EXHIBIT (g)(2)
CUSTODIAN SERVICE AND MONITORING AGREEMENT
THIS AGREEMENT made as of the 30th day of April, 2003 by and
among ING EQUITY TRUST ("Fund"), MBIA INSURANCE CORPORATION ("MBIA") and THE
BANK OF NEW YORK ("BNY").
WHEREAS, the Fund has established one or more series of the
Fund, each to be called a ING Principal Protection Fund (each a "Series") and
will continue to establish new Series of the Fund in the future, with an
obligation by the Fund, on behalf of each Series, that on a date certain (the
"Guarantee Maturity Date"), each shareholder of such Series will be entitled to
redeem each of his or her shares for an amount no less than the Guarantee per
Share, the calculation of which is described in the Fund's Registration
Statement ("Repayment Obligation"); and
WHEREAS, the Fund has entered into a Financial Guaranty
Agreement with MBIA (the "Financial Guaranty Agreement") whereby MBIA will issue
a policy to support the Repayment Obligation of each Series ("Policy"); and
WHEREAS, Schedule A contains a list of each Series currently
existing to which this Agreement applies; and
WHEREAS, such Schedule A may be amended from time to time by
mutual written agreement of the parties hereto to include additional series as
provided for in the Financial Guaranty Agreement, whereupon such series shall
become a Series hereunder;
WHEREAS, in connection therewith, the Fund intends to open
custody accounts with BNY under the terms of the Custodian Agreement (the
"Custodian Agreement") between the Fund and BNY on behalf of each Series, to
hold such Series' portfolio investments; and
WHEREAS, under the terms of the Financial Guaranty Agreement,
in consideration of MBIA's issuing the Policy in respect of a Series, the Fund,
on behalf of such Series, has agreed to a particular investment strategy and to
provide an arrangement whereby trades executed for such Series through the
Guarantee Maturity Date for such Series will be monitored for conformity with
certain guidelines; and
WHEREAS, the Fund and MBIA wish for BNY to provide investment
monitoring services in respect of each Series, and BNY is willing to perform
such services upon the following terms and conditions; and
WHEREAS, the Fund and MBIA wish for BNY to provide trade
execution services in respect of each Series, and BNY is willing to perform such
services upon the following terms and conditions.
NOW THEREFORE, in consideration of the premises and other good
and valuable consideration the parties hereto agree to the following:
1. Construction.
Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the plural
and the part the whole and "or" has the inclusive meaning sometimes represented
by the phrase "and/or." The words "hereof," "herein," "hereunder" and similar
terms in this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. The section and other headings contained
in this Agreement are for reference purposes only and shall not control or
affect the construction of this Agreement or the interpretation thereof in any
respect. Section, subsection, schedule; exhibit and attachment references are to
this Agreement unless otherwise specified.
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2. Custody and Monitoring Services.
The Fund, on behalf of each Series, will open with BNY one or
more custody account(s) designated "Series" (such designated custody account(s)
hereinafter referred to as "Series Account"). The Series Account will contain
the appropriate designation in its title and will be operated subject to the
terms of the Custodian Agreement between BNY and the Fund. BNY will monitor the
assets delivered to each Series Account for conformity with the guidelines set
forth in Schedule B attached hereto entitled Conforming Assets Guidelines (the
"Guidelines"). For purposes of this Agreement, BNY will only be responsible for
performing conforming assets tests on assets that are traded through the Series
Accounts and shall not be responsible for monitoring the continuing compliance
with the Guidelines of assets held in the Series Accounts. In order to carry out
the conforming assets tests, BNY will rely on the trade information that BNY
receives from the Fund on behalf of each Series and from broker confirmations
tendered by brokers to BNY through The Depository Trust Company's Institutional
Delivery Confirmation System ("DTC ID"). Such trade information must be
complete, properly formatted and provided to BNY in a timely manner. BNY shall
perform the conforming assets tests with respect to each asset added to each
Series Account promptly after receipt of the related trade information and in
any event within one Business Day (defined as a day upon which the New York
Stock Exchange is open for trading and is not a Saturday or Sunday, and is
neither a legal holiday nor a day on which banking institutions are generally
authorized or obligated by law or regulation to close) of such receipt by BNY.
If by applying the conforming assets tests to the Series Accounts in respect of
each Series an instance of noncompliance with the Guidelines is noted, BNY will
notify MBIA and the Fund promptly of such noncompliance in writing via facsimile
transmission. Once BNY has notified the Fund and
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MBIA as to the existence of noncompliance with respect to a Series, BNY shall
have no further obligation or duty to the Fund, such Series or MBIA to monitor
the trade with respect to such Series, or to report its cure.
3. Notification of Event of Default/Trade Execution/Cure
Notice/Obligation to Reject Trades.
