMENT, dated as of January 6, 2003 between each entity listed in
Exhibit A hereto (each a "Fund"; and collectively, the "Funds") and The Bank of
New York, a New York corporation authorized to do a banking business having its
principal office and place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("Custodian").
WITNESSETH:
that for and in consideration of the mutual promises hereinafter set forth the
Fund and Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall have the
meanings set forth below:
1. "AUTHORIZED PERSON" shall be any person, whether or not an officer
or employee of the Fund, duly authorized by the Fund's board of
trustees/directors ("board") execute any Certificate or to give any Oral
Instruction with respect to one or more Accounts, such persons to be designated
in a Certificate annexed hereto as Schedule I or such other Certificate as may
be received by Custodian from time to time.
2. "BNY AFFILIATE" shall mean any office, branch or subsidiary of The
Bank of New York Company, Inc.
3. "BOOK-ENTRY SYSTEM" shall mean the Federal Reserve/Treasury
book-entry system for receiving and delivering securities, its successors and
nominees.
4. "BUSINESS DAY" shall mean any day on which the Fund, the Custodian
and relevant Depositories are open for business.
5. "CERTIFICATE" shall mean any notice, instruction, or other
instrument in writing, authorized or required by this Agreement to be given to
Custodian, which is actually received by Custodian by letter or facsimile
transmission and signed on behalf of the Fund by an Authorized Person.
6. "COMPOSITE CURRENCY UNIT" shall mean the Euro or any other composite
currency unit consisting of the aggregate of specified amounts of specified
currencies, as unit may be constituted from time to time.
7. "DEPOSITORY" shall include (a) the Book-Entry System, (b) the
Depository Trust Company, (c) any other clearing agency or securities depository
registered with the
Securities and Exchange Commission identified to the Fund from time to time, and
(d) the respective successors and nominees of the foregoing.
8. "FOREIGN DEPOSITORY" shall mean (a) Euroclear, (b) Clearstream
Banking, societe anonyme, (c) each Eligible Securities Depository as defined in
Rule 17f-7 under the Investment Company Act of 1940, as amended, identified to
the Fund from time to time, and (d) the respective successors and nominees of
the foregoing.
9. "INSTRUCTIONS" shall mean communications transmitted by electronic
or telecommunications media, including S.W.I.F.T., computer-to-computer
interface, or dedicated transmission lines.
10. "ORAL INSTRUCTIONS" shall mean verbal instructions received by
Custodian from an Authorized Person or from a person reasonably believed by
Custodian to be an Authorized Person.
11. "SERIES" shall mean the various portfolios, if any, of the Fund
listed on Exhibit A hereto, and if none are listed references to Series shall be
references to the Fund.
12. "SECURITIES" shall have the same meaning as when used in Securities
Act of 1933, including without limitation, any common stock and other equity
securities, bonds, debentures and other debt securities, notes, mortgages or
other obligations, and any instruments representing rights to receive, purchase,
or subscribe for the same, or representing any other rights or interests therein
(whether represented by a certificate or held in a Depository).
13. "SUBCUSTODIAN" shall mean a bank (including any branch thereof) or
other financial institution (other than a Foreign Depository) located outside
the U.S. which is utilized by Custodian in connection with the purchase, sale or
custody of Securities hereunder and identified to the Fund from time to time,
and their respective successors and nominees.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) Each Fund hereby appoints Custodian as custodian of all
Securities and cash at any time delivered to Custodian during the term of this
Agreement, and authorizes Custodian to hold Securities in registered form in its
name or the name of its nominees. Custodian hereby accepts such appointment and
agrees to establish and maintain one or more securities accounts and cash
accounts for each Series in which Custodian will hold Securities and cash as
provided herein. Custodian shall maintain books and records
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segregating the assets of each Series from the assets of any other Series. Such
accounts (each, an "Account"; collectively, the "Accounts") shall be in the name
of the Fund.
(b) Custodian may from time to time establish on its books and
records such sub-accounts within each Account as the Fund and Custodian may
agree upon (each a "Special Account"), and Custodian shall reflect therein such
assets as the Fund may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish pursuant to a
written agreement with and for the benefit pf a broker, dealer, future
commission merchant or other third party identified in a Certificate or
Instructions such accounts on such terms and conditions as the Fund and
Custodian shall agree, and Custodian shall transfer to such account such
Securities and money as the Fund may specify in a Certificate or Instructions.
2. The Fund hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon each
delivery of a Certificate or each giving of Oral Instructions or Instructions by
the Fund, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement, and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund, approved by a resolution of its board, constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms, and to its knowledge there is no statute, regulation, rule, order or
judgment binding on it, and no provision of its charter or by-laws, nor of any
mortgage, indenture, credit agreement or other contract binding on it or
affecting its property, which would prohibit its execution or performance of
this Agreement;
(c) It is conducting its business in substantial compliance
with all applicable laws and requirements, both state and federal, and has
obtained all regulatory licenses, approvals and consents necessary to carry on
its business as now conducted;
(d) It will not knowingly use the services provided by
Custodian hereunder in any manner that is, or will result in, a violation of any
law, rule or regulation applicable to the Fund;
(e) Unless The Bank of New York is acting as the Foreign
Custody manager of the Fund, the Fund's board or its foreign custody manager, as
defined in Rule 17f-5 under the Investment Company Act of 1940, as amended (the
'"40 Act"), has determined that use of each Subcustodian (including any
Replacement Custodian) and each Depository which Custodian or any Subcustodian
is authorized to utilize in
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accordance with Section l(a) of Article III hereof, satisfies the applicable
requirements of the '40 Act and Rules 17f-4 or 17f-5 thereunder, as the case may
be;
(f) The Fund or its investment adviser has determined that the
custody arrangements of each Foreign Depository provide reasonable safeguards
against the custody risks associated with maintaining assets with such Foreign
Depository within the meaning of Rule 17f-7 under the '40 Act;
(g) It is fully informed of the protections and risks
associated with various methods of transmitting Instructions and Oral
Instructions and delivering Certificates to Custodian, understands that there
may be more secure methods of transmitting or delivering the same than the
methods selected by the Fund, agrees that the security procedures (if any) to be
utilized provide a commercially reasonable degree of protection in light of its
particular needs and circumstances, and acknowledges and agrees that
Instructions need not be reviewed by Custodian, may conclusively be presumed by
Custodian to have been given by person(s) duly authorized, and may be acted upon
as given;
(h) It shall manage its borrowings, including, without
limitation, any advance or overdraft (including any day-light overdraft) in the
Accounts, so that the aggregate of its total borrowings for each Series does not
exceed the amount such Series is permitted to borrow under the '40 Act;
(i) Its transmission or giving of, and Custodian acting upon
and in reliance on, Certificates, Instructions, or Oral Instructions pursuant to
this Agreement shall at all times comply with the '40 Act;
(j) It shall impose and maintain restrictions on the
destinations to which cash may be disbursed by Instructions to ensure that each
disbursement is for a proper purpose; and
(k) It has the right to make the pledge and grant the security
interest to Custodian contained in Section 1 of Article V hereof, free of any
right of redemption or prior claim of any other person or entity, such pledge
and such grants shall have a first priority subject to no setoffs,
counterclaims, or other liens or grants prior to or on a parity therewith, and
it shall take such additional steps as Custodian may require to assure such
priority.
