EXHIBIT h(5)
AGENCY AGREEMENT
THIS AGREEMENT made the of the 7th day of July, 2001, by and between,
each of the following registered investment companies AETNA VARIABLE FUND, d/b/a
Aetna Growth and Income VP, a Massachusetts business trust, AETNA VARIABLE
ENCORE FUND, d/b/a Aetna Money Market VP, a Massachusetts business trust, AETNA
INCOME SHARES, d/b/a Aetna Bond VP, a Massachusetts business trust, AETNA
BALANCED VP, INC., a Maryland corporation, AETNA GET FUND, a Massachusetts
business trust, AETNA GENERATION PORTFOLIOS, a Maryland corporation, and AETNA
VARIABLE PORTFOLIOS, INC., a Maryland corporation (individually and severally
the "Fund"), on behalf of its separate portfolios or series, if any, and any
other portfolios or series established in the future as a series of the Fund and
set forth on Exhibit A, attached hereto, as amended from time to time (each such
portfolio or series hereinafter jointly and severally referred to as a
"Series"), each having its principal place of business at 00 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxx, 00000-0000 and DST SYSTEMS, INC., a corporation organized
and existing under the laws of the State of Delaware, having its principal place
of business at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
("DST"):
WITNESSETH:
WHEREAS, Fund desires to appoint DST as Transfer Agent and Dividend
Disbursing Agent, and DST desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Documents to be Filed with Appointment.
In connection with the appointment of DST as Transfer Agent and
Dividend Disbursing Agent for Fund, there will be filed with DST the
following documents:
A. A certified copy of the resolutions of the Board of Directors
or Trustees of Fund appointing DST as Transfer Agent and
Dividend Disbursing Agent, approving the form of this
Agreement, and giving written instructions and requests on
behalf of Fund;
B. A certified copy of the Articles of Incorporation or
Declaration of Trust of Fund and all amendments thereto;
C. A certified copy of the bylaws of Fund;
D. Copies of the most recent Registration Statements and
amendments thereto filed with the Securities and Exchange
Commission.
E. Specimens of the signatures of the officers of the Fund and
individuals authorized to sign written instructions and
requests;
F. An opinion of counsel for Fund with respect to:
(1) Fund's organization and existence under the laws of
its state of organization,
(2) The status of all shares of stock of Fund covered by
the appointment under the Securities Act of 1933, as
amended, and any other applicable federal or state
statute, and
(3) That all issued shares are, and all unissued shares
will be, when issued, validly issued, fully paid and
nonassessable by Fund.
2. Certain Representations and Warranties of DST.
DST represents and warrants to Fund that:
A. It is a corporation duly organized and existing and in good
standing under the laws of Delaware.
B. It is duly qualified to carry on its business in the State of
Missouri.
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C. It is empowered under applicable laws and by its Articles of
Incorporation and bylaws to enter into and perform the
services contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required
under the Securities Exchange Act of 1934.
E. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
3. Certain Representations and Warranties of Fund.
Fund represents and warrants to DST that:
A. It is duly organized as heretofore described and existing and
in good standing under the laws of the state set forth after
its name in the first paragraph of this Agreement.
B. It is an open-end management investment company registered
under the Investment Company Act of 1940, as amended.
C. A registration statement under the Securities Act of 1933 has
been filed and will be effective with respect to all shares of
Fund being offered for sale.
D. All requisite steps have been and will continue to be taken to
register Fund's shares for sale in all applicable states and
such registration will be effective at all times shares are
offered for sale in such state.
E. Fund is empowered under applicable laws and by its charter or
declaration and bylaws to enter into and perform this
Agreement.
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4. Scope of Appointment.
A. Subject to the conditions set forth in this Agreement, Fund
hereby appoints DST as Transfer Agent and Dividend Disbursing
Agent.
B. DST hereby accepts such appointment and agrees that it will
act as Fund's Transfer Agent and Dividend Disbursing Agent.
DST agrees that it will also act as agent in connection with
Fund's periodic withdrawal payment accounts and other open
accounts or similar plans for shareholders, if any.
C. Fund agrees to use its best efforts to deliver to DST in
Kansas City, Missouri, as soon as they are available, all of
its shareholder account records.
D. DST, utilizing DST's computerized data processing systems for
securityholder accounting (the "TA2000 System" for open-end
funds and "STS System" for closed-end funds and the "Systems"
for both the TA2000(R) and STS Systems, jointly and
severally), and subject to the provisions of Sections 17,18
and 19 of this Agreement, will perform certain services as
transfer, dividend disbursing and shareholders' servicing
agent for Fund, and as agent of Fund for shareholder accounts
thereof, in a timely manner including, but not limited to:
maintaining all shareholder accounts; providing transaction
journals; preparing shareholder meeting lists (one annually at
no charge, lists for additional meetings will be charged
for), mailing proxies and proxy materials, receiving and
tabulating proxies, certifying the shareholder votes in Fund
(all proxy activities are subject to proxy fees and
reimbursable fees); mailing shareholder reports and
prospectuses supplied to DST by Fund or its agents;
withholding, as required by Federal law and as directed by
Fund, taxes on nonresident alien and foreign corporation
accounts, for pension and deferred income, backup
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withholding or other instances agreed upon by Fund and DST;
disbursing income dividends and capital gains distributions to
shareholders, preparing, filing and mailing U.S. Treasury
Department Forms 1099, 1042, 1042S and backup withholding as
required for all shareholders and as directed by Fund;
preparing and mailing confirmation forms to shareholders and
dealers, as instructed, for all purchases and liquidations
(not applicable to closed-end funds except for transfers into
or out of a shareholders' account) of shares of Fund and other
confirmable transactions in shareholders' accounts; recording
reinvestment of dividends and distributions in shares of Fund;
providing or making available on-line daily and monthly
reports as provided by either of the Systems and as requested
by Fund or its management company; maintaining those records
necessary to carry out DST's duties hereunder, including all
information reasonably required by Fund to account for all
transactions (non-valued in closed-end funds) in Fund shares,
calculating the appropriate sales charge with respect to each
purchase of Fund shares as set forth in the prospectus for
Fund (not applicable to closed-end funds); solely for open-end
funds: determining the portion of each sales charge payable to
the dealer participating in a sale in accordance with
schedules delivered to DST by Fund's principal underwriter or
distributor (hereinafter "principal underwriter") from time to
time, disbursing dealer commissions collected to such dealers,
determining the portion of each sales charge payable to such
principal underwriter and disbursing such commissions to the
principal underwriter; receiving correspondence pertaining to
any former, existing or new shareholder account, processing
such correspondence for proper recordkeeping, and responding
promptly to shareholder correspondence; mailing to dealers
confirmations of wire order trades (not
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applicable to closed-end funds); mailing copies of shareholder
statements to shareholders and registered representatives of
dealers in accordance with Fund's instructions; and, solely in
the case of open-end funds, processing, generally on the date
of receipt, purchases or redemptions or instructions to settle
any mail or wire order purchase or redemption (or in the case
of closed-end funds, effecting transfer of certificates)
received in proper order as set forth in the prospectus and
DST's Procedures, as hereinafter defined, rejecting promptly
any requests not received in proper order (as defined by Fund
or its agents or DST's Procedures), and, solely in the case of
open-end funds, causing exchanges of shares to be executed in
accordance with Fund's instructions, the applicable
prospectus, DST's Procedures and the general exchange
privilege application.