If MBIA notifies BNY, by giving a written notice to BNY, with
a copy to the Fund, substantially in the format of Exhibit 1 hereto, that an
Event of Default under the Financial Guaranty Agreement has occurred with
respect to a Series and remains uncured ("Event of Default Notice"), BNY will
promptly confirm receipt of such notice, via phone contact and facsimile to the
Fund.
After or concurrently with BNY's receipt of an Event of
Default Notice and until the end of the related DK Period (as defined below),
MBIA shall be entitled to deliver to BNY (with a copy to the Fund) trade
instructions in the format of Attachment 1 to Exhibit 1 (for manual trade
instructions) or in the format of Attachment 2 to Exhibit 1 (for electronic
instructions) with respect to the Series Accounts in respect of a Series or in
respect of all Series as set forth in the Event of Default Notice. MBIA shall
deliver to BNY, with a copy to the Fund, a written notice of the cure of such
default, substantially in the format of Exhibit 2 hereto, promptly upon the
occurrence of such cure (the "Cure Notice").
From 12:01 a.m. eastern time on the Business Day immediately
following the day upon which BNY receives an Event of Default Notice from MBIA
until 12:01 a.m. eastern time on the Business Day immediately following the day
upon which BNY receives a Cure Notice from MBIA (a "DK Period"), BNY shall
reject and not act upon any trade instructions issued
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directly by the Fund (or its investment adviser) for the Series Accounts in
respect of a Series or in respect of all Series as set forth in the Event of
Default Notice. With respect to the Series Accounts, BNY shall, upon the
termination of a DK Period, revert to its normal method of accepting trade
instructions from the Fund (or its investment adviser) as governed by the
Custodian Agreement. Nothing herein shall be construed as authorizing BNY to
reject for settlement securities transactions for which trade instructions were
issued prior to 12:01 am. eastern time on the Business Day immediately following
the day on which BNY receives an Event of Default Notice.
From the time BNY receives an Event of Default Notice through
the end of the related DK Period, BNY is irrevocably authorized and instructed
(i) to act upon any and all trade instructions delivered by MBIA and (ii) to
execute the transactions set forth in such instructions through a broker or
dealer designated in writing by MBIA for the Series Accounts in respect of a
Series or in respect of all Series as indicated in such Event of Default Notice.
BNY will promptly notify the Fund, with a copy to MBIA, of trades executed as a
result of instructions received by MBIA. Such notification will be made via
transmission of a trade execution file to the extent possible (substantially in
the format of Exhibit 5), by close of business on the date such trades are
executed.
4. Delivery of Documents.
The Fund and MBIA will promptly furnish to BNY such copies,
properly certified or authenticated, of documents and other related information
that BNY may reasonably request or require to properly discharge its duties
herein.
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5. Fees and Expenses.
(a) As compensation for the services rendered to the Fund
and MBIA pursuant to this Agreement, the Fund, on behalf of each Series, shall
pay BNY monthly fees determined as set forth in Schedule A hereto. Such fees are
to be billed monthly and shall be due and payable upon receipt of the invoice.
The Fund and BNY may agree, from time to time, to a change to the fees set forth
in Schedule A. Upon any termination of the provision of services under this
Agreement before the end of any month, the fee for the part of the month before
such termination shall be prorated according to the proportion which such part
bears to the full monthly period and shall be payable upon the date of such
termination.
(b) The Fund may request additional services, additional
processing, or special reports, with such specifications and requirements
documentation as may be reasonably required by the Fund or by BNY. If BNY elects
to provide such services or arrange for their provision, it shall be entitled to
additional fees and expenses at its customary rates and charges.
(c) All fees, out-of-pocket expenses, or additional
charges of BNY shall be billed on a monthly basis and shall be due and payable
by the Fund, on behalf of each Series, upon receipt of the invoice.
(d) BNY will render, after the close of each month in
which services have been furnished, a statement reflecting all of the charges
for such month. Charges remaining unpaid thirty (30) days after receipt of such
statement (with the exception of specific amounts which may be contested in good
faith by the Fund) shall bear interest in finance charges equivalent to BNY's
Prime Rate as announced from time to time plus two (2) percent per annum and all
costs and expenses of effecting collection of any such sums, including
reasonable attorneys' fees, shall be paid by the Fund, on behalf of each Series,
to BNY.
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(e) In the event that the Fund, on behalf of a Series, is
more than sixty (60) days delinquent in its payments of monthly xxxxxxxx in
connection with this Agreement (with the exception of specific amounts which may
be contested in good faith by the Fund), this Agreement may be terminated with
respect to such Series upon sixty (60) days' written notice to the Fund and MBIA
by BNY. The Fund must notify BNY in writing of any contested amounts, with a
copy to MBIA, within thirty (30) days of receipt of a billing for such amounts.
Disputed amounts are not due and payable while they are being investigated. MBIA
reserves the right to pay the delinquent amounts thereby eliminating BNY's right
to terminate the Agreement under this subsection.