3. The Custodian hereby represents and warrants, which representations
and warranties shall be continuing and shall be deemed to be reaffirmed upon
each receipt of a Certificate or of Oral Instructions or Instruction by the
Fund, that:
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(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement, and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund, approved by a resolution of its board, constitutes a
valid and legally binding obligation of Custodian, enforceable in accordance
with its terms, and there is no statute, regulation, rule, order or judgment
binding on it, and no provision of its charter or by laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property, which would prohibit its execution or performance of this Agreement;
(c) It is conducting its business in substantial compliance
with all applicable laws and requirements, both state and federal, and has
obtained all regulatory licenses, approvals and consents necessary to carry on
its business as now conducted;
(d) It will not knowingly use the Securities and cash
delivered to Custodian hereunder in any manner that is, or will result in, a
violation of any law, rule or regulation applicable to the Custodian; and
(e) It has at least the minimum qualifications required by
Section 17(f)(l) of the Investment Company Act of 1940, as amended (the "40
Act"), to act as custodian of the portfolio securities and cash of the Fund, and
has indicated its willingness to so act, subject to the terms and conditions of
this agreement.
4. The Fund hereby covenants that it shall from time to time complete
and execute and deliver to Custodian upon Custodian's request a Form FR U-l (or
successor form) whenever the Fund borrows from Custodian any money to be used
for the purchase or carrying of margin stock as defined in Federal Reserve
Regulation U.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Fund hereby authorizes
Custodian to hold any Securities received by it from time to time for the Fund's
account. Custodian shall be entitled to utilize Depositories, Subcustodians,
and, subject to subsection (c) of this Xxxxxxx 0, Xxxxxxx Xxxxxxxxxxxx, to the
extent possible in connection with its performance hereunder. Securities and
cash held in a Depository or Foreign Depository will be held subject to the
rules, terms and conditions of such entity. Securities and cash held through
Subcustodians shall be held subject to the terms and conditions of Custodian's
agreements with such Subcustodians. Subcustodians may be authorized to hold
Securities in Foreign Depositories in which such Subcustodians participate.
Unless otherwise required by local law or practice or a particular subcustodian
agreement, Securities deposited with a Subcustodian, a Depositary or a Foreign
Depository will be
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held in a commingled account, in the name of Custodian, holding only Securities
held by Custodian as custodian for its customers. Custodian shall identify on
its books and records the Securities and cash belonging to the Fund, whether
held directly or indirectly through Depositories, Foreign Depositories, or
Subcustodians. Custodian shall, directly or indirectly through Subcustodians,
Depositories, or Foreign Depositories, endeavor, to the extent feasible, to hold
Securities in the country or other jurisdiction in which the principal trading
market for such Securities is located, where such Securities are to be presented
for cancellation and/or payment and/or registration, or where such Securities
are acquired. Custodian at any time may cease utilizing any Subcustodian and/or
may replace a Subcustodian with a different Subcustodian (the "Replacement
Subcustodian"). In the event Custodian selects a Replacement Subcustodian,
Custodian shall not utilize such Replacement Subcustodian until after the Fund's
board or foreign custody manager has determined that utilization of such
Replacement Subcustodian satisfies the requirements of the '40 Act and Rule
17f-5 thereunder.
(b) Unless Custodian has received a Certificate or
Instructions to the contrary, Custodian shall hold Securities indirectly through
a Subcustodian only if (i) the Securities are not subject to any right, charge,
security interest, lien or claim of any kind in favor of such Subcustodian or
its creditors or operators, including a receiver or trustee in bankruptcy or
similar authority, except for a claim of payment for the safe custody or
administration of Securities on behalf of the Fund by such Subcustodian, and
(ii) beneficial ownership of the Securities is freely transferable without the
payment of money or value other than for safe custody or administration.
(c) With respect to each Foreign Depository, Custodian shall
exercise reasonable care, prudence, and diligence (i) to provide the Fund with
an analysis of the custody risks associated with maintaining assets with the
Foreign Depository, and (ii) to monitor such custody risks on a continuing basis
and promptly notify the Fund of any material change in such risks. The Fund
acknowledges and agrees that such analysis and monitoring shall be made on the
basis of, and limited by, information gathered from Subcustodians or through
publicly available information otherwise obtained by Custodian, and shall not
include any evaluation of Country Risks. As used herein the term "Country Risks"
shall mean with respect to any Foreign Depository: (a) the financial
infrastructure of the country in which it is organized, (b) such country's
prevailing custody and settlement practices, (c) nationalization, expropriation
or other governmental actions, (d) such country's regulation of the banking or
securities industry, (e) currency controls, restrictions, devaluations or
fluctuations, and (f) market conditions which affect the order execution of
securities transactions or affect the value of securities.
2. Custodian shall furnish the Fund on-line access to daily
transactions on a real time or near real time basis (including a confirmation of
each transfer of Securities) and a monthly summary of all transfers to or from
the Accounts.
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3. With respect to all Securities held hereunder, Custodian shall,
unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise the Fund
as promptly as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all
Securities which may mature and advise the Fund as promptly as practicable of
any such amounts due but not paid;
(c) Forward to the Fund copies of all information or documents
that it may actually receive from an issuer of Securities which, in the opinion
of Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of ownership,
affidavits, declarations or other certificates under any tax laws now or
hereafter in effect in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository, a Foreign
Depository, or a Subcustodian all rights and similar Securities issued with
respect to any Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable
instruments.
4. (a) Custodian shall notify the Fund of rights or discretionary
actions with respect to Securities held hereunder, and of the date or dates by
when such rights must be exercised or such action must be taken, provided that
Custodian has actually received, from the issuer or the relevant Depository
(with respect to Securities issued in the United States) or from the relevant
Subcustodian, Foreign Depository, or a nationally or internationally recognized
bond or corporate action service to which Custodian subscribes, timely notice of
such rights or discretionary corporate action or of the date or dates such
rights must be exercised or such action must be taken. Absent actual receipt of
actual notice, Custodian shall have no liability for failing to so notify the
Fund.
(b) Whenever Securities (including, but not limited to,
warrants, options, tenders, options to tender or non-mandatory puts or calls)
confer discretionary rights on the Fund or provide for discretionary action or
alternative courses of action by the Fund, the Fund shall be responsible for
making any decisions relating thereto and for directing Custodian to act. In
order for Custodian to act, it must receive the Fund's Certificate or
Instructions at Custodian's offices, addressed as Custodian may from time to
time request, not later than noon (New York time) at least one (1) Business Day
prior to the last scheduled date to act with respect to such Securities (or such
earlier date or time as Custodian may specify to the Fund). Absent Custodian's
timely receipt of such Certificate or Instructions, Custodian shall not be
liable for failure to take any action
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relating to or to exercise any rights conferred by such Securities, unless
Custodian has failed to timely receive the Fund's Certificate or Instruction and
such failure is attributable to Custodian's own negligence or willful
misconduct.
5. All voting rights with respect to Securities, however registered,
shall be exercised by the Fund or its designee. For Securities issued in the
United States, Custodian's only duty shall be to mail to the Fund any documents
(including proxy statements, annual reports and signed proxies) actually
received by Custodian relating to the exercise of such voting rights. With
respect to Securities issued outside of the United States, Custodian's only duty
shall be to provide the Fund with access to a provider of global proxy services
at the Fund's request. The Fund shall be responsible for all costs associated
with its use of such services.
6. Custodian shall promptly advise the Fund upon Custodian's actual
receipt of notification of the partial redemption, partial payment or other
action affecting less than all Securities of the relevant class. If Custodian,
any Subcustodian, any Depository, or any Foreign Depository holds any Securities
in which the Fund has an interest as part of a fungible mass, Custodian, such
Subcustodian, Depository, or Foreign Depository may select the Securities to
participate in such partial redemption, partial payment or other action in any
non-discriminatory manner that it customarily uses to make such selection.
7. Custodian shall not under any circumstances accept bearer interest
coupons which have been stripped from United States federal, state or local
government or agency securities unless explicitly agreed to by Custodian in
writing.