E. At the request of an individual authorized by Fund to provide
instructions to DST, and receive inquiries from DST in
connection with the Agreement (each an "Authorized Person," as
set forth on Exhibit D hereto) DST shall use reasonable
efforts to provide the services set forth in this Agreement in
connection with transactions (i) on behalf of retirement plans
and participants in retirement plans and transactions ordered
by brokers as part of a "no transaction fee" program ("NTF"),
the processing of which transactions require DST to use
methods and procedures other than those usually employed by
DST to perform shareholder servicing agent services, (ii)
involving the Provision of information to DST after the
commencement of me nightly processing cycle of whichever of
the Systems is applicable or (iii) which require more manual
intervention by DST, either in the entry of data or in the
modification or amendment of
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reports generated by the Systems than is usually required by
non-retirement plan, non-NTF and pre-nightly transactions (the
"Exception Services").
F. Fund shall have the right to add new Series to the TA2000
System upon at least thirty (30) days' prior .written notice
to DST provided that the requirements of the new Series are
generally consistent with services then being provided by DST
under this Agreement. Rates or charges for additional Series
shall be as set forth in Exhibit B, as hereinafter defined,
for the remainder of the contract term except as such Series
use functions, features or characteristics for which DST has
imposed an additional charge as part of its standard pricing
schedule. In the latter event, rates and charges shall be in
accordance with DST's then-standard pricing schedule.
G. DST shall use reasonable efforts to provide, reasonably
promptly under the circumstances, the same services with
respect to any new, additional functions or features or any
changes or improvements to existing functions or features as
provided for in Fund's instructions, prospectus or application
as amended from time to time, for Fund provided (i) DST is
advised in advance by Fund of any changes therein, (ii) the
Systems and the mode of operations utilized by DST as then
constituted support such additional functions and features,
and (iii) any new or increased services to be provided by DST
or commenced to be used by Fund in addition to those currently
used at execution hereof or any new products or functionality
added to the TA2000 System shall be provided in accordance
with the Fee Schedules then attached to the existing Agency
Agreements between DST or, if not referenced in such Fee
Schedules, at mutually agreed to fees and charges. If any
addition to, improvement of or change in the features and
functions currently provided by either of the Systems or the
operations
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as requested by Fund requires an enhancement or modification
to either of the Systems or to operations as presently
conducted by DST, DST shall not be liable therefor until such
modification or enhancement is, if DST agrees to develop or
institute it, developed (at Fund's expense) and installed on
the Systems or a new mode of operation is instituted. If any
new, additional function or feature or change or improvement
to existing functions or features or new service or mode of
operation measurably increases DST's cost of performing the
services required hereunder at the current level of service,
DST shall advise Fund of the amount of such increase and if
Fund elects to utilize such function, feature or service, DST
shall be entitled to increase its fees by the amount of the
increase in costs. In no event shall DST be responsible for or
liable to provide any additional function, feature,
improvement or change in method of operation until it has
consented thereto in writing.
5. Limit of Authority.
Unless otherwise expressly limited by the resolution of appointment or
by subsequent action by Fund, the appointment of DST as Transfer Agent
will be construed to cover the full amount of authorized stock of the
class or classes for which DST is appointed as the same will, from time
to time, be constituted, and any subsequent increases in such
authorized amount. In case of such increase Fund will file with DST:
A. If the appointment of DST was theretofore expressly limited a
certified copy of a resolution of Fund's Board of Directors
increasing the authority of DST;
B. A certified copy of the amendment to Fund's Articles of
Incorporation authorizing the increase of stock;
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C. A certified copy of the order or consent of each governmental
or regulatory authority required by law to consent to the
issuance of the increased stock, and an opinion of counsel
that the order or consent of no other governmental or
regulatory authority is required;
D. Opinion of counsel for Fund stating:
(1) The status of the additional shares of stock of Fund
under the Securities Act of 1933, as amended, and any
other applicable federal or state statute and that
said shares may be legally issued; and
(2) That the additional shares are, or when issued will
be, validly issued, fully paid and nonassessable by
Fund.
6. Compensation and Expenses.
A. In consideration for its services hereunder as Transfer Agent
and Dividend Disbursing Agent, Fund will pay to DST from time
to time a reasonable compensation for all services rendered as
Agent, and also all its reasonable out-of-pocket expenses,
charges, counsel fees, and other disbursements (Compensation
and Expenses) incurred in connection with the agency. Such
compensation is set forth in a separate schedule, a copy of
which, as amended from time to time, is attached hereto as
Exhibit B and incorporated herein by reference. If Fund has
not paid such Compensation and Expenses to DST within a
reasonable time, DST may, after written notice to Fund,
charge against any non-shareholder monies held under this
Agreement, the amount of any Compensation and Expenses for
which it shall be entitled to reimbursement under this
Agreement.
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B. Fund also agrees promptly to reimburse DST for all reasonable
reimbursable expenses or disbursements incurred by DST in
connection with the performance of services under this
Agreement including, but not limited to, expenses for postage,
express delivery services, freight charges, envelopes, checks,
drafts, forms (continuous or otherwise), specially requested
reports and statements, telephone calls, telegrams, stationery
supplies, counsel fees (incurred with prior permission of the
Fund), outside printing and mailing firms (including Output
Technologies SRI Group, Inc.), magnetic tapes, reels or
cartridges (if sent to a Fund or to third party at Fund's
request) and magnetic tape handling charges, off-site record
storage, media for storage of records (e.g., microfilm,
microfiche, optical platters, computer tapes), computer
equipment installed at Fund's request at Fund's or a third
party's premises, telecommunications equipment, telephone/
telecommunication lines between Fund and its agents, on one
hand, and DST on the other, proxy mailing, soliciting,
processing and/or tabulating costs, second-site backup
computer facility, transmission of statement data for remote
printing or processing, and NSCC transaction fees (as well as
any other expenses set forth on Exhibit C, as amended from
time to time, attached hereto and incorporated herein by
reference) to the extent any of the foregoing are paid or
incurred by DST. In addition, any other expenses incurred by
DST at the request or with the consent of Fund will be
promptly reimbursed by Fund. Fund agrees to pay postage
expenses at least one day in advance if so requested.
C. DST shall provide statements to Fund of the amounts owed to
DST by the Fund under this Agreement. Amounts due hereunder
shall be due and paid on or before the thirtieth; (30th)
calendar day after receipt of the statement therefor by Fund
(the "Due
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Date"). Fund is aware that its failure to pay all amounts in a
timely fashion so that they will be received by DST on or
before the Due Date will give rise to costs to DST not
contemplated by this Agreement, including but not limited to
carrying, processing and accounting charges. Accordingly,
subject to Section 6.D. hereof, in the event that any amounts
due hereunder are not received by DST by the Due Date, Fund
shall pay a late charge equal to the rate set forth in the fee
schedule times the amount overdue, times the number of days
from the Due Date up to and including the day on which
payment is received by DST divided by 365. The parties hereby
agree that such late charge represents a fair and reasonable
computation of the costs incurred by reason of late payment or
payment of amounts not properly due. Acceptance of such late
charge shall in no event constitute a waiver of Fund's or
DST's default or prevent the non-defaulting party from
exercising any other rights and remedies available to it.