6. Limitation of Liability and Indemnification
(a) In undertaking the performance of its obligations
hereunder, BNY shall not be liable for any loss, damage or expense suffered by
the Fund, any Series or MBIA in connection with the matters to which this
Agreement relates or the services provided hereunder except for general damages
solely caused by or resulting from willful misfeasance, bad faith or negligence
on the part of BNY, its officers, employees or agents, in the performance of its
or their duties under this Agreement. "General Damages" means only those damages
as directly and necessarily result from such act or omission without reference
to any special conditions or circumstances of the Fund, any Series or MBIA. In
no event shall BNY be liable for any indirect, special or consequential losses
or damages of any kind whatsoever (including but not limited to lost profits),
even if BNY has been advised of the likelihood of such losses or damages and
regardless of the form of action through which any such losses or damages may be
claimed.
(b) BNY shall not be responsible for, and the Fund on
behalf of each Series shall indemnify and hold BNY, its officers, employees and
agents (collectively "BNY and its
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agents") harmless from and against any and all losses, damages, costs,
reasonable attorneys' fees and expenses, incurred by BNY or its agents in
connection with BNY's acceptance of this Agreement in the performance of
its/their duties hereunder in respect of such Fund, including but not limited to
those arising out of or attributable to:
(i) any and all actions of BNY and its agents
required to be taken pursuant to this Agreement;
(ii) the reliance on or use by BNY and/or its
agents of information, records, or documents which are
received by BNY and/or its agents and furnished to it or them
by or on behalf of the Fund, such Series or MBIA in accordance
with this Agreement, and which have been prepared or
maintained by the Fund, such Series or MBIA or any third party
on behalf of the Fund, such Series or MBIA;
(iii) the Fund's or MBIA's refusal or failure to
comply with the terms of this Agreement or any agreement
between such Series, the Fund and MBIA relating to the matters
herein, or the Fund's, such Series', or MBIA's lack of good
faith, or its actions, or lack thereof, involving negligence
or willful misfeasance;
(iv) any delays, inaccuracies, errors in or
omissions from information or data provided to BNY or its
agents by MBIA or such Series or the Fund or provided to BNY
or its agents by data or corporate action services or vendors;
(v) the offer or sale of shares by the Fund,
such Series in violation of any requirement under the Federal
securities laws or regulations or the securities laws or
regulations of any state, or in violation any stop order or
other determinations or ruling by any federal agency or any
state agency with respect to the offer or sale of such shakes
in such state (1) resulting from activities, actions,
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or omissions by the Fund, such Series or MBIA, or (2) existing
or arising out of activities, actions or omissions by or on
behalf of the Fund, such Series or MBIA prior to the effective
date of this Agreement;
(vi) all actions, omissions, or errors caused by
third parties to whom BNY, its agents, the Fund on behalf of
such Series, or MBIA has assigned any rights and/or delegated
any duties under this Agreement at the request of or as
required by the Fund or MBIA; and
(vii) BNY and its agents acting upon electronic or
written trade instructions given by MBIA pursuant to
Section 3;
provided that, in no event shall BNY or its agents be indemnified for its or
their negligence, bad faith or willful misfeasance in carrying out its or their
duties hereunder.
(c) MBIA shall indemnify and hold BNY, and its agents
harmless from and against any and all losses, damages, costs, reasonable
attorneys' fees and expenses, incurred by BNY and its agents insofar as such
losses, damages or costs arise out of, or are based upon, wrongful exercise by
MBIA of its rights under the Financial Guaranty Agreement to give instructions
to BNY pursuant to Section 3 hereof; provided that, in no event shall BNY or its
agents be indemnified for its or their negligence, bad faith or willful
misfeasance in carrying out its duties hereunder.
(d) In performing its services hereunder, BNY and its
agents shall be entitled to rely only on written instructions (oral instructions
are not permitted), notices or other communications, including electronic
transmissions, bearing or purporting to bear the manual or facsimile signature
of any person from each Series, the Fund or MBIA (an "Authorized Person") named,
and in the capacity identified, in lists (naming those persons who may authorize
the
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transactions in Sections 2 and 3) which are attached hereto as Exhibit 3 (for
the Fund) and Exhibit 4 (for MBIA). Any changes to such lists will be furnished
to BNY from time to time in writing and given in the manner set forth in Section
9 hereof and will be signed by an officer of either the Fund or MBIA, as
appropriate, who shall provide BNY with evidence of his or her authority to make
such changes. Each of the Fund, in Exhibit 3, and MBIA, in Exhibit 4, will
provide BNY with authenticated specimen signatures of each Authorized Person,
and each of the Fund, on behalf of each Series, and MBIA shall indemnify BNY and
its agents for any loss or expense caused by reliance upon such authenticated
specimen signatures which BNY and its agents acting in good faith believe to be
genuine, valid and authorized, and shall be indemnified by each of the Fund and
MBIA as appropriate for any loss or expense caused by such reliance. In
addition, in performing its services hereunder, BNY and its agents also shall be
entitled to consult with and rely on the advice and opinions of legal counsel
retained by BNY or the Fund or MBIA, as necessary or appropriate, including
BNY's in-house counsel, and BNY shall not be liable for any action taken,
suffered or omitted by it in accordance with the advice of such counsel.