8. The Fund shall be liable for all taxes, assessments, duties and
other governmental charges, including any interest or penalty with respect
thereto ("Taxes"), with respect to any cash or Securities held on behalf of the
Fund or any transaction related thereto. The Fund shall indemnify Custodian and
each Subcustodian for the amount of any Tax that Custodian, any such
Subcustodian or any other withholding agent is required under applicable laws
(whether by assessment or otherwise) to pay on behalf of, or in respect of
income earned by or payments or distributions made to or for the account of the
Fund (including any payment of Tax required by reason of an earlier failure to
withhold). Custodian shall, or shall instruct the applicable Subcustodian or
other withholding agent to, withhold the amount of any Tax which is required to
be withheld under applicable law upon collection of any dividend, interest or
other distribution made with respect to any Security and any proceeds or income
from the sale, loan or other transfer of any Security. In the event that
Custodian or any Subcustodian is required under applicable law to pay any Tax on
behalf of the Fund, Custodian is hereby authorized to withdraw cash from any
cash account in the amount required to pay such Tax and to use such cash, or to
remit such cash to the appropriate Subcustodian or other withholding agent, for
the timely payment of such Tax in the manner required by applicable law. If the
aggregate amount of cash in all cash accounts is not sufficient to pay such Tax,
Custodian shall promptly
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notify the Fund of the additional amount of cash (in the appropriate currency)
required, and the Fund shall directly deposit such additional amount in the
appropriate cash account promptly after receipt of such notice, for use by
Custodian as specified herein. In the event that Custodian reasonably believes
that Fund is eligible, pursuant to applicable law or to the provisions of any
tax treaty, for a reduced rate of, or exemption from, any Tax which is otherwise
required to be withheld or paid on behalf of the Fund under any applicable law,
Custodian shall, or shall instruct the applicable Subcustodian or withholding
agent to, either withhold or pay such Tax at such reduced rate or refrain from
withholding or paying such Tax, as appropriate; provided that Custodian shall
have received from the Fund all documentary evidence of residence or other
qualification for such reduced rate or exemption required to be received under
such applicable law or treaty. In the event that Custodian reasonably believes
that a reduced rate of, or exemption from, any Tax is obtainable only by means
of an application for refund, Custodian and the applicable Subcustodian shall
have no responsibility for the accuracy or validity of any forms or
documentation provided by the Fund to Custodian hereunder. The Fund hereby
agrees to indemnify and hold harmless Custodian and each Subcustodian in respect
of any liability arising from any underwithholding or underpayment of any Tax
which results from the inaccuracy or invalidity of any such forms or other
documentation, and such obligation to indemnify shall be a continuing obligation
of the Fund, its successors and assigns notwithstanding the termination of this
Agreement.
9. (a) For the purpose of settling Securities and foreign exchange
transactions, the Fund shall provide Custodian with sufficient immediately
available funds for all transactions by such time and date as conditions in the
relevant market dictate. As used herein, "sufficient immediately available
funds" shall mean either (i) sufficient cash denominated in U.S. dollars to
purchase the necessary foreign currency, or (ii) sufficient applicable foreign
currency, to settle the transaction. Custodian shall provide the Fund with
immediately available funds each day which result from the actual settlement of
all sale transactions, based upon advice received by Custodian from
Subcustodians, Depositories, and Foreign Depositories. Such funds shall be in
U.S. dollars or such other currency as the Fund may specify to Custodian.
(b) Any foreign exchange transaction effected by Custodian in
connection with this Agreement may be entered with Custodian or a BNY Affiliate
acting as principal or otherwise through customary banking channels. The Fund
may issue a standing Certificate or Instructions with respect to foreign
exchange transactions, but Custodian may establish rules or limitations
concerning any foreign exchange facility made available to the Fund. The Fund
shall bear all risks of investing in Securities or holding cash denominated in a
foreign currency.
10. Custodian shall promptly send to the Fund (a) any reports it
receives from a Depository on such Depository's system of internal accounting
control, and (b) such
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reports on its own system of internal accounting control as the Fund may
reasonably request from time to time.
11. Until such time as Custodian receives a certificate to the contrary
with respect to a particular Security, Custodian may release the identity of the
Fund to an issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct communications
between such issuer and shareholder.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the Fund, the
Fund shall deliver to Custodian a Certificate or Instructions, or with respect
to a purchase or sale of a Security generally required to be settled on the same
day the purchase or sale is made, Oral Instructions specifying all information
Custodian may reasonably request to settle such purchase or sale. Custodian
shall account for all purchases and sales of Securities on the actual settlement
date unless otherwise agreed by Custodian.
2. The Fund understands that when Custodian is instructed to deliver
Securities against payment, delivery of such Securities and receipt of payment
therefor may not be completed simultaneously. Notwithstanding any provision in
this Agreement to the contrary, settlements, payments and deliveries of
Securities may be effected by Custodian or any Subcustodian in accordance with
the customary or established securities trading or securities processing
practices and procedures in the jurisdiction in which the transaction occurs,
including, without limitation, delivery to a purchaser or dealer therefor (or
agent) against receipt with the expectation of receiving later payment for such
Securities. The Fund assumes full responsibility for all risks, including,
without limitation, credit risks, involved in connection with such deliveries of
Securities.
3. Custodian may, as a matter of bookkeeping convenience or by separate
agreement with the Fund, credit the Account with the proceeds from the sale,
redemption or other disposition of Securities or interest, dividends or other
distributions payable on Securities prior to its actual receipt of final payment
therefor. All such credits shall be conditional until Custodian's actual receipt
of final payment and may be reversed by Custodian to the extent that final
payment is not received. Payment with respect to a transaction will not be
"final" until Custodian shall have received immediately available funds which
under applicable local law, rule and/or practice are irreversible and not
subject to any security interest, levy or other encumbrance, and which are
specifically applicable to such transaction.
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ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds on behalf
of any Series which results in an overdraft (including, without limitation, any
day-light overdraft) because the money held by Custodian in an Account for such
Series shall be insufficient to pay the total amount payable upon a purchase of
Securities specifically allocated to such Series, as set forth in a Certificate,
Instructions or Oral Instructions, or if an overdraft arises in the Account of a
particular Series for some other reason, including, without limitation, because
of a reversal of a conditional credit or the purchase of any currency, or if the
Fund is for any other reason indebted to Custodian with respect to a Series
(except a borrowing for investment or for temporary or emergency purposes using
Securities as collateral pursuant to a separate agreement and subject to the
provisions of Section 2 of this Article), such overdraft or indebtedness shall
be deemed to be a loan made by Custodian to the Fund for such Series payable on
demand and shall bear interest from the date incurred at a rate per annum as the
Fund and Custodian may agree from time to time. In addition, the Fund hereby
agrees that to the extent of the overdraft or indebtedness and interest thereon,
Custodian shall have a continuing lien and security interest in and to any
property specifically allocated to such Series at any time held by Custodian for
the benefit of such Series or in which such Series may have an interest which is
then in Custodian's possession or control or in possession or control of any
third party acting in Custodian's behalf. The Fund authorizes Custodian, in its
sole discretion, at any time to charge any such overdraft or indebtedness
together with interest due thereon against any balance of account standing to
such Series' credit on Custodian's books. Custodian shall promptly advise the
Fund whenever such Fund has an overdraft or indebtedness bearing interest as
provided in this Article, or whenever Custodian intends to realize upon its lien
or security interest.