D. In the event that any charges are disputed, Fund shall, on or
before the Due Date, pay all undisputed amounts due hereunder
and notify DST in writing of any disputed charges for
out-of-pocket expenses which it is disputing in good faith.
Payment for such disputed charges shall be due on or before
the close of the fifth (5th) business day after the day on
which DST provides to Fund documentation which an objective
observer would agree reasonably supports the disputed charges
(the "Revised Due Date"). Late charges shall not begin to
accrue as to charges disputed in good faith until the first
day after the Revised Due Date.
7. Operation of DST Systems.
In connection with the performance of its services under this
Agreement, DST is responsible for such items as:
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A. That entries in DST's records and in Fund's records on the
Systems created by DST accurately reflect the orders,
instructions, and other information received by DST from Fund,
Fund's principal manager, underwriter or distributor or Fund's
investment adviser, sponsor, custodian or administrator (each
a "Fund Service Provider"), broker-dealers and shareholders;
B. That shareholder lists, shareholder account verifications,
confirmations and other shareholder account information to be
produced from its records or data be available and accurately
reflect the data in Fund's records on the Systems;
C. The accurate and timely issuance of dividend and distribution
checks in accordance with instructions received from Fund and
the data in Fund's records on the Systems;
D. That redemption transactions and payments with respect to
shares of open-end funds and transfers with respect to
closed-end funds be effected timely, under normal
circumstances on the day of receipt, and accurately in
accordance with instructions received by DST from dealers,
shareholders, a Fund Service Provider or an Authorized Person
provided such instructions are in proper order as set forth
elsewhere in this Agreement and are consistent with the data
Fund's records on the Systems;
E. The deposit daily in Fund's appropriate special bank account
of all checks and payments received by DST from NSCC,
broker-dealers or shareholders for investment in shares of
open-end funds;
F. DST will use reasonable care in its processing and
interpretation of shareholder transactions. Gains and losses
resulting from "as of" transactions due to DST's bad faith,
willful misconduct, negligence or knowing violations of
applicable law, but not
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those due to non-negligent DST clerical errors or
misinterpretation of shareholder instructions, will be the
responsibility of DST. DST will maintain an annual, cumulative
record of such "as of" transactions for each Series, netting
gains and losses. If at the end of the calendar year the
balance in the record with respect to any Series is a gain of
a material amount, the applicable Series will write-off to
income an amount necessary such that the balance immediately
after the write-off is not a material amount. In the event the
balance in the accumulation record at the end of the calendar
year is a gain that is not of a material amount, this gain may
be carried forward to offset future losses. In the event the
balance in the record with respect to any Series is at the
end of the year a loss of a material amount, DST will promptly
pay such Series the amount of this loss necessary such that
the balance immediately after the payment is not a material
amount. A "material amount" is defined as a gain or loss in an
amount which equals or exceeds the lesser of (i) one full cent
($0.01) per share of a Series times the number of shares
outstanding for such Series, or (ii) one-half of one percent
of the value of a Series' total assets (or other such amounts
as may be adopted by applicable accounting or regulatory
authorities from time to time).
G. Notwithstanding anything in this Agreement to the contrary,
DST shall perform the services set forth in this Agreement,
including but not limited to the requiring of proper forms of
instructions, signatures and signature guarantees and any
necessary documents supporting the opening of shareholder
accounts (where required), transfers, redemptions and other
shareholder account transactions, in conformance with DST's
present procedures as set forth in its Legal Manual, Third
Party Check Procedures, Checkwriting Draft Procedures, and
Signature Guarantee Procedures with such
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changes or deviations therefrom as may be from time to time
required or approved by Fund, its investment adviser or
principal underwriter, or their or DST's counsel (the
"Procedures") and the rejection of orders or instructions not
in good order in accordance with the applicable prospectus or
the Procedures;
H. The maintenance of customary records in connection with its
agency, and particularly those records required to be
maintained pursuant to subparagraph (2) (iv) of paragraph (b)
of Rule 31a-1 under the Investment Company Act of 1940, as
amended, if any; and
I. The maintenance of a current, duplicate set of Fund's
essential records as of the close of business on the prior
business day at a secure separate location, in a form
available and usable forthwith in the event of any breakdown
or disaster disrupting its main operation.
8. Indemnification.
A. DST shall at all times use reasonable care, due diligence and
act in good faith in performing its duties under this
Agreement. DST shall provide its services as transfer agent in
accordance with Section 17A of the Exchange Act, and the rules
and regulations thereunder. In the absence of bad faith,
willful misconduct, knowing violations of applicable law
pertaining to the manner in which transfer agency services
are to be performed by DST (excluding any violation arising
directly or indirectly out of the actions of DST-unaffiliated
third parties), reckless disregard of the performance of its
duties, or negligence on its part, DST shall not be liable for
any action taken, suffered, or omitted by it or for any error
of judgment made by it in the performance of its duties under
this Agreement. For those activities or actions delineated in
the Procedures, DST shall be presumed to have used reasonable
care, due diligence and
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acted in good faith if it has acted in accordance with the
Procedures, copies of which have been provided or made
available to Fund, as amended from time to time with approval
of Fund counsel, or for any deviation therefrom approved by an
Authorized Person, Fund or Fund's or DST's counsel.
B. DST shall not be responsible for, and Fund shall indemnify and
hold DST harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and
liability which may be asserted against DST or for which DST
may be held to be liable, arising out of or attributable to:
(1) All actions of DST required to be taken by DST
pursuant to this Agreement, provided that DST has
acted in accordance with the standards specified in
Paragraph A;
(2) Fund's refusal or failure to comply with the terms of
this Agreement, Fund's negligence or willful
misconduct, or the breach of any representation or
warranty of Fund hereunder;
(3) DST's good faith reliance on or the carrying out of
any written or recorded oral instructions or requests
of an Authorized Person or DST's good faith reliance
on or use of information, data, records and documents
received from, or which have been prepared and/or
maintained by or on behalf of, a Fund Service
Provider;
(4) Defaults by dealers or shareowners with respect to
payment for share orders previously entered;
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(5) The offer or sale of Fund's shares in violation of
any requirement under federal securities laws or
regulations or the securities laws or regulations of
any state or in violation of any stop order or other
determination or ruling by any federal agency or
state with respect to the offer or sale of such
shares in such state (unless such violation results
from DST's failure to comply with written
instructions of Fund or of any officer of Fund that
no offers or sales be input into Fund's
securityholder records in or to residents of such
state);
(6) Fund's or its agents' and Authorized Persons'
omissions, errors and mistakes: (a) in the use of (i)
the Systems, (ii) the data center, computer and
related equipment used to access the Systems (the
"DST Facilities"), and (iii) control procedures in
the Systems, and (b) in the verification of output
and (c) in the remote input of data;
(7) Errors, inaccuracies and omissions in, or errors,
inaccuracies or omissions of DST arising out of or
resulting from such errors, inaccuracies and
omissions in, Fund's records, shareholder records and
other records, delivered to DST hereunder by Fund or
its prior agent(s) (but not including errors,
inaccuracies or omissions resulting from the
negligence or willful misconduct of DST);
(8) Actions or omissions to act by Fund or agents
designated by Fund (other than DST) with respect to
duties assumed thereby as provided for in Section
19.A hereof; and
(9) DST's performance of Exception Services except where
DST acted or omitted to act in bad faith, with
reckless disregard of its obligations or with gross
negligence.