(e) In the event that BNY or its agents shall receive
instructions, claims or demand from the Fund, a Series, or MBIA which, in BNY's
opinion, conflict with any of the provisions of this Agreement, BNY shall notify
the Fund, such Series, or MBIA, as the case may be, of such conflict and shall
be, entitled to refrain from taking any action and its sole obligation shall be
to keep safely all assets in the Series Account until it shall receive
instructions, claims or demands from such party which, in BNY's opinion, conform
to the provisions of this Agreement.
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(f) The duties and responsibilities of BNY hereunder
shall be determined solely by the express provisions of this Agreement, except
that the settlement and safekeeping of assets in the Series Accounts shall be
governed by the terms of the Custodian Agreement between BNY and the Fund.
Should there be any conflict between the terms of the Custodian Agreement and
the terms of this Agreement regarding the services set forth in Section 3 of
this Agreement, the terms of this Agreement shall govern.
(g) BNY shall have no responsibility to make
recommendations with respect to the purchase, retention or sale of assets
relating to the Series Accounts or to maintain any insurance on assets in the
Series Accounts for the benefit of MBIA or any Series BNY shall be under no
obligation to take action to collect any amount payable on assets in default, or
if payment is refused after due demand and presentment.
(h) BNY shall have no responsibility for any act or
omission, or for the solvency or insolvency, or notice to BNY or any of its
affiliates or agents of the solvency or insolvency, of any broker (other than a
BNY affiliate selected by BNY pursuant to Section 3 hereof to execute the trade
instructions provided by MBIA).
(i) Any liability of the Fund under this Agreement with
respect to a Series, or in connection with the transactions contemplated herein
with respect to such Series, shall be discharged only out of the assets of such
Series, and no other series of the Fund (including any other Series) shall be
liable with respect thereto.
(j) BNY shall not be responsible or liable for any
failure or delay in the performance of its obligations under this Agreement
arising out of or caused, directly or indirectly, by forces beyond the
reasonable control of BNY, including without limitation strikes, work stoppages,
acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes
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or acts of God, or interruptions, loss or malfunctions of utilities,
communication services or computer (software or hardware) services but only to
the extent beyond BNY's reasonable control, and only if BNY is maintaining such
back-up system(s) and disaster recovery plan(s) as are required by its
regulators and all laws applicable to BNY; it being understood that BNY shall
use commercially reasonable best efforts to resume performance as soon as
practicable under the circumstances
7. Term.
This Agreement shall become effective immediately and shall
terminate on the earlier of the termination date under the Custodian Agreement
or December 31, 2008, unless earlier terminated by any party hereto on 90 days'
written notice to the other parties. Upon termination of this Agreement, the
Fund, on behalf of each Series, shall pay to BNY such compensation and any
out-of-pocket or other reimbursable expenses which may become due or payable
under the terms hereof as of the date of termination or after the date that the
provision of services ceases, whichever is later.
8. Representations.
(a) The Fund, on behalf of each Series, represents and
warrants that the Fund has directed such Series' investment adviser to comply
with the Guidelines and purchase for such accounts only assets conforming to the
Guidelines.
(b) Each of the parties hereto represents and warrants
that: (i) it has the legal right, power and authority to execute; deliver and
perform this Agreement and to carry out all of the transactions contemplated
hereby; (ii) it has obtained all necessary authorizations, (iii) the execution,
delivery and performance of this Agreement and the carrying out of any of the
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transactions contemplated hereby will not be in conflict with, result in a
breach of or constitute a default under any agreement or other instrument to
which it is a party or which is otherwise known to it; (iv) it does not require
the consent or approval of any governmental agency or instrumentality, except
any such consents and approvals which it has obtained; and (v) the execution and
delivery of this Agreement by it will not violate any law, regulation, charter,
by-law, order of any court or governmental agency or judgment applicable to it.
9. Notices.
Any notice required or permitted hereunder shall be in writing
and shall be deemed effective on the date of personal delivery (by private
messenger, courier service or otherwise) or upon confirmed receipt of telex or
facsimile or other electronic system acceptable to BNY, whichever occurs first,
or upon receipt if by mail to the parties at the following address (or such
other address as a party may specify by notice to the others):
If to the Fund or a Series:
ING Equity Trust
0000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and
Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
If to MBIA:
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: General Counsel's Office - Xxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to BNY:
The Bank of New York
000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
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Attention:
Phone:
Fax:
10. Waiver.
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
11. Amendments.
This Agreement may be modified or amended from time to time by
mutual written agreement of the parties hereto. No provision of this Agreement
may be changed, discharged, or terminated orally, but only by an instrument in
writing signed by the parties.
12. Severability.
If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all others persons and circumstances.
13. Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to laws as to
conflicts of laws, and shall be binding on all the parties hereto and their
respective successors and assigns. The Fund, MBIA and BNY hereby irrevocably
submit to the exclusive jurisdiction of the state and federal courts in the
State and County of New York for the purposes of any suit, action or other
proceedings arising out of this Agreement. The Fund, MBIA and BNY hereby
irrevocably waive any objection on the ground of venue, forum non conveniens, or
any similar grounds, and irrevocably consent to
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service of process by mail or in any manner permitted by New York law, and
irrevocably waive their respective rights to any jury trial. The headings of the
sections hereof are included for convenience of reference only and do not form a
part of this Agreement.
14. Benefit of the Parties.
This Agreement is for the exclusive benefit of the parties
hereto and shall not be relied upon by or create any beneficial interest in any
person not a party hereto including any shareholders of the Fund.
15. Counterparts:
This Agreement may be executed by the parties in a number of
counterparts each of which shall be an original and together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below as of the date first
written above.
ING EQUITY TRUST MBIA INSURANCE CORPORATION
By: -s- Xxxxxxx X. Xxxxxx By: -s- XXXX X. XXXXXXX
--------------------------- -------------------------
Name: Xxxxxxx X. Xxxxxx Name: XXXX X. XXXXXXX
Title: Executive Vice President Title: Vice President
THE BANK OF NEW YORK
BY: -s- XXXXXX X. XxXXXX
------------------------------
Name: XXXXXX X. XxXXXX
Title: VICE PRESIDENT
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AMENDED SCHEDULE A
WITH RESPECT TO THE
CUSTODIAN SERVICE AND MONITORING AGREEMENT
FEES AND EXPENSES
Series* Annual Fee
------- ----------
ING Principal Protection Fund $12,000
ING Principal Protection Fund II $12,000
ING Principal Protection Fund III $12,000
ING Principal Protection Fund IV $12,000
ING Principal Protection Fund V $12,000
ING Principal Protection Fund VI $12,000
ING Principal Protection Fund VII $12,000
Pursuant to the Custodian Service and Monitoring Agreement dated April 30, 2003,
by and among ING Equity Trust, MBIA (formerly MBIA Insurance Corporation) and
The Bank of New York (the "Agreement") the undersigned hereby amend this
Schedule A to the Agreement to add ING Principal Protection Fund, ING Principal
Protection Fund II, ING Principal Protection Fund III, ING Principal Protection
Fund IV, ING Principal Protection Fund V, and Principal Protection Fund VI.
IN WITNESS WHEREOF, the undersigned have caused this amendment to be executed as
of June 2, 2003.
THE BANK OF NEW
ING EQUITY TRUST MBIA YORK
-S- Xxxxxx X. Naka -S- XXXX X. XXXXXXX -S- XXXXXX X. XxXXXX
------------------------------ ----------------------- -----------------------
Name: Xxxxxx X. Naka Name: XXXX X. XXXXXXX Name: XXXXXX X. XxXXXX
Title: Senior Vice President Title: Vice President Title: VICE PRESIDENT
-----------
* Any new series of the Fund added to this Agreement will be subject to prior
review by The Bank of New York, and the rate charged with respect to such
new series may be equal to or higher than the annual rate of $12,000,
depending upon transaction volumes.
SCHEDULE A
FEES AND EXPENSES
Series(1) Annual Fee
--------- ----------
ING Principal Protection Fund VII $ 12,000
(1) Any new series of the Fund added to this Agreement will be subject to prior
review by BNY, and the rate charged with respect to such new series may be
equal to or higher than the annual rate of $12,000, depending upon
transaction volumes.
SCHEDULE B
CONFORMING ASSETS GUIDELINES
BNY will utilize Open Bloomberg to determine whether the non-callable corporate
debt securities have the requisite ratings from S&P and Moody's in performing
the Conforming Assets Guideline review. In the event a corporate debt rating is
not available on Open Bloomberg, BNY will apply the rating from Moody's and
Standard & Poors, if available. If not, BNY will use the issuer's long-term debt
rating for monitoring purposes.