2. If the Fund borrows money from any bank (including Custodian if the
borrowing is pursuant to a separate agreement) for investment or for temporary
or emergency purposes using Securities held by Custodian hereunder as collateral
for such borrowings, the Fund shall deliver to Custodian a Certificate
specifying with respect to each such borrowing: (a) the Series to which such
borrowing relates; (b) the name of the bank, (c) the amount of the borrowing,
(d) the time and date, if known, on which the loan is to be entered into, (e)
the total amount payable to the Fund on the borrowing date, (f) the 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 (g) a statement specifying whether such loan is in conformance
with the '40 Act and the Fund's then-current prospectus and statement of
additional information. Custodian shall deliver on the borrowing date specified
in a Certificate the specified collateral against payment 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 Certificate. Custodian may, at the
option of the lending bank, keep such collateral in its possession, but such
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collateral shall be subject to all rights therein given the lending bank by
virtue of any promissory note or loan agreement. Custodian shall deliver such
Securities as additional collateral as may be specified in a Certificate to
collateralize further any transaction described in this Section. The Fund shall
cause all Securities released from collateral status to be returned directly to
Custodian for the Account of the Series for which such Securities were last use
as collateral, and Custodian shall receive from time to time such return of
collateral as may be tendered to it.
ARTICLE VI
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any shares issued by the Fund
("Shares") it shall deliver to Custodian a Certificate or Instructions
specifying the amount of money and/or Securities to be received by Custodian for
the sale of such Shares and specifically allocated to an Account for the
appropriate Series.
2. Upon receipt of such money, Custodian shall credit such money to an
Account in the name of the Series for which such money was received.
3. Except as provided hereinafter, whenever the Fund desires Custodian
to make payment out of the money held by Custodian hereunder in connection with
a redemption of any Shares, it shall furnish to Custodian a Certificate or
Instructions specifying the total amount to be paid for such Shares. Custodian
shall make payment of such total amount to the transfer agent specified in such
Certificate or Instructions out of the money held in an Account of the
appropriate Series.
4. Notwithstanding the above provisions regarding the redemption of any
Shares, whenever any Shares are redeemed pursuant to any check redemption
privilege which may from time to time be offered by the Fund, Custodian, unless
otherwise instructed by a Certificate or Instructions, shall, upon presentment
of such check, charge the amount thereof against the money held in the Account
of the Series of the Shares being redeemed, provided, that if the Fund or its
agent timely advises Custodian that such check is not to be honored, Custodian
shall return such check unpaid.
ARTICLE VII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. Whenever the Fund shall determine to pay a dividend or distribution
on Shares it shall furnish to Custodian Instructions or a Certificate setting
forth with respect to the Series specified therein the date of the declaration
of such dividend or distribution, the total amount payable, and the payment
date.
12
2. Upon the payment date specified in such Instructions or Certificate,
Custodian shall pay out of the money held for the Account of such Series the
total amount payable to the dividend agent of the Fund specified therein.
ARTICLE VIII
CONCERNING CUSTODIAN
1. (a) Custodian shall exercise such good faith, reasonable care,
diligence, and prudence as a professional custodian for securities would
exercise in carrying out all of these duties and obligations. Except as
otherwise expressly provided herein, Custodian shall not be liable for any
costs, expenses, damages, liabilities or claims, including attorneys' and
accountants' fees (collectively, "Losses"), incurred by or asserted against the
Fund, except those Losses arising out of Custodian's own negligence or willful
misconduct. Custodian shall have no liability whatsoever for the action or
inaction of any Depositories, or, except to the extent such action or inaction
is a direct result of the Custodian's failure to fulfill its duties hereunder,
of any Foreign Depositories. With respect to any Losses incurred by the Fund as
a result of the acts or failures to act by a Subcustodian listed on part 1 of
Schedule 1, Custodian shall be liable to the Fund for such Losses, but only to
the extent such Losses arise out of or are caused by acts or failure to act by
such Subcustodian for which it is liable under the terms of its agreement with
Custodian and the laws governing such agreement. With respect to any Losses
incurred by the Fund as a result of the acts or omission of a Subcustodian
either not listed on part 1 of Schedule 1 or listed on part 2 of Schedule 1,
Custodian shall take appropriate action to recover such Losses, and Custodian's
liability shall be limited to the amount recovered net of costs and expenses. In
no event shall Custodian be liable to the Fund or any third party for special,
indirect or consequential damages, or lost profits or loss of business, arising
in connection with this Agreement, nor shall BNY or any Subcustodian be liable:
(i) for acting in accordance with any Certificate or Oral Instructions actually
received by Custodian and reasonably believed by Custodian to be given by an
Authorized Person; (ii) for acting in accordance with Instructions without
reviewing the same; (iii) for conclusively presuming that all Instructions are
given only by person(s) duly authorized; (iv) for conclusively presuming that
all disbursements of cash directed by the Fund by an Instruction, are in
accordance with Section 2(j) of Article n hereof; (v) for holding property in
any particular country, including, but not limited to, Losses resulting from
nationalization, expropriation or other governmental actions; regulation of the
banking or securities industry; exchange or currency controls or restrictions,
devaluations or fluctuations; availability of cash or Securities or market
conditions which prevent the transfer of property or execution of Securities
transactions or affect the value of property; (vi) for any Losses due to forces
beyond the reasonable control of Custodian, including without limitation
strikes, work stoppages, acts of war or terrorism, insurrection, revolution,
nuclear or natural catastrophes or acts of God, or interruptions, loss or
malfunctions of utilities, non-internal communication services, but only to the
extent beyond Custodian's reasonable control, and, but only if Custodian is
maintaining such
13
back-up system(s) and disaster recovery plan(s) as are required by its
regulators and all laws applicable to Custodian, interruption, loss or
malfunction of internal communication services or of computer (software or
hardware) services; it being understood that Custodian shall use commercially
reasonable best efforts to resume performance as soon as practicable under the
circumstances; (vii) for the insolvency of any Subcustodian (other than a BNY
Affiliate), any Depository, or, except to the extent such action or inaction is
a direct result of the Custodian's failure to fulfill its duties hereunder, any
Foreign Depository; or (viii) for any Losses arising from the applicability of
any law or regulation now or hereafter in effect, or from the occurrence of any
event, including, without limitation, implementation or adoption of any rules or
procedures of a Foreign Depository, which may affect, limit, prevent or impose
costs or burdens on, the transferability, convertibility, or availability of any
currency or Composite Currency Unit in any country or on the transfer of any
Securities, and in no event shall Custodian be obligated to substitute another
currency for a currency (including a currency that is a component of a Composite
Currency Unit) whose transferability, convertibility or availability has been
affected, limited, or prevented by such law, regulation or event, and to the
extent that any such law, regulation or event imposes a cost or charge upon
Custodian in relation to the transferability, convertibility, or availability of
any cash currency or Composite Currency Unit, such cost or charge shall be for
the account of the Fund, and Custodian may treat any account denominated in an
affected currency as a group of separate accounts denominated in the relevant
component currencies.
(b) Custodian may enter into subcontracts, agreements and
understandings with any BNY Affiliate, whenever and on such terms and conditions
as it deems necessary or appropriate to perform its services hereunder. No such
subcontract, agreement or understanding shall in any way discharge Custodian
from its obligations hereunder.
(c) The Fund agrees to indemnify Custodian and hold Custodian harmless
from and against any and all Losses sustained or incurred by or asserted against
Custodian by reason of or as a result of any action or inaction, or arising out
of Custodian's performance hereunder, including reasonable fees and expenses of
counsel, provided however, that the Fund shall not indemnify Custodian for those
Losses arising out of Custodian's own negligence or willful misconduct or for
any Losses which constitutes indirect, special, or consequential damages or lost
profits or loss of business. Custodian agrees to indemnify the Fund and hold the
Fund harmless from and against any and all Losses, including reasonable fees ad
expenses of counsel, sustained or incurred by or asserted against the Fund
arising out of the Custodian's negligence or willful misconduct, provided,
however, that the Custodian shall not indemnify the Fund for nor be liable for
any Losses which constitute indirect, special, or consequential damages or lost
profits or loss of business. This indemnity shall be a continuing obligation of
the Fund and the custodian, their successors and assigns, notwithstanding the
termination of this Agreement.