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C. Except where DST is entitled to indemnification under Section
8.B. hereof, and subject to the provisions Section 7.F.
hereof, DST shall indemnify and hold Fund harmless from and
against any and all losses, damages, costs, charges, counsel
fees, payments, expenses and liability arising out of DST's
failure to comply with the terms of this Agreement or arising
out of or attributable to DST's negligence or willful
misconduct or material breach of any representation or
warranty of DST hereunder.
D. EXCEPT FOR VIOLATIONS OF SECTION 21, IN NO EVENT AND UNDER NO
CIRCUMSTANCES SHALL EITHER PARTY TO THIS AGREEMENT BE LIABLE
TO ANYONE, INCLUDING, WITHOUT LIMITATION TO THE OTHER PARTY,
FOR CONSEQUENTIAL DAMAGES FOR ANY ACT OR FAILURE TO ACT UNDER
ANY PROVISION OF THIS AGREEMENT EVEN IF ADVISED OF THE
POSSIBILITY THEREOF.
E. Promptly after receipt by an indemnified person of notice of
the commencement of any action, such indemnified person will,
if a claim in respect thereto is to be made against an
indemnifying party hereunder, notify the indemnifying party in
writing of the commencement thereof; but the failure so to
notify the indemnifying party will not relieve an indemnifying
party from any liability that it may have to any indemnified
person for contribution or otherwise under the indemnity
agreement contained herein except to the extent it is
prejudiced as a proximate result of such failure to timely
notify. In case any such action is brought against any
indemnified person and such indemnified person seeks or
intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to
the extent that it may wish, assume the defense thereof (in
its own name or in the name and on behalf of any
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indemnified party or both with counsel reasonably satisfactory
to such indemnified person); provided, however, if the
defendants in any such action include both the indemnified
person and an indemnifying party and the indemnified person
shall have reasonably concluded that there may be a conflict
between the positions of the indemnified person and an
indemnifying party in conducting the defense of any such
action or that there may be legal defenses available to it
and/or other indemnified persons which are inconsistent with
those available to an indemnifying party, the indemnified
person or indemnified persons shall have the right to select
one separate counsel (in addition to counsel provided by the
indemnifying party) to assume such legal defense and to
otherwise participate in the defense of such action on behalf
of such indemnified person or indemnified persons at such
indemnified party's sole expense. Upon receipt of notice from
an indemnifying party to such indemnified person of its
election so to assume the defense of such action and approval
by the indemnified person of counsel, which approval shall not
be unreasonably withheld (and any disapproval shall be
accompanied by a written statement of the reasons therefor),
the indemnifying party will not be liable to such indemnified
person hereunder for any legal or other expenses subsequently
incurred by such indemnified person in connection with the
defense thereof. An indemnifying party will not settle or
compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified
persons are actual or potential parties to such claim, action,
suit or proceeding) unless such settlement, compromise or
consent includes an unconditional release of each
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indemnified person from all liability arising out of such
claim, action, suit or proceeding. An indemnified party will
not, without the prior written consent of the indemnifying
party, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder. If it does so, it
waives its right to indemnification therefor.
9. Certain Covenants of DST and Fund.
A. All requisite steps will be taken by Fund from time to time
when and as necessary to register Fund's shares for sale in
all states in which Fund's shares shall at the time be offered
for sale and require registration. If at any time Fund
receives notice of any stop order or other proceeding in any
such state affecting such registration or the sale of Fund's
shares, or of any stop order or other proceeding under the
federal securities laws affecting the sale of Fund's shares,
Fund will give prompt notice thereof to DST.
B. DST hereby agrees to perform such transfer agency functions as
are set forth herein and establish and maintain facilities and
procedures reasonably acceptable to Fund for safekeeping of
check forms, and facsimile signature imprinting devices, if
any; and for the preparation or use, and for keeping account
of, such forms and devices, and to carry such insurance as it
considers adequate and reasonably available.
C. To the extent required by Section 31 of the Investment Company
Act of 1940, as amended, and Rules thereunder, DST agrees that
all shareholder- or Fund-related records maintained by DST
relating to the services performed by DST under this Agreement
are the property of Fund and will be preserved, and will, upon
receipt of
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payment of all sums due to DST in connection with DST's
performance under this Agreement, be surrendered promptly to
Fund on request.
D. DST agrees to furnish Fund semiannual reports of its financial
condition, consisting of a balance sheet, earnings statement
and any other readily and publicly available financial
information reasonably requested by Fund. The annual financial
statements will be certified by DST's certified public
accountants. DST agrees to provide such reports as are
produced by the TA2000 System respecting its services under
this Agreement to Fund's Board as the Fund Board may
reasonably request.
E. DST represents and agrees that it will use its reasonable
efforts to keep current on the trends of the investment
company industry relating to shareholder services and will use
its reasonable efforts to continue to modernize and improve.
F. DST will permit Fund and its authorized representatives to
make periodic inspections of its operations as such would
involve Fund upon reasonable prior notice and at reasonable
times during business hours.
G. DST agrees to use its reasonable efforts to provide in Kansas
City at Fund's expense two (2) man weeks of training for
Fund's personnel in connection with use and operation of the
Systems. All travel and reimbursable expenses incurred by
Fund's personnel in connection with and during training at
DST's Facility shall be borne by Fund. At Fund's option and
expense, DST also agrees to use its best efforts to provide an
additional two (2) man weeks of training at Fund's facility
for Fund's personnel in connection with the Systems.
Reasonable travel, per diem and reimbursable expenses incurred
by DST personnel in connection with and during training at
Fund's facility or in connection with the conversion shall be
borne by Fund.
20
H. Notwithstanding anything in this Agreement to the contrary,
DST's only warranty or covenant with respect to year 2000
compliance is that the TA2000 System will be year 2000
compliant during the term set forth in Section 20 of this
Agreement. As used in this Agreement "year 2000 compliant"
shall mean that the TA2000 System will perform in accordance
with the terms of this Agreement regardless of the century
with respect to which date data is encountered by the TA2000
System; provided, that (i) all date data received by DST for
use by the TA2000 System is accurate and in formats specified
by DST from time to time, (ii) all date data generated by the
TA2000 System is accepted by the recipient in formats provided
by DST from time to time, and (iii) DST shall not be obligated
to provide date data for interface functions such as screens,
reports or data transmission files in any format other than
that specified by DST from time to time. Notwithstanding the
foregoing, DST makes no representation or warranty as to the
ability of any hardware, firmware, software, products or
services provided to DST by any other party to manipulate or
to process date data, or as to the functionality of any DST
software (including without limitation the TA2000 System) in
circumstances where data received from any third party system
(including without limitation that of Fund and its Authorized
Persons, agents or customers) is invalid, incorrect or
otherwise corrupt.