Equity Asset Test
- Equity securities of any company included in the S&P 500 Index, as
published by FactSet Data Systems, Inc. or by S&P
- Forward contracts on the S&P 500 Index, as traded on the Chicago
Mercantile Exchange
Fixed Income Assets Test
- U.S. Treasury or Agency Zeroes, including Government Trust
Certificates, which represent an interest in a government trust, the
property of which consists of (i) a promissory note of a foreign
government no less than 90% of which is backed by a full faith and
credit guaranty issued by the Federal Government of the United States
of America (issued pursuant to Title III of the Foreign Operations,
Export, Financing and Related Borrowers Programs Appropriations Act,
1988) and (ii) a security interest in obligations of the United States
Treasury backed by the full faith and credit of the United States of
America sufficient to support the remaining balance (no more than 10%)
of all payments of principal and interest on such promissory note, and
which are rated at least AAA by S&P or Aaa by Moody's, maturing on, or
within 90 days preceding, the Guarantee Maturity Date
- Non-callable corporate debt securities, maturing within 3 years
(preceding or following) of the Guarantee Maturity Date and having a
rating of at least AA- by S&P or Aa3 by Moody's
- U.S. Treasury Notes and U.S. Agency Notes maturing within 3 years
(preceding or following) of the Guarantee Maturity Date
- if both Moody's and S&P have issued a rating thereon, such rating shall
be no less than Aa3/AA-
- U.S. Treasury Futures
Cash and Cash Equivalents Test
- Cash and
- the following short-term securities with remaining maturities of 180
days or less:
(1) direct obligations of, and obligations fully guaranteed as to full
and timely payment by the full faith and credit of, the United States
of America, U.S. Agency Notes and U.S. Agency Zeroes;
18
(2) demand deposits, time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United States of
America or any state thereof; provided that at the time of investment therein
the commercial paper or other short-term unsecured debt obligations thereof
shall be rated at least A-1 by S&P or P-1 by Moody's
(3) bankers acceptances issued by any depository institution or trust company
referred to in clause (2) above and
(4) commercial paper having at the time of the investment therein a rating of at
least A-1 by S&P or P-1 by Moody's
(5) "Qualified Repurchase Agreements" which shall mean, with respect to any PPF
and any Valuation Date, repurchase agreements that (i) mature in no more than
seven days (ii) are 102% fully collateralized with cash, U.S.Treasury securities
or X.X.Xxxxxx debentures, (iii) are marked-to-market and remargined daily, and
(iv) are issued by sellers that at the time of issue have a short-term rating of
P-1 from Moody's and A-1 or A-1+ from Standard and Poor's, or in the absence of
a short-term rating of the issuer, the parent of the issuer has a short-term
rating of P-1 from Moody's and A-1 or A-1 + from Standard and Poor's, provided
that a repurchase agreement will not be a Qualified Repurchase Agreement, if
immediately after its purchase the aggregate amount of all Qualified Repurchase
Agreements would exceed 10% of the Total Net Assets, except that during the
initial ten days of the Guarantee Period there shall be no limitation on
Qualified Repurchase Agreements as a percentage of Total Net Assets.
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EXHIBIT 1
EVENT OF DEFAULT NOTICE
[Date]
[Addressee BNY]
Re: Event of Default
Pursuant to Section 3 of the Custodian Service and Monitoring Agreement (the
"Agreement") dated___________________among ING Equity Trust ("Fund"), The Bank
of New York ("BNY") and MBIA Insurance Corporation ("MBIA"), please be advised
that an Event of Default, as defined in Section 4.1(_______) relating to a
default under [Section 3.________________ of](1) the Financial Guaranty
Agreement dated among the Fund and MBIA [with respect to ING Principal
Protection Fund [____]][with respect to each of the ING Principal Protection
Funds], has occurred and [remains uncured. Please reject and do not act upon any
trade instructions for the settlement of securities issued directly by [the
Series Fund][all Series Funds] (or its investment adviser or its sub-adviser)
for [the] [all] ING Principal Protection Fund[s] [_______________] Account #
_________________.] or [was cured on the date hereof, as indicated in a Cure
Notice dated the date hereof].(2) Please have the following trades listed on the
attached Trade Instructions executed in respect of ING Principal Protection Fund
[_______].
MBIA Insurance Corporation
By:
Title:
copy: ING Equity Trust
0000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and Secretary
Phone: (000)000-0000
Fax: (000) 000-0000
--------------
(1) Strike language in brackets and initial if Section 4.1 (c) or (d) Event
of Default has occurred.
(2) Strike inappropriate language in brackets and initial.
20
EXHIBIT 1 - ATTACHMENT 1
MANUAL TRADE INSTRUCTIONS
(WITH RESPECT TO ING PRINCIPAL PROTECTION FUND [___________])
From: MBIA Insurance Corporation
PORTFOLIO ACCOUNT BUY OR SELL SECURITY NAME TICKET/CUSIP QUANTITY
----------------- ----------- ------------- ------------ --------
1.
------------------- ------------------ ----------------- ----------------- --------------------
2.
------------------- ------------------ ----------------- ----------------- --------------------
3.
------------------- ------------------ ----------------- ----------------- --------------------
4.
------------------- ------------------ ----------------- ----------------- --------------------
5.
------------------- ------------------ ----------------- ----------------- --------------------
6.
------------------- ------------------ ----------------- ----------------- --------------------
7.
------------------- ------------------ ----------------- ----------------- --------------------
8.