14
2. Without limiting the generality of the foregoing, Custodian shall be
under no obligation to inquire into, and shall not be liable for:
(a) Any Losses incurred by the Fund or any other person as a
result of the receipt or acceptance of fraudulent, forged or invalid Securities,
or Securities which are otherwise not freely transferable or deliverable without
encumbrance in any relevant market;
(b) The validity of the issue of any Securities purchased,
sold, or written by or for the Fund, the legality of the purchase, sale or
writing thereof, or the propriety of the amount paid or received therefor;
(c) The legality of the sale or redemption of any Shares, or
the propriety of the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any dividend
or distribution by the Fund;
(e) The legality of any borrowing by the Fund;
(f) The legality of any loan of portfolio Securities, nor
shall Custodian be under any duty or obligation to see to it that any cash or
collateral delivered to it by a broker, dealer or financial institution or held
by it at any time as a result of such loan of portfolio Securities is adequate
security for the Fund against any loss it might sustain as a result of such
loan, which duty or obligation shall be the sole responsibility of the Fund. In
addition, Custodian shall be under no duty or obligation to see that any broker,
dealer or financial institution to which portfolio Securities of the Fund are
lent makes payment to it of any dividends or interest which are payable to or
for the account of the Fund during the period of such loan or at the termination
of such loan, provided, however that Custodian shall promptly notify the Fund in
the event that such dividends or interest are not paid and received when due;
(g) The sufficiency or value of any amounts of money and/or
Securities held in any Special Account in connection with transactions by the
Fund; whether any broker, dealer, futures commission merchant or clearing member
makes payment to the Fund of any variation margin payment or similar payment
which the Fund may be entitled to receive from such broker, dealer, futures
commission merchant or clearing member, or whether any payment received by
Custodian from any broker, dealer, futures commission merchant or clearing
member is the amount the Fund is entitled to receive, or to notify the Fund of
Custodian's receipt or non-receipt of any such payment; except that Custodian
shall notify the Fund of any difference between any amount the Fund has
specified in a Certificate or Oral Instructions as the amount to be received and
the amount custodian actually receives; or
15
(h) Whether any Securities at any time delivered to, or held
by it or by any Subcustodian, for the account of the Fund and specifically
allocated to a Series are such as properly may be held by the Fund or such
Series under the provisions of its then current prospectus and statement of
additional information, or to ascertain whether any transactions by the Fund,
whether or not involving Custodian, are such transactions as may properly be
engaged in by the Fund.
3. Custodian may, with respect to questions of law specifically
regarding an Account, obtain the advice of counsel and shall be fully protected
with respect to anything done or omitted by it in good faith in conformity with
such advice.
4. Custodian shall be under no obligation to take action to collect any
amount payable on Securities in default, or if payment is refused after due
demand and presentment.
5. Custodian shall have no duty or responsibility to inquire into, make
recommendations, supervise, or determine the suitability of any transactions
affecting any Account.
6. The Fund shall pay to Custodian the fees and charges as may be
specifically agreed upon from time to time and such other fees and charges at
Custodian's standard rates for such services as may be applicable. The Fund
shall reimburse Custodian for all costs associated with the conversion of the
Fund's Securities hereunder and the transfer of Securities and records kept in
connection with this Agreement. The Fund shall also reimburse Custodian for
out-of pocket expenses, subject to approval of the Fund, which are a normal
incident of the services provided hereunder.
7. With Instructions from an Authorized Person or Oral Instructions,
Custodian has the right to debit any cash account for any amount payable by the
Fund in connection with any and all obligations of the Series to Custodian. In
addition to the rights of Custodian under applicable law and other agreements,
at any time when the Fund shall not have honored any of its obligations to
Custodian, Custodian shall have the right without notice to the Fund to retain
or set-off, against such obligations of the Series, any Securities or cash
Custodian or a BNY Affiliate may directly or indirectly hold for the account of
the Fund, and any obligations (whether matured or unmatured) that Custodian or a
BNY Affiliate may have to the Fund in any currency or Composite Currency Unit
and shall notify the Fund whenever it has exercised such right.
8. The Fund agrees to forward to Custodian a Certificate or
Instructions confirming Oral Instructions by the close of business of the same
day that such Oral Instructions are given to Custodian. The Fund agrees that the
fact that such confirming Certificate or Instructions are not received by
Custodian shall in no way affect the validity or enforceability of transactions
authorized by such Oral Instructions and effected by Custodian. If the Fund
elects to transmit Instructions through an on-line communications
16
system offered by Custodian, the Fund's use thereof shall be subject to the
Terms and Conditions attached as Appendix I hereto, and Custodian shall provide
user and authorization codes, passwords and authentication keys only to an
Authorized Person or a person reasonably believed by Custodian to be an
Authorized Person.
9. The books and records pertaining to the Fund which are in possession
of Custodian shall be the property of the Fund. Such books and records shall be
prepared and maintained as required by the '40 Act and the rules thereunder. The
Fund, or its authorized representatives, all regulatory authorities whose
statutes, laws, rules and regulations are applicable to the Fund shall have
access to such books and records during Custodian's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records shall
be provided by Custodian to the Fund or its authorized representative. Upon the
reasonable request of the Fund, Custodian shall provide in hard copy or on
computer disc any records included in any such delivery which are maintained by
Custodian on a computer disc, or are similarly maintained.
10. It is understood that Custodian is authorized to supply any
information regarding the Accounts which is required by any law, regulation or
rule now or hereafter in effect. The Custodian shall provide the Fund with any
report obtained by Custodian on the system of internal accounting control of a
Depository, and with such reports on its own system of internal accounting
control as the Fund may reasonably request from time to time.
Custodian hereby specifically agrees that it will provide any
sub-certifications reasonably requested by the Fund in connection with any
certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or
regulations promulgated by the Securities and Exchange Commission thereunder,
provided the same do not change BNY's standard of care. 12. Custodian will also
provide those custody related services not already described above that are
included in the Service Guidelines established and agreed between the parties as
the same may be revised from time to time by mutual agreement of the parties
hereto. The Service Guidelines will also govern the timeliness and performance
standards for custody related services where specified therein.
13. Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against Custodian in
connection with this Agreement.
ARTICLE IX
TERMINATION
1. 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 ninety (60) days after the date of giving of such
notice. In the event such notice is given by the Fund, shall designate a
successor custodian or custodians, each of which
17
shall meet the requirements of 1940 Act. In the event such notice is given by
Custodian, the Fund shall, on or before the termination date, deliver to
Custodian, written notice designating a successor custodian or custodians. In
the absence of such designation by the Fund, Custodian may designate a successor
custodian which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. Upon the date set forth in
such notice this Agreement shall terminate, and 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 money then owned by the Fund and
held by it as Custodian, after deducting all fees, expenses and other amounts
for the payment or reimbursement of which it shall then be entitled.
2. If a successor custodian is not designated by the Fund or Custodian
in accordance with the preceding Section, the Fund shall upon the date specified
in the notice of termination of this Agreement and upon the delivery by
Custodian of all Securities (other than Securities which cannot be delivered to
the Fund) and money then owned by the Fund be deemed to be its own custodian and
Custodian shall thereby be relieved of all duties and responsibilities pursuant
to this Agreement, other than the duty with respect to Securities which cannot
be delivered to the Fund to hold such Securities hereunder in accordance with
this Agreement.