10. Death, Resignation or Removal of Signing Officer.
Fund will file promptly with DST written notice of any change in the
officers authorized to sign written instructions or requests, together
with two certificates of the Secretary or Clerk bearing the specimen
signature of each newly authorized officer.
21
'
11. Future Amendments of Charter and Bylaws.
Fund will promptly file with DST copies of all material amendments to
its Articles of Incorporation or Declaration of Trust, as applicable,
or bylaws made after the date of this Agreement.
12. Instructions, Opinion of Counsel and Signatures.
At any time DST may apply to any Authorized Person to give instructions
to DST, and may with the prior approval of an Authorized Person consult
with legal counsel for Fund or its own legal counsel at the expense of
Fund, with respect to any matter arising in connection with the agency
and it will not be liable for any action taken or omitted by it in good
faith in reliance upon such instructions or upon the opinion of such
counsel. DST will be protected in acting upon any paper or document
reasonably believed by it to be genuine and to have been signed by an
Authorized Person and will not be held to have notice of any change of
authority of any person, until receipt of written notice thereof from
Fund.
13. Force Majeure and Disaster Recovery Plans.
A. DST SHALL NOT BE RESPONSIBLE OR LIABLE FOR ITS FAILURE OR
DELAY IN PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT
ARISING OUT OF OR CAUSED, DIRECTLY OR INDIRECTLY, BY
CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL, INCLUDING,
WITHOUT LIMITATION: ANY INTERRUPTION, LOSS OR MALFUNCTION OR
ANY UTILITY, TRANSPORTATION, COMPUTER (HARDWARE OR SOFTWARE)
OR COMMUNICATION SERVICE; INABILITY TO OBTAIN LABOR, MATERIAL,
EQUIPMENT OR TRANSPORTATION, OR A DELAY IN MAILS; GOVERNMENTAL
OR EXCHANGE ACTION, STATUTE,
22
ORDINANCE, RULINGS, REGULATIONS OR DIRECTION; WAR, STRIKE,
RIOT, EMERGENCY, CIVIL DISTURBANCE, TERRORISM, VANDALISM,
EXPLOSIONS, LABOR DISPUTES, FREEZES, FLOODS, FIRES, TORNADOS,
ACTS OF GOD OR PUBLIC ENEMY, REVOLUTIONS, OR INSURRECTION; OR
ANY OTHER CAUSE, CONTINGENCY, CIRCUMSTANCE OR DELAY NOT
SUBJECT TO DST'S CONTROL WHICH PREVENTS OR HINDERS DST'S
PERFORMANCE HEREUNDER, AND PROVIDED THAT DST ACTS REASONABLY
UNDER THE CIRCUMSTANCES TO WORK TOWARD THE ELIMINATION, AS
SOON AS AND TO THE EXTENT REASONABLY PRACTICABLE, OF THE
ADVERSE EFFECTS OF THE SPECIFIC OCCURRENCE OR EVENT.
B. DST currently maintains an agreement with a third party
whereby DST is to be permitted to use on a "shared use" basis
a "hot site" (the "Recovery Facility") maintained by such
party in event of a disaster rendering the DST Facilities
inoperable. DST has developed and is continually revising a
business contingency plan (the "Business Contingency Plan")
detailing which, how, when, and by whom data maintained by DST
at the DST Facilities will be installed and operated at the
Recovery Facility. Provided Fund is paying its pro rata
portion of the charge therefor, DST would, in event of a
disaster rendering the DST Facilities inoperable, use
reasonable efforts to convert the Systems containing the
designated Fund data to the computers at the Recovery Facility
in accordance with the then current Business Contingency Plan.
23
C. DST also currently maintains, separate from the area in which
the operations which provide the services to Fund hereunder
are located, a Crisis Management Center consisting of phones,
computers and the other equipment necessary to operate a full
service transfer agency business in the event one of its
operations areas is rendered inoperable. The transfer of
operations to other operating areas or to the Crisis
Management Center is also covered in DST's Business
Contingency Plan.
14. Certification of Documents.
The required copy of the Articles of Incorporation or Declaration of
Trust of Fund and copies of all amendments thereto will be certified by
the Secretary of State (or other appropriate official) of the State of
Incorporation, and if such Articles of Incorporation or Declaration of
Trust and amendments are required by law to be also filed with a
county, city or other officer of an official body, a certificate of
such filing will appear on the certified copy submitted to DST. A copy
of the order or consent of each governmental or regulatory authority
required by law to the issuance of the stock will be certified by the
Secretary or Clerk of such governmental or regulatory authority, under
proper seal of such authority. The copy of the Bylaws and copies of all
amendments thereto, and copies of resolutions of the Board of Directors
or Trustees of Fund, as applicable, will be certified by the Secretary
or Clerk or an Assistant Secretary or Clerk of Fund under Fund's seal.
15. Records.
DST will maintain customary records in connection with its agency, and
particularly will maintain those records required to be maintained
pursuant to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1 under
the Investment Company Act of 1940, as amended, if any.
24
16. Disposition of Books and Records.
DST may send periodically to Fund, or to where designated by the
Secretary or an Assistant Secretary of Fund, all books, documents, and
records no longer deemed needed for current purposes, upon the
understanding that such books, documents, and records will be
maintained by Fund under and in accordance with the requirements of
Section 17Ad-7 adopted under the Securities Exchange Act of 1934. Such
materials will not be destroyed by Fund without the consent of DST
(which consent will not be unreasonably withheld), but will be safely
stored for possible future reference and maintained, preserved and made
available to DST and the U.S. Securities and Exchange Commission in
accordance with the requirement of Sections 17Ad-7 and 17
C.F.R. Section 240.17Ad-7.
17. Provisions Relating to DST as Transfer Agent.
A. DST will supply a shareholder's list to Fund for its annual
meeting upon receiving a request from an officer of Fund. If
will also supply lists at such other times as may be requested
by an officer of Fund, subject to payment of applicable
charges therefor.
B. Upon receipt of written instructions of an officer of Fund,
DST will address and mail notices to shareholders.
C. In case of any request or demand for the inspection of the
stock books of Fund or any other books in the possession of
DST, DST will endeavor to notify Fund and to secure
instructions as to permitting or refusing such inspection. DST
reserves the right, however, to exhibit the stock books or
other books to any person in case it is advised by its counsel
that it may be held responsible for the failure to exhibit the
stock books or other books to such person.
25
18. Provisions Relating to Dividend Disbursing Agency.
A. DST will, at the expense of Fund, provide a special form of
check containing the imprint of any device or other matter
desired by Fund. Said checks must, however, be of a form and
size convenient for use by DST.