------------------- ------------------ ----------------- ----------------- --------------------
Note: CUSIP Number is only required for U.S. Treasury Strip securities.
copy: ING Equity Trust
[________________]
Attn: Counsel
Fax: [(_______) ______ - _______]
EXHIBIT 2
CURE NOTICE
[Date]
ING Equity Trust
0000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, Vice President and Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
Re: Event of Default
Pursuant to Section 3 of the Custodian Service and Monitoring Agreement (the
"Agreement") dated__________________among ING Equity Trust ("Fund"), The Bank of
New York ("BNY") and MBIA Insurance Corporation ("MBIA"), please be advised that
an Event of Default identified in our written notice to BNY dated
___________________________, as defined in Section 4.1(_________) relating to a
default under [Section 3.__________of](3) the Financial Guaranty Agreement
dated________________________________ among the Fund and MBIA has been cured.
Please revert to your normal method of accepting trade instructions from the ING
Principal Protection Fund [_________________] (or its investment adviser or its
sub-adviser) for ING Principal Protection Fund [_____________] (as defined in
the Agreement).
MBIA Insurance Corporation
_____________________________
By:
Title:
copy: The Bank of New York
-------------------
(3) Strike language in brackets and initial if Section 4.1(c) or (d) Event
of Default has occurred.
EXHIBIT 3
AUTHORIZED PERSONS - ING EQUITY TRUST
The following ING Equity Trust personnel are authorized to instruct BNY as it
relates to ING Principal Protection Fund [_________]:
________________________________________________________________________________
Telephone: Facsimile:
________________________________________________________________________________
Telephone: Facsimile:
________________________________________________________________________________
Telephone: Facsimile:
________________________________________________________________________________
Telephone: Facsimile:
23
EXHIBIT 4
AUTHORIZED PERSONS AND SIGNATURE SAMPLES - MBIA INSURANCE CORPORATION
The following MBIA Insurance Corporation personnel are authorized to instruct
BNY as it relates to ING Principal Protection Fund [____]:
________________________________________________________________________________
Telephone: Facsimile:
________________________________________________________________________________
Telephone: Facsimile:
________________________________________________________________________________
Telephone: Facsimile:
________________________________________________________________________________
Telephone: Facsimile:
24
EXHIBIT 5
TRADE EXECUTION; NOTIFICATION FILE
Each ING Principal Protection Fund must have a header (Record Type 1), the trade
execution detail for purchases and sales (Record Type 2), hash totals (Record
Type 3) one each for purchase and sales.
FLAT FILE FORMAT FOR TRADE PARSE
HEADER (RECORD TYPE 1)
FIELD POSITION LENGTH COMMENTS
------------------------------------------------------------------------------
Record Type 1 1 "1"
Filler 2 1 space
Account 3 30 ING Portfolio
Trade Date 33 8 mm/dd/yy
Filler 41 1 space
Settlement Date 42 8 mm/dd/yy
Filler 50 1 space
Broker Number 51 6 Assigned by ING Operations
DETAIL (RECORD TYPE 2)
FIELD POSITION LENGTH COMMENTS
--------------------------------------------------------------------------------
Record Type 1 1 "2"
Filler 2 1 space
CUSIP 3 9
Filler 12 1 space
Ticker 13 6
Filler 19 1 space
Buy/Sell 20 1 "B" or "S"
Filler 21 1 space
Shares 22 7 no commas, no decimals
Filler 29 1 space
Price 30 11 six decimals, no commas
Filler 41 1 space
Commission 42 7 four decimals
Filler 49 1 space
Security Name 50 30
25
EXHIBIT 5 (CONT'D.)
TOTALS (RECORD TYPE 3)
FIELD POSITION LENGTH COMMENTS
---------------------------------------------------------------------------
Record Type 1 1 "3"
filler 2 1 space
Buy/Sell 3 1 "B" or "S"
filler 4 1 space
# of trades 5 4 no comma
filler 9 1 space
# of shares 13 8 no commas, no decimals
filler 21 1 space
Gross cost/proceeds 22 13 no commas, two decimals
filler 35 1 space
Commission 36 13 no commas, three decimals
filler 49 1 space
SEC Fee 50 9 no commas, two decimals
filler 59 1 space
Net cost/proceeds 60 13 no commas, two decimals
26
AMENDMENT TO THE
CUSTODIAN SERVICE AND MONITORING AGREEMENT
This Amendment to the Custodian Service and Monitoring Agreement (the
"Amendment"), which amends the Custodian Service and Monitoring Agreement dated
April 30, 2003, by and among ING Equity Trust, MBIA (formerly MBIA Insurance
Corporation) and The Bank of New York (the "Agreement"), is made and entered
into as of September 30, 2003.
WHEREAS, ING Equity Trust, MBIA and The Bank of New York (the
"Parties") are parties to that certain Custodian Service and Monitoring
Agreement dated April 30, 2003; and
WHEREAS, the Parties to the Agreement wish to amend Section 6(c) of the
Agreement and SCHEDULE B to the Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree that:
A. Amendment to Section 6(c). Section 6(c) of the Agreement is
hereby amended by adding the following sentence as the last sentence in Section
6(c):
In cases where BNY is entitled to indemnification from MBIA
under this paragraph (c) and also may be eligible to receive
indemnification from a Fund as provided in paragraph (b) of
this Section 6, BNY shall not seek to recover from the Fund
until it has sought recovery and made a good faith effort to
collect from MBIA under this paragraph (c).