ARTICLE X
MISCELLANEOUS
1. The Fund agrees to furnish to Custodian a new Certificate of
Authorized Persons in the event of any change in the then present Authorized
Persons. Until such new Certificate is received, Custodian shall be fully
protected in acting upon Certificates or Oral Instructions of such present
Authorized Persons.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Custodian, shall be sufficiently given if
addressed to Custodian and received by it at its offices at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Custodian may from time to
time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if addressed
to the Fund and received by it at its offices at 0000 Xxxx Xxxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxx 00000, or at such other place as the Fund may from
time to time designate in writing.
4. Each and every right granted to either party hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver
18
thereof, nor will any single or partial exercise by either party of any right
preclude any other or future exercise thereof or the exercise of any other
right.
5. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any exclusive jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected thereby. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties, except that any
amendment to the Schedule I hereto need be signed only by the Fund and any
amendment to Appendix I hereto need be signed only by Custodian. 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 either party without the written consent of the other.
6. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. The Fund and Custodian hereby consent to the jurisdiction of a state or
federal court 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 proceeding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient
forum. The Fund and Custodian each hereby irrevocably waives any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement.
7. 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.
8. A copy of the Declaration of trust of each Fund that is a
Massachusetts Business Trust is on file with the Secretary of the Commonwealth
of Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Board of Trustees of the Fund as Trustees and not individually and
that the obligations of this instrument are not binding upon any of the Trustees
or shareholders individually but are binding only upon the assets and property
of the Fund; provided, however, that the Declaration of trust of the Fund
provides that the assets of a particular Series of the Fund shall under no
circumstance be charged with liabilities attributable to any other Series of the
fund and that all person extending credit to, or contracting with or having any
claim against a particular Series of the Fund shall look only to the assets of
that particular Series for payment of such credit, contract or claim.
19
IN WITNESS WHEREOF, the Fund and Custodian have caused this Agreement
to be executed by their respective officers, thereunto duly authorized, as of
the day and year first above written.
[ILLEGIBLE]
By: _______________________
On behalf of each Fund identified on Exhibit
A hereto:
THE BANK OF NEW YORK
By: /S/ XXXXXX X. XxXXXX
-------------------------------
Title: XXXXXX X. XxXXXX
VICE PRESIDENT
20
AMENDED EXHIBIT A
FUND EFFECTIVE DATE
---- --------------
ING EQUITY TRUST
ING Convertible Fund June 9, 2003
ING Equity and Bond Fund June 9, 2003
ING Financial Services Fund June 9, 2003
ING Growth Opportunities Fund June 9, 2003
ING LargeCap Growth Fund June 9, 2003
ING Large Company Value Fund June 9, 2003
ING MidCap Opportunities Fund June 9, 2003
ING MidCap Value Fund June 9, 2003
ING Principal Protection Fund June 2, 2003
ING Principal Protection Fund II June 2, 2003
ING Principal Protection Fund III June 2, 2003
ING Principal Protection Fund IV June 2, 2003
ING Principal Protection Fund V June 2, 2003
ING Principal Protection Fund VI June 2, 2003
ING Principal Protection Fund VII May 1, 2003
ING Real Estate Fund June 9, 2003
ING Research Enhanced Index Fund June 9, 2003
ING SmallCap Opportunities Fund June 9, 2003
ING SmallCap Value Fund June 9, 2003
ING Tax Efficient Equity Fund June 9, 2003
ING FUNDS TRUST
ING Classic Money Market Fund April 7, 2003
ING GNMA Income Fund April 7, 2003
ING High Yield Bond Fund April 7, 2003
ING High Yield Opportunity Fund April 7, 2003
ING Intermediate Bond Fund April 7, 2003
ING Lexington Money Market Trust April 7, 2003
ING Money Market Fund April 7, 2003
ING National Tax-Exempt Bond Fund April 7, 2003
ING Strategic Bond Fund April 7, 2003
ING GET FUND
ING GET Fund-Series V March 13, 2003
ING INVESTMENT FUNDS, INC.
ING MagnaCap Fund June 9, 2003
ING INVESTORS TRUST
ING Alliance Mid Cap Growth Portfolio January 6, 2003
ING Eagle Asset Value Equity Portfolio January 6, 2003
ING UBS U.S. Balanced Portfolio January 6, 2003
ING FMR(SM) Diversified Mid Cap Portfolio January 6, 2003
ING Xxxxxxx Xxxxx Internet Tollkeeper(SM)
Portfolio January 6, 2003
ING Limited Maturity Bond Portfolio January 6, 2003
ING Liquid Assets Portfolio January 6, 2003
ING Xxxxxxxx Equity Opportunities Portfolio January 6, 2003
ING Mercury Focus Value Portfolio January 6, 2003
ING Mercury Fundamental Growth Portfolio January 6, 2003
ING Salomon Brothers All Cap Portfolio January 6, 2003
ING Salomon Brothers Investors Portfolio January 6, 2003
ING AIM Mid Cap Growth Portfolio January 6, 2003
Fund for Life Series January 6, 2003
ING MFS Mid Cap Growth Portfolio January 13, 2003
ING MFS Research Portfolio January 13, 2003
ING MFS Total Return Portfolio January 13, 2003
ING X. Xxxx Price Capital Appreciation
Portfolio January 13, 2003
ING Developing World Portfolio January 13, 2003
ING Hard Assets Portfolio January 13, 2003
ING Capital Guardian Managed Global
Portfolio January 13, 2003
ING International Portfolio January 13, 2003
ING JPMorgan Xxxxxxx International
Enhanced EAFE Portfolio January 13, 2003
ING Xxxxxxx Growth Portfolio January 13, 2003
ING Janus Growth and Income Portfolio January 13, 2003
ING Janus Special Equity Portfolio January 13, 2003
ING PIMCO Core Bond Portfolio January 13, 2003
ING Xxx Xxxxxx Global Franchise Portfolio January 13, 2003
ING X. Xxxx Price Equity Income Portfolio January 13, 2003
ING Capital Guardian Large Cap Value
Portfolio January 13, 2003
ING Capital Guardian Small Cap Portfolio January 13, 2003
ING JPMorgan Xxxxxxx Small Cap Equity
Portfolio January 13, 2003
ING Xxx Xxxxxx Real Estate Portfolio January 13, 2003
ING Xxx Xxxxxx Growth and Income
Portfolio January 13, 2003
ING MAYFLOWER TRUst
ING Growth + Value Fund June 9, 2003
ING MUTUAL FUNDS
ING Foreign Fund* July 1, 2003
ING VARIABLE INSURANCE TRUST
ING GET U.S. Core Portfolio - Series 1 June 13, 2003
ING SERIES FUND, INC.
Brokerage Cash Reserves June 2, 2003
ING Aeltus Money Market Fund June 2, 2003
ING Balanced Fund June 2, 2003
ING Bond Fund June 2, 2003
ING Classic Principal Protection Fund June 2, 2003
ING Classic Principal Protection Fund II June 2, 2003
ING Classic Principal Protection Fund III June 2, 2003
ING Classic Principal Protection Fund IV June 2, 2003
ING Government Fund June 2, 2003
ING Growth Fund June 9, 2003
ING Growth & Income Fund June 9, 2003
ING Index Plus LargeCap Fund June 9, 2003
ING Index Plus MidCap Fund June 9, 2003
ING Index Plus Protection Fund June 2, 2003
ING Index Plus SmallCap Fund June 9, 2003
ING Small Company Fund June 9, 2003
ING Strategic Allocation Balanced Fund June 2, 2003
ING Strategic Allocation Growth Fund June 2, 2003
ING Strategic Allocation Income Fund June 2, 2003
ING Technology Fund June 2, 2003
ING Value Opportunity Fund June 9, 2003
*This Amended Exhibit A will be effective with respect to this Fund upon the
effective date of the initial Registration Statement with respect to the Fund.