B. If Fund desires to include additional printed matter,
financial statements, etc., with the dividend checks, the same
will be furnished to DST within a reasonable time prior to the
date of mailing of the dividend checks, at the expense of
Fund.
C. If Fund desires its distributions mailed in any special form
of envelopes, sufficient supply of the same will be furnished
to DST, but the size and form of said envelopes will be
subject to the approval of DST. If stamped envelopes are used,
they must be furnished by Fund; or if postage stamps are to be
affixed to the envelopes, the stamps or the cash necessary for
such stamps must be furnished by Fund in advance of such
mailing.
D. DST is hereby authorized to open and to maintain at a Bank
acceptable to Fund one or more non-interest bearing deposit
accounts as Agent for Fund, into which the funds for payment
of dividends, distributions, redemptions or other
disbursements provided for hereunder will be deposited, and
against which checks will be drawn.
E. DST is authorized and directed to stop payment of checks
theretofore issued hereunder, but not presented for payment,
when the payees thereof allege either that they have not
received the checks or that such checks have been mislaid,
lost, stolen, destroyed of through no fault of theirs, are
otherwise beyond their control, and cannot be produced by them
for presentation and collection, and, to issue and deliver
duplicate checks in replacement thereof.
26
19. Assumption of Duties By Fund or Agents Designated By Fund.
A. Fund or its designated agents other than DST may assume
certain duties and responsibilities of DST or those services
of Transfer Agent and Dividend Disbursement Agent as those
terms are referred to in Section 4.D. of this Agreement
including but not limited to answering and responding to
telephone inquiries from shareholders and brokers, accepting
shareholder and broker instructions (either or both oral and
written) and transmitting orders based on such instructions to
DST, preparing and mailing confirmations, obtaining certified
TIN numbers, classifying the status of shareholders and
shareholder accounts under applicable tax law, establishing
shareholder accounts on the Systems and assigning social codes
and Taxpayer Identification Number codes thereof, and
disbursing monies of Fund, said assumption to be embodied in
writing to be signed by both parties.
B. To the extent Fund or its agent or affiliate assumes such
duties and responsibilities, DST shall be relieved from all
responsibility and liability therefor and is hereby
indemnified and held harmless against any liability therefrom
and in the same manner and degree as provided for in Section 8
hereof.
C. DST may, subject to the written consent of the Fund, appoint
other parties qualified to perform transfer agency services
("sub-transfer agents") to carry out some or all of its
responsibilities under this Agreement; provided, however,
that, unless the sub-transfer agent is appointed at the
direction of the Fund, a sub-transfer agent shall be the agent
of DST and not the agent of the Fund, and DST shall be fully
responsible for the acts of a sub-transfer agent and shall not
be relieved of any of its responsibilities hereunder by the
appointment of a sub-transfer agent.
27
20. Termination of Agreement.
A. This Agreement shall be in effect from the date set forth on
the first page (the "Effective Date") through May 31, 2004
("Initial Term") and thereafter may be terminated by either
party upon receipt of six (6) months written notice from the
other party, provided, however, that me effective date of any
termination shall not occur during the period from December 15
through March 30 of any year to avoid adversely impacting year
end.
B. Each party, in addition to any other rights and remedies,
shall have me right to terminate this Agreement forthwith upon
the occurrence at any time of any of the following events with
respects to the other party:
(1) Any interruption or cessation of operations by the
other party or its assigns which materially
interferes with the business operation of the first
party;
(2) The bankruptcy of the other party or its assigns or
the appointment of a receiver for the other party or
its assigns;
(3) Failure by the other party or its assigns to perform
its duties in accordance with the Agreement, which
failure adversely affects the business operations of
the first party and which failure continues for
thirty (30) days after receipt of written notice from
the first party; and
(4) The acquisition of a controlling interest in DST
Systems, Inc. or its assigns, by any broker, dealer,
investment adviser or investment company except as
may presently exist.
C. The Fund, in addition to any other rights and remedies, shall
have the right at any time to terminate this Agreement
forthwith upon the occurrence of an assignment (as
28
that term is defined in the Investment Company Act of 1940, as
amended) of the Fund's investment advisory contract to an
entity who is not an "affiliated person" (as that term is
defined in the Investment Company Act of 1940, as amended) of
the Fund, the assigning entity or any other entity in the ING
Pilgrim Family.
D. In the event of any termination, Fund will promptly pay DST
all amounts due and outstanding to DST hereunder. In addition,
if this Agreement is terminated by Fund during the Initial
Term for any reason other than those set forth in Section
20.B. or 20.C hereof, then Fund shall pay to DST on the last
business day of each of the next three (3) whole or partial
calendar months (commencing with the last day of the month in
which termination actually occurs if termination does not
occur on the last business day of the month, and with the last
business day of the immediately following month if termination
actually occurs on the last business day of a month) an amount
equal to the average monthly fees, exclusive of the
out-of-pocket expenses, paid by or on behalf of each
terminating party under the affected Agreement during the six
(6) calendar months preceding the month during which the
termination notice was received by DST.
E. If the termination date set forth in the original termination
notice is extended by any terminating party (which extension
shall require the agreement of DST), then the fees and charges
payable by the terminating party under this Agreement shall
increase by twenty percent (20%) during the period commencing
with the original termination date set forth in the initial
termination notice and concluding with the day upon which
termination actually occurs. These provisions are in addition
to any other contractual
29
provision or compensation agreements that may be in existence
at the time of an actual transfer.
F. DST shall, upon termination of this Agreement and receipt of
payment of all outstanding bills and invoices, deliver to the
successor so specified or appointed, or to Fund, at DST's
office, all records then held by DST hereunder, all funds and
other properties of Fund deposited with or held by DST
hereunder. In the event no written order designating a
successor (which may be Fund) shall have been delivered to DST
on or before the date when such termination shall become
effective, then DST shall deliver the records, funds and
properties of Fund to a bank or trust company at the selection
of DST or if a satisfactory successor cannot be obtained, DST
may deliver the assets to Fund, at DST's offices or as
otherwise agreed to between the parties in any event upon
written notice to Fund. Thereafter Fund or such bank or trust
company shall be the successor under this Agreement and shall
be entitled to reasonable compensation for its services.
Notwithstanding the foregoing requirement as to delivery upon
termination of this Agreement, DST may make any other delivery
of the funds and property of Fund which shall be permitted by
the Investment Company Act of 1940, as amended, and Fund's
Articles of Incorporation, Declaration of Trust, and/or Bylaws
then in effect.
G. In the event of termination, DST shall provide reasonable
assistance to Fund and its designated successor transfer agent
and other information relating to its services provided
hereunder (subject to the recompense of DST for such
assistance at its standard rates and fees for personnel then
in effect at that time); provided, however, as used herein
"reasonable assistance" and "other information" shall not
include assisting
30
any new service or system provider to modify, alter, enhance,
or improve its system or to improve, enhance, or alter its
current, or to provide any new, functionality or to require
DST to disclose any DST Protected Information, as defined in
Section 21 of this Agreement, or any information which is
otherwise confidential to DST. DST's assistance shall be
billed at its then current rates, DST's present rates, which
are subject to annual increase as DST's labor costs for such
personnel increase, are as is set forth in Exhibit B to this
Agreement.