B. Amendments to SCHEDULE B.
1. SCHEDULE B, Conforming Assets Guidelines, attached to the
Agreement and dated April 30, 2003 is hereby deleted in its
entirety; and
2. AMENDED SCHEDULE B, Conforming Assets Guidelines, attached
hereto replaces, in its entirety, the previous SCHEDULE B to
the Agreement.
IN WITNESS WHEREOF, the undersigned have caused this amendment to be
executed as of September 30, 2003.
ING EQUITY TRUST MBIA
By: -S- Xxxxxxx X. Xxxxxx By: -S- XXXXX X. XXXXX
-------------------------- --------------------------
Name: Xxxxxxx X. Xxxxxx Name: XXXXX X. XXXXX
Title: Executive Vice President Title: Managing Director
THE BANK OF NEW YORK
By: -S- XXX X. XXXXXX
-------------------
Name: XXX X. XXXXXX
Title: VICE PRESIDENT
AMENDED SCHEDULE B
CONFORMING ASSETS GUIDELINES
BNY will utilize Open Bloomberg to determine whether the non-callable corporate
debt securities have the requisite ratings from S&P and Moody's in performing
the Conforming Assets Guideline review. In the event a corporate debt rating is
not available on Open Bloomberg, BNY will apply the rating from Moody's and
Standard & Poors, if available. If not, BNY will use the issuer's long- term
debt rating for monitoring purposes.
Equity Asset Test
- Equity securities of any company included in the S&P 500 Index, as
published by FactSet Data Systems, Inc. or by S&P
- Forward contracts on the S&P 500 Index, as traded on the Chicago
Mercantile Exchange
- Exchange Traded Funds that invest in a portfolio of stocks designed to
track the performance and dividend yield of the S&P 500 Index
Fixed Income Assets Test
- U.S. Treasury or Agency Zeroes, including Government Trust
Certificates, which represent an interest in a government trust, the property of
which consists of (i) a promissory note of a foreign government no less than 90%
of which is backed by a full faith and credit guaranty issued by the Federal
Government of the United States of America (issued pursuant to Title III of the
Foreign Operations, Export, Financing and Related Borrowers Programs
Appropriations Act, 1988) and (ii) a security interest in obligations of the
United States Treasury backed by the full faith and credit of the United States
of America sufficient to support the remaining balance (no more than 10%) of all
payments of principal and interest on such promissory note, and which are rated
at least AAA by S&P or Aaa by Moody's, maturing on, or within 90 days preceding,
the Guarantee Maturity Date
- Non-callable corporate debt securities, maturing within 3 years
(preceding or following) of the Guarantee Maturity Date and having a rating of
at least AA- by S&P or Aa3 by Moody's
- U.S. Treasury Notes and U.S. Agency Notes maturing within 3 years
(preceding or following) of the Guarantee Maturity Date
- if both Moody's and S&P have issued a rating thereon, such rating shall
be no less than Aa3/AA-
- U.S. Treasury Futures
Cash and Cash Equivalents Test
- Cash and
- the following short-term securities with remaining maturities of 180
days or less:
(1) direct obligations of, and obligations fully guaranteed as to full and
timely payment by the full faith and credit of, the United States of America,
U.S. Agency Notes and U.S. Agency Zeroes;
(2) demand deposits, time deposits or certificates of deposit of any depository
institution or trust company incorporated under the laws of the United States of
America or any state thereof; provided that at the time of investment therein
the commercial paper or other short-term unsecured debt obligations thereof
shall be rated at least A-l by S&P or P-l by Moody's
(3) bankers acceptances issued by any depository institution or trust company
referred to in clause
(2) above and
(4) commercial paper having at the time of the investment therein a rating of at
least A-l by S&P or P-l by Moody's
(5) "Qualified Repurchase Agreements" which shall mean, with respect to any PPF
and any Valuation Date, repurchase agreements that (i) mature in no more than
seven days (ii) are 102% fully collateralized with cash, U.S. Treasury
securities or U.S. Agency debentures, (iii) are marked-to-market and remargined
daily, and (iv) are issued by sellers that at the time of issue have a
short-term rating of P-l from Moody's and A-l or A-l + from Standard and Poor's,
or in the absence of a short-term rating of the issuer, the parent of the issuer
has a short-term rating of P-l from Moody's and A-l or A-l + from Standard and
Poor's, provided that a repurchase agreement will not be a Qualified Repurchase
Agreement, if immediately after its purchase the aggregate amount of all
Qualified Repurchase Agreements would exceed 10% of the Total Net Assets, except
that during the initial ten days of the Guarantee Period there shall be no
limitation on Qualified Repurchase Agreements as a percentage of Total Net
Assets.