APPENDIX I
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. License; Use. Upon delivery to an Authorized Person of the
Fund of software enabling the Fund to obtain access to the System (the
"Software"), Custodian grants to the Fund a personal, nontransferable and
nonexclusive license to use the Software solely for the purpose of transmitting
Written Instructions, receiving reports, making inquiries or otherwise
communicating with Custodian in connection with the Account(s). The Fund shall
use the Software solely for its own internal and proper business purposes and
not in the operation of a service bureau. Except as set forth herein, no license
or right of any kind is granted to the Fund with respect to the Software. The
Fund acknowledges that Custodian and its suppliers retain and have title and
exclusive proprietary rights to the Software, including any trade secrets or
other ideas, concepts, know-how, methodologies, or information incorporated
therein and the exclusive rights to any copyrights, trademarks and patents
(including registrations and applications for registration of either), or other
statutory or legal protections available in respect thereof. The Fund further
acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by Custodian or its
suppliers. The Fund shall not take any action with respect to the Software
inconsistent with the foregoing acknowledgments, nor shall you attempt to
decompile, reverse engineer or modify the Software. The Fund may not copy, sell,
lease or provide, directly or indirectly, any of the Software or any portion
thereof to any other person or entity without Custodian's prior written consent.
The Fund may not remove any statutory copyright notice or other notice included
in the Software or on any media containing the Software. The Fund shall
reproduce any such notice on any reproduction of the Software and shall add any
statutory copyright notice or other notice to the Software or media upon
Custodian's request. Custodian shall be responsible for all costs, if any,
associated with such request in the preceding sentence.
2. Equipment. The Fund shall obtain and maintain at its own cost
and expense all equipment and services, including but not limited to
communications services, necessary for it to utilize the Software and obtain
access to the System, and Custodian shall not be responsible for the reliability
or availability of any such equipment or services.
3. Proprietary Information. The Software, any data base and any
proprietary data, processes, information and documentation made available to the
Fund (other than which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the "Information"),
are the exclusive and
confidential property of Custodian or its suppliers. The Fund shall keep the
Information confidential by using the same care and discretion that the Fund
uses with respect to its own confidential property and trade secrets, but not
less than reasonable care. Upon termination of the Agreement or the Software
license granted herein for any reason, the Fund shall return to Custodian any
and all copies of the Information which are in its possession or under its
control.
4. Modifications. Custodian reserves the right to modify the
Software from time to time and the Fund shall install new releases of the
Software as Custodian may reasonably direct. Custodian shall be responsible for
all costs, if any, associated with the installation of such new releases. The
Fund agrees not to modify or attempt to modify the Software without Custodian's
prior written consent. The Fund acknowledges that any modifications to the
Software, whether by the Fund or Custodian and whether with or without
Custodian's consent, shall become the property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS
MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT
TO THE SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN
LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE. THE FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY
DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ACTS OF GOD, MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION,
INTERRUPTION OR MALFUNCTION OF COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR
ANY OTHER SIMILAR OR DISSIMILAR CAUSE BEYOND THEIR REASONABLE CONTROL, PROVIDED
THAT REASONABLE BACK-UP AND DISASTER RECOVER SYSTEMS WERE IN PLACE.
6. Security; Reliance; Unauthorized Use. The Fund will cause all
persons utilizing the Software and System to treat all applicable user and
authorization codes, passwords and authentication keys with the same care that
such persons would use with respect to the Fund's own computer Software and
System, and it will establish internal control and safekeeping procedures to
restrict the availability of the same to persons duly authorized to give
Instructions. Custodian is hereby irrevocably authorized to act in accordance
with and reasonably rely on Instructions received by it from an Authorized
Person through the System. The Fund acknowledges that it is its sole
responsibility to assure that only persons duly authorized use the System and
that Custodian shall not be responsible nor liable for any unauthorized use
thereof.
7. System Acknowledgments. Custodian shall acknowledge through
the System its receipt of each transmission communicated through the System, and
in the absence of such acknowledgment Custodian shall not be liable for any
failure to act in accordance with such transmission, provided Custodian did not
receive such acknowledgment.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY
UNITED STATES LAW. THE FUND MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT,
TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO
ANY OTHER COUNTRY. IF CUSTODIAN DELIVERED THE SOFTWARE TO THE FUND OUTSIDE OF
THE UNITED STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN
ACCORDANCE WITH THE EXPORTER ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO
U.S. LAW IS PROHIBITED. The Fund hereby authorizes Custodian to report its name
and address to government agencies to which Custodian is required to provide
such information by law.
9. ENCRYPTION. The Fund acknowledges and agrees that encryption
may not be available for every communication through the System, or for all
data. The Fund agrees that Custodian may deactivate any encryption features at
any time, upon one business day's notice to the Fund, without further notice or
liability to the Fund, for the purpose of maintaining, repairing or
troubleshooting the System or the Software.
SCHEDULE I
SECRETARY'S CERTIFICATE
Persons Authorized to Instruct Custodian
The undersigned Secretary of:
THE GCG TRUST ING SENIOR INCOME FUND
ING EQUITY TRUST ING VARIABLE INSURANCE TRUST
ING FUNDS TRUST ING VARIABLE PRODUCTS TRUST
ING INVESTMENT FUNDS, INC. ING VP EMERGING MARKETS FUND INC.
ING MAYFLOWER TRUST ING VP NATURAL RESOURCES TRUST
ING MUTUAL FUNDS USLICO SERIES FUND
ING PRIME RATE TRUST
(each a "Company/Trust"), hereby certifies as follows:
(a) That attached hereto as Exhibit A is a true copy of the
resolutions adopted at a duly constituted meeting of its Board
of Directors/Trustees, held on the 25th day of February, 2003
and that such resolutions have not been amended, modified,
rescinded or superceded and are in full force and effect; and
(b) That the persons listed in Attachment A are empowered by the
resolutions and set forth opposite each name is their position
and specimen signature; and
(c) That each Company/ Trust is duly organized and existing, that
its charter empowers it to transact the business by the
attached resolutions defined, and that no limitation has been
imposed upon such powers by the By-Laws or otherwise, except
as set forth in the currently effective Prospectus of each
Company/Trust; and
(d) That Attachment A may be executed in counterparts.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS SIGNED BELOW, THIS 3RD DAY OF MARCH,
2003.