H. Nothing in this Agreement is intended to, nor does it, compel
DST to disclose non-public information concerning its
operations or operating systems or to provide programming
assistance or information which might tend to improve,
enhance, or add functionality to anyone else's operating
systems.
21. Confidentiality.
A. DST agrees that, except as otherwise required by law, as
provided in the last sentence of Section 17. C. hereof, as
agreed to by the Fund or the Fund's Authorized Persons or as
otherwise directed by shareholders of the Fund or their
representatives, DST will keep confidential all records of and
information in its possession relating to Fund or its
shareholders or shareholder accounts (collectively "Fund
Protected Information") and will not disclose the same to any
person except at the request or with the consent of Fund. DST
represents that it has in place and shall maintain physical,
electronic, and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to
prevent unauthorized access to or use of records and
information related to, Fund Protected Information as and to
the extent required under applicable law, and DST warrants
that prior to disclosing such information to any third-party
31
(other than as permitted in this Agreement or as directed by
Fund), DST shall require such third-party to implement similar
procedural safeguards designed to meet the objectives set
forth in this paragraph.
B. Fund agrees to keep confidential all provisions, terms and
conditions of this Agreement, all financial statements and
other financial records (other than statements and records
relating solely to Fund's business dealings with DST) and all
manuals, systems and other technical information and data, not
publicly disclosed, relating to DST's operations and programs
furnished to it by DST pursuant to this Agreement and will not
disclose the same to any person except at the request or with
the consent of DST. Notwithstanding the foregoing, Fund shall
be permitted, subject only to the requirement of five (5) days
prior written notice to DST, to make such disclosures as may
be required by applicable law or regulatory process
(including, but not limited to, required filings with the SEC,
it being acknowledged that the filing of this Agreement is not
required under the Investment Company Act of 1940).
C. Fund acknowledges that DST has proprietary rights in and to me
computerized data processing recordkeeping system used by DST
to perform services hereunder including but not limited to the
maintenance of shareholder accounts and records, processing of
related information and generation of output, the Systems,
including without limitation any changes or modifications of
the Systems and any other DST programs, data bases, supporting
documentation, or procedures (collectively "DST Protected
Information which Fund's access to the Systems or software or
DST Facilities may permit Fund or its employees or agents to
become aware of or to access and that the DST Protected
Information constitutes confidential material and trade
32
secrets of DST. Fund agrees to maintain the confidentiality of
the DST Protected information.
D. Fund acknowledges that any unauthorized use, misuse,
disclosure or taking of DST Protected Information which is
confidential as provided by law, or which is a trade secret,
residing or existing internal or external to a computer,
computer system, or computer network, or the knowing and
unauthorized accessing or causing to be accessed of any
computer, computer system, of computer network, may be subject
to civil liabilities and criminal penalties under applicable
state law. Fund will advise all of its employees and agents
who have access to any DST Protected Information or to any
computer equipment capable of accessing DST hardware or
software of the foregoing.
E. Each party acknowledges that disclosure of the Protected
Information of the other party may give rise to an
irreparable injury to the other party inadequately compensable
in damages. Accordingly, either party may seek (without the
posting of any bond or other security) injunctive relief
against me breach of the foregoing undertaking of
confidentiality and nondisclosure, in addition to any other
legal remedies which may be available, and each party consents
to the obtaining of such injunctive relief. All of the
undertaking and obligations relating to confidentiality and
nondisclosure, whether contained in this Section or elsewhere
in this Agreement shall survive the termination or expiration
of this Agreement for a period of ten (10) years.
22. Changes and Modifications.
A. During the term of this Agreement DST will use on behalf of
Fund without additional cost all modifications, enhancements,
or changes which DST may make to the Systems
33
in the normal course of its business and which are applicable
to functions and features offered by Fund, unless
substantially all DST clients are charged separately for such
modifications, enhancements or changes, including, without
limitation, substantial system revisions or modifications
necessitated by changes in existing laws, rules or
regulations. Fund agrees to pay DST promptly for modifications
and improvements which are charged for separately at the rate
provided for in DST's standard pricing schedule which shall be
identical for substantially all clients, if a standard pricing
schedule shall exist. If there is no standard pricing
schedule, the parties shall mutually agree upon the rates to
be charged.
B. DST shall have the right, at any time and from time to time,
to alter and modify any systems, programs, procedures or
facilities used or employed in performing its duties and
obligations hereunder; provided that Fund will be notified as
promptly as possible prior to implementation of such
alterations and modifications and that no such alteration or
modification or deletion shall materially adversely change or
affect the operations and procedures of Fund in using or
employing the Systems or DST Facilities hereunder or the
reports to be generated by such system and facilities
hereunder, unless Fund is given thirty (30) days prior notice
to allow Fund to change its procedures and DST provides Fund
with revised operating procedures and controls.
C. All enhancements, improvements, changes, modifications or new
features added to the Systems however developed or paid for
shall be, and shall remain, the confidential and exclusive
property of, and proprietary to, XXX.
00
00. Subcontractors.
Nothing herein shall impose any duty upon DST in connection with or
make DST liable for the actions or omissions to act of unaffiliated
third parties such as, by way of example and not limitation, the banks
at which me deposit accounts are maintained, The National Securities
Clearing Corporation, airborne services, the U.S. mails and
telecommunication companies, provided, if DST selected such company,
DST shall have exercised due care in selecting the same.
24. Limitations on Liability.
A. If Fund is comprised of more than one Series, each Series
shall be regarded for all purposes hereunder as a separate
party apart from each other Series. Unless the context
otherwise requires, with respect to every transaction covered
by this Agreement, every reference herein to Fund shall be
deemed to relate solely to the particular Series to which such
transaction relates. Under no circumstances shall the rights,
obligations or remedies with respect to a particular Series
constitute a right, obligation or remedy applicable to any
other Series. The use of this single document to memorialize
the separate agreement of each Series is understood to be for
clerical convenience only and shall not constitute any basis
for joining the Series for any reason.
B. Notice is hereby given that a copy of Fund's Articles of
Incorporation or Trust Agreement (as applicable) and all
amendments thereto is on file with the Secretary of State of
the state of its organization; that this Agreement has been
executed on behalf of Fund by the undersigned duly authorized
representative of Fund in his/her capacity as such and not
individually; and that the obligations of this Agreement shall
only be
35
binding upon the assets and property of Fund and shall not be
binding upon any director, trustee, officer or shareholder of
Fund individually.
25. Notices.
All notices, consents, requests, instructions, approvals and other
communications provided for herein shall be validly given, made or
served if in writing and delivered personally, sent by mail, registered
or certified, return receipt requested, postage prepaid, by telegram or
by facsimile transmission:
If to the Fund:
To the name of the appropriate Fund
00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attn: Compliance Officer
And if to DST:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attn: Xxxxxxxx Xxxxx, Group Vice President
With a copy of non-operational notices to:
DST Systems, Inc.
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Telephone No: (000) 000-0000
Telecopier No.: (000) 000-0000
Attn: Legal Department
or to such other address as DST or Fund may from time to time designate
in writing delivered as provided above.
36
26. Miscellaneous.
A. This Agreement is executed and delivered in the State of
Missouri and shall be construed according to, and the rights
and liabilities of the parties hereto shall be governed by,
the laws of the State of Missouri, excluding that body of law
applicable to choice of law.
B. All terms and provisions of this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted
assigns.
C. The representations and warranties, all indemnifications and
any limitations on liability set forth in this Agreement are
intended to and shall continue after and survive the
expiration, termination or cancellation of this Agreement
until any statute of limitations applicable to the matter at
issues shall have expired.
D. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized
and executed each party hereto; provided, however, that upon
30 days prior written notice to DST, Fund shall have the right
to add a new Series to or delete an existing Series from
Exhibit A hereto in accordance with the terms and conditions
of Section 4. F. of this Agreement.
E. The captions in this Agreement are included for convenience of
reference only, and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect.
F. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
37
G. If any part, term or provision of this Agreement is by the
courts held to be illegal, in conflict with any law or
otherwise invalid, the remaining portion or portions shall be
considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as
if this Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
H. This Agreement may not be assigned any party hereto without
prior written consent of the other parties.
I. Neither the execution nor performance of this Agreement shall
be deemed to create a partnership or joint venture by and
between Fund and DST. It is understood and agreed that all
services performed hereunder by DST shall be as an independent
contractor and not as an employee of Fund. This Agreement is
between DST and Fund and neither this Agreement nor the
performance of services under it shall create any rights in
any third parties. There are no third party beneficiaries
hereto.
J. Except as specifically provided herein, this Agreement does
not in any way affect any other agreements entered into among
the parties hereto and any actions taken or omitted by any
party hereunder shall not affect any rights or obligations of
any other party hereunder.
K. The failure of either party to insist upon the performance of
any terms or conditions of this Agreement or to enforce any
rights resulting from any breach of any of the terms or
conditions of this Agreement, including the payment of
damages, shall not be construed as a continuing or permanent
waiver of any such terms, conditions, rights or privileges,
but the same shall continue and remain in full force and
effect as if no such forbearance or waiver had occurred.
38
L. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement, draft or
agreement or proposal with respect to the subject matter
hereof, whether oral or written.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers, to be effective as of the
day and year first above written.
DST SYSTEMS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: VP/Chief Financial Officer
AETNA VARIABLE FUND,
d/b/a AETNA GROWTH AND INCOME VP
AETNA VARIABLE ENCORE FUND,
d/b/a AETNA MONEY MARKET VP
AETNA INCOME SHARES,
d/b/a AETNA BOND VP
AETNA BALANCED VP, INC.
AETNA GET FUND
AETNA GENERATION PORTFOLIOS, INC.
AETNA VARIABLE PORTFOLIOS, INC.
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: President
Aetna Variable TA Agreement Cl(082701)
39
ING GET FUND
DST Systems, Inc.
000 Xxxx 00xx Xx.
0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
June 26, 2002
Ladies and Gentlemen:
Pursuant to the Agency Agreement dated July 7, 2001, and amended April
3, 2002, between the Funds (as defined in the Agreement), including ING GET
Fund, and DST Systems, Inc. (the "Agreement"), we hereby notify you of our
intention to retain you as Transfer Agent and Dividend Disbursing Agent to
render such services to ING GET Fund - Series V and Series W, two newly
established series of ING GET Fund, upon all of the terms and conditions set
forth in the Agreement. Upon your acceptance, the Agreement has been modified to
give effect to the foregoing by adding "ING GET Fund - Series U" and "ING GET
Fund - Series V" to Exhibit A of the Agreement. The Amended Exhibit A is
attached hereto.
Please signify your acceptance to act as Transfer Agent and Dividend
Disbursing Agent under the Agreement with respect to ING GET Fund - Series U and
ING GET Fund - Series V by signing below.
Very sincerely,
/s/ Xxxxxx X. Naka
------------------------
Xxxxxx X. Naka
Senior Vice President
ING GET Fund
ACCEPTED AND AGREED TO:
DST Systems, Inc.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: XXXX XXXXXXX
Title: Director & OPS, Duly Authorized
0000 X. Xxxxxxxxxx Xxxxx Xx. Tel: 000-000-0000 ING GET Fund
Xxxxxxxxxx, XX 00000-0000 Fax: 000-000-0000
xxx.xxxxxxxx.xxx
AMENDED EXHIBIT A
WITH RESPECT TO THE
AGENCY AGREEMENT
DATED JULY 7, 2001
BETWEEN
THE FUNDS
AND
DST SYSTEMS, INC.
EFFECTIVE AS OF JUNE 26, 2002
TYPE OF STATE OF TAXPAYER
TAXPAYER/FUND NAME ORGANIZATION ORGANIZATION X.X.XX.
------------------ ------------ ------------ -------
ING VP BALANCED PORTFOLIO, INC. Corporation Maryland 00-0000000
ING GENERATION PORTFOLIOS, INC. Corporation Maryland
ING VP Ascent Portfolio 00-0000000
ING VP Crossroads Portfolio 00-0000000
ING VP Legacy Portfolio 00-0000000
ING GET FUNDS Business Trust Massachusetts
ING GET Fund - Series D 00-0000000
ING GET Fund - Series E 00-0000000
ING GET Fund - Series G 00-0000000
ING GET Fund - Series H 00-0000000
ING GET Fund - Series I 00-0000000
ING GET Fund - Series J 00-0000000
ING GET Fund - Series K 00-0000000
ING GET Fund - Series L 00-0000000
ING GET Fund - Series M 00-0000000
ING GET Fund - Series N 00-0000000
ING GET Fund - Series P 00-0000000
ING GET Fund - Series Q 00-0000000
ING GET Fund - Series R 00-0000000
ING GET Fund - Series S 00-0000000
ING GET Fund - Series T 00-0000000
ING GET Fund - Series U 00-0000000
ING GET Fund - Series V 00-0000000
ING XX XXXX PORTFOLIO Business Trust Massachusetts 00-0000000
ING VP MONEY MARKET FUND Business Trust Massachusetts
ING VP Money Market Portfolio 00-0000000
ING VARIABLE FUNDS Business Trust Massachusetts
ING VP Growth and Income Portfolio 00-0000000
-1-
TYPE OF STATE OF TAXPAYER
TAXPAYER/FUND NAME ORGANIZATION ORGANIZATION X.X.XX.
------------------ ------------ ------------ -------
ING VARIABLE PORTFOLIOS, INC. Corporation Maryland
ING VP Growth Portfolio 00-0000000
ING VP International Equity Portfolio 00-0000000
ING VP Small Company Portfolio 00-0000000
ING VP Value Opportunity Portfolio 00-0000000
ING VP Technology Portfolio 00-0000000
ING VP Index Plus LargeCap Portfolio 00-0000000
ING VP Index Plus MidCap Portfolio 00-0000000
ING VP Index Plus SmallCap Portfolio 00-0000000
-2-