BY: /s/ XXXXXXXX X. XXXXXXXX
------------------------------
XXXXXXXX X. XXXXXXXX
SECRETARY
ATTACHMENT A
Persons Authorized to Instruct Custodian
POSITION WITH THE FUND(S)
NAME (UNLESS OTHERWISE NOTED) SPECIMEN SIGNATURE
---- ------------------------ ------------------
Xxxxx X. Xxxxxxxx President, Chief Executive Officer & Chief
Operating Officer /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxx Executive Vice President, Principal Financial
Officer & Assistant Secretary /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxx Executive Vice President
_________________________
Xxxxxx X. Naka Senior Vice President & Assistant Secretary /s/ Xxxxxx X. Naka
-------------------------
Xxxxx X. Xxxxx Senior Vice President & Controller of
ING Funds Services, LLC /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx Vice President of ING Funds Services, LLC /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxxx X. Xxxxxxxx Vice President & Secretary /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxx Vice President & Treasurer /s/ Xxxxx X. Xxxxxxx
-------------------------
Xxxxx Xxxxxxxx Assistant Vice President /s/ Xxxxx Xxxxxxxx
-------------------------
Xxxx Xxxxx Assistant Vice President /s/ Xxxx Xxxxx
-------------------------
Xxxxx Xxxxxx Manager - Fund Accounting of
ING Funds Services, LLC /s/ Xxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxxxxxxx Supervisor - Fund Accounting of
ING Funds Services, LLC /s/ Xxxxxx Xxxxxxxxxxx
-------------------------
Xxxx Xxxxx Supervisor-Fund Accounting of
ING Funds Services, LLC /s/ Xxxx Xxxxx
-------------------------
Xxxxx Xxxxxx Supervisor-Fund Accounting of
ING Funds Services, LLC /s/ Xxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxxxx Supervisor-Fund Accounting of
ING Funds Services, LLC /s/ Xxxxxx Xxxxxxxx
-------------------------
ATTACHMENT A
Persons Authorized to Instruct Custodian
POSITION WITH THE FUND(S)
NAME (UNLESS OTHERWISE NOTED) SPECIMEN SIGNATURE
---- ------------------------ ------------------
Xxxxx X. Xxxxxxxx President, Chief Executive Officer & Chief
Operating Officer _________________________
Xxxxxxx X. Xxxxxx Executive Vice President, Principal Financial
Officer & Assistant Secretary /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxx Executive Vice President /s/ Xxxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Naka Senior Vice President & Assistant Secretary /s/ Xxxxxx X. Naka
-------------------------
Xxxxx X. Xxxxx Senior Vice President & Controller of
ING Funds Services, LLC _________________________
Xxxxxxx X. Xxxxxxxx Vice President of ING Funds Services, LLC _________________________
Xxxxxxxx X. Xxxxxxxx Vice President & Secretary /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxx Vice President & Treasurer _________________________
Xxxxx Xxxxxxxx Assistant Vice President _________________________
Xxxx Xxxxx Assistant Vice President _________________________
Xxxxx Xxxxxxx Manager - Fund Accounting of
ING Funds Services, LLC _________________________
Xxxxxx Xxxxxxxxxxx Supervisor - Fund Accounting of
ING Funds Services, LLC _________________________
Xxxx Xxxxx Supervisor-Fund Accounting of
ING Funds Services, LLC _________________________
Xxxxx Xxxxxx Supervisor-Fund Accounting of
ING Funds Services, LLC _________________________
Xxxxxx Xxxxxxxx Supervisor-Fund Accounting of
ING Funds Services, LLC _________________________
THE GCG TRUST
ING EQUITY TRUST
ING FUNDS TRUST
ING INVESTMENT FUNDS, INC.
ING MAYFLOWER TRUST
ING MUTUAL FUNDS
ING PRIME RATE TRUST
ING SENIOR INCOME FUND
ING VARIABLE INSURANCE TRUST
ING VARIABLE PRODUCTS TRUST
ING VP EMERGING MARKETS FUND, INC.
ING VP NATURAL RESOURCES TRUST
USLICO SERIES FUND
(EACH A "COMPANY/TRUST")
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS/TRUSTEES AT A MEETING HELD
FEBRUARY 25, 2003.
WHEREAS, on November 22, 2002, the Boards of Directors/Trustees(the
"Board") of all ING Funds (the "Funds") have approved entering into a
Custodian Agreement with The Bank of New York ("BNY") (the
"Custodian"), which provides that the Funds designate certain persons
to give instructions on behalf of the Funds and to authorize the
Custodian to rely on written instructions over their signatures.
NOW, THEREFORE, BE IT RESOLVED, that until further order of the Board,
the following persons be, and they hereby are, authorized, in
accordance with the timing of the conversion schedule to BNY, as
Custodian for the Funds, to execute and cause to be delivered to BNY,
any and all instructions, orders, and directions required or permitted
to be given in the name of each of the Funds and on their behalf
pursuant to their respective Custodian Agreement:
POSITION WITH THE FUNDS, UNLESS OTHERWISE
NAME NOTED
---- -----
Xxxxx X. Xxxxxxxx President, Chief Executive Officer &
Chief Operating Officer
Xxxxxxx X. Xxxxxx Executive Vice President, Principal
Financial Officer & Assistant Secretary
Xxxxxxx X. Xxxxx Executive Vice President
Xxxxxx X. Naka Senior Vice President & Assistant Secretary
Xxxxx X. Xxxxx Senior Vice President & Controller of ING
Funds Services, LLC
Xxxxxxx X. Xxxxxxxx Vice President of ING Funds Services, LLC
Xxxxxxxx X. Xxxxxxxx Vice President & Secretary
Xxxxx X. Xxxxxxx Vice President & Treasurer
Xxxxx Xxxxxx Manager - Fund Accounting of ING Funds
Services, LLC
Xxxxxx Xxxxxxxxxxx Supervisor - Fund Accounting of ING Funds
Services, LLC
Xxxx Xxxxx Supervisor - Fund Accounting of ING Funds
Services, LLC
Xxxxx Xxxxxx Supervisor - Fund Accounting of ING Funds
Services, LLC
Xxxxxx Xxxxxxxx Supervisor - Fund Accounting of ING Funds
Services, LLC
and that, except as otherwise provided in said Custodian Agreements,
all such instructions and directions, with respect to amounts in excess
of $100.00 but less than $10,000.00, shall require the signature of two
such persons; and with respect to amounts equal to or in excess of
$10,000.00, all such instructions and directions shall require the
signature of two such persons, one of whom shall be a senior officer;
and
FURTHER RESOLVED, that should it be necessary to make any additions to
said list of authorized persons, prior to a regularly scheduled meeting
of the Board, the President and any senior officer of each of the Funds
be, and they hereby are, authorized to designate such person(s), so
long as the Board is provided notification and ratifies such
designation at the next regularly scheduled meeting; and
FURTHER RESOLVED, that the appointment of the following persons, as
additional persons authorized to effect instructions and directions
with respect to amounts in excess of $100.00 but less than $50,000.00,
be, and hereby is, approved:
NAME POSITION WITH THE FUNDS
---- -----------------------
Xxxxx Xxxxxxxx Assistant Vice President
Xxxx Xxxxx Assistant Vice President
FURTHER RESOLVED, that, except as otherwise provided in the Custodian
Agreements, all instructions and directions effected by either of these persons,
with respect to amounts in excess of $100.00 but less than $50,000.00, shall
require his/her signature and that of one other person authorized to instruction
the Custodian, which need not be a senior officer.
EXHIBIT A
SPECIFIED COUNTRIES
Argentina Jamaica Thailand
Australia Japan Transnational
Austria Jordan Turkey
Bahrain Kenya Ukraine
Bangladesh Latvia United Kingdom
Belgium Lebanon Uruguay
Bermuda Lithuania Venezuela
Bolivia Luxembourg Vietnam
Botswana Malaysia Zambia
Brazil Mauritius Zimbabwe
Bulgaria Mexico
Canada Morocco
Cayman Islands Namibia
Chile Netherlands
China New Zealand
Colombia Nigeria
Costa Rica Norway
Croatia Oman
Cyprus Pakistan
Czech Republic Palestine
Denmark Panama
Ecuador Peru
Egypt Philippines
Estonia Poland
Finland Portugal
France Romania
Germany Russia
Ghana Singapore
Greece Slovakia
Hong Kong Slovenia
Hungary South Africa
Iceland South Korea
India Spain
Indonesia Sri Lanka
Ireland Swaziland
Israel Sweden
Italy Switzerland
Ivory Coast Taiwan
