EXHIBIT (h)(9)
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of January 6, 2003, by and between each entity listed
on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and The Bank of
New York, a New York banking organization ("BNY").
WITNESSETH:
WHEREAS, each Fund is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain BNY to provide for the portfolios
identified on Exhibit A hereto (each, a "Series") the services described herein,
and BNY is willing to provide such services, all as more fully set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
Each Fund hereby appoints BNY as its agent for the term of this
Agreement to perform the services described herein. BNY hereby accepts such
appointment and agrees to perform the duties hereinafter set forth.
2. Representations and Warranties.
Each Fund hereby represents and warrants to BNY, which representations
and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of
the jurisdiction of its organization, with full power to carry on its business
as now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms;
(c) It is conducting its business in compliance in all
material respects with all applicable laws and regulations, both state and
federal, and has obtained all regulatory licenses, approvals and consents
necessary to carry on its business as now conducted; there is no statute,
regulation, rule, order or judgment binding on it and except at addressed herein
no provision of its charter or by-laws, nor of any mortgage, indenture, credit
agreement or other contract binding on it or affecting its property which would
prohibit its execution or performance of this Agreement; and
(d) To the extent the performance of any services
described in Schedule I attached hereto by BNY that relate to pricing of
securities or calculation of net asset value in accordance with the then
effective Prospectus (as hereinafter defined) for the Fund would violate any
applicable laws or regulations, the Fund shall immediately so notify BNY in
writing and thereafter shall either furnish BNY with the appropriate values of
securities, net asset value or other computation, as the case may be, or,
subject to the prior approval of BNY which BNY shall not unreasonably withhold,
instruct BNY in writing to value securities and/or compute net asset value or
other computations in a manner the Fund specifies in writing, and either the
furnishing of such values or the giving of such instructions shall constitute a
representation by the Fund that the same is consistent with all applicable laws
and regulations and with its Prospectus.
3. Delivery of Documents.
(a) Each Fund will promptly deliver to BNY true and
correct copies of each of the following documents as currently in effect and
will promptly deliver to it all future amendments and supplements thereto, if
any:
(i) The Fund's Declaration of Trust or other
organizational document and all amendments thereto (the "Charter");
(ii) The Fund's bylaws (the "Bylaws");
(iii) Resolutions of the Fund's board of trustees
or other governing body (the "Board") authorizing the execution, delivery and
performance of this Agreement by the Fund;
(iv) The Fund's registration statement most
recently filed with the
-2-
Securities and Exchange Commission (the "SEC") relating to the shares of the
Fund (the "Registration Statement");
(v) The Fund's Notification of Registration
under the 1940 Act on Form N-8A filed with the SEC; and
(vi) The Fund's Prospectus and Statement of
Additional Information pertaining to the Series (collectively, the
"Prospectus").
(b) Each copy of the Charter shall be certified by the
Secretary of State (or other appropriate official) of the state of organization,
and if the Charter is required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be filed with a
certified copy submitted to BNY. Each copy of the Bylaws, Registration Statement
and Prospectus, and all amendments thereto, and copies of Board resolutions,
shall be certified by the Secretary or an Assistant Secretary of the appropriate
Fund.
(c) It shall be the sole responsibility of each Fund to
deliver to BNY its currently effective Prospectus and BNY shall not be deemed to
have notice of any information contained in such Prospectus until it is actually
received by BNY.
4. Duties and Obligations of BNY.
(a) Subject to the direction and control of each Fund's
Board and the provisions of this Agreement, BNY shall provide daily to each Fund
and each Series specified on Exhibit A attached hereto the services described in
Schedule I, as such schedule may be amended from time to time. Subject to the
provisions of this Agreement, BNY shall compute the net asset value per share of
each class of shares ("Class") of each Series of the Fund and shall value the
securities held by the Fund (the "Securities") at such times and dates and in
the manner specified in the then currently effective Prospectus of the Fund. To
the extent valuation of Securities or computation of a net asset value of a
Series or Class, in accordance with the valuation procedures applicable to the
calculation of such net asset values as approved by the Fund's Board and as
specified in the Fund's then currently effective Prospectus, is at any time
inconsistent with any applicable laws or regulations, the Fund shall immediately
so notify BNY in writing and thereafter shall either furnish BNY at all
appropriate times with the values of such Securities and the net asset value of
each Class of each Series', or subject to the prior approval of BNY, which
-3-
BNY shall not unreasonably withhold, instruct BNY in writing to value Securities
and compute the net asset value of each Class of each Series' in a manner which
the Fund then represents in writing to be consistent with all applicable laws
and regulations. The Fund may also from time to time instruct BNY in writing to
compute the value of the Securities or a Series' or Class' net asset value in a
manner other than as specified in this paragraph. By giving such instruction,
the Fund shall be deemed to have represented that such instruction is consistent
with all applicable laws and regulations and the then currently effective
Prospectus of the Fund. The Fund shall have sole responsibility for determining
the method of valuation of Securities and the method of computing each Series'
and Class' net asset value.
(b) In performing hereunder, BNY shall provide, at its
expense, office space, facilities, equipment and personnel.
(c) BNY shall not provide any services relating to the
management, investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, maintenance of any Fund's financial records
other than those listed on Schedule 1 or other services normally performed by
the Funds' respective counsel or independent auditors.
(d) Upon receipt of a Fund's prior written consent (which
shall not be unreasonably withheld), BNY may delegate any of its duties and
obligations hereunder to any delegee or agent whenever and on such terms and
conditions as it deems necessary or appropriate. Notwithstanding the foregoing,
no Fund consent shall be required for any such delegation to any other
subsidiary of The Bank of New York Company, Inc. BNY shall not be liable to any
Fund for any loss or damage arising out of, or in connection with, the actions
or omissions to act of any delegee or agent utilized hereunder other than a
delegee or agent which is a subsidiary or the Bank of New York Company, Inc so
long as BNY acts in good faith and without negligence or wilful misconduct in
the selection of such delegee or agent. With respect to any delegee or agent
which is a subsidiary of The Bank of New York Company, Inc., BNY shall be deemed
to have committed any act or omission of such delegee.
(e) Each Fund shall cause its officers, advisors,
sponsor, distributor, legal counsel, independent accountants, current
administrator (if any) and transfer agent to cooperate with BNY and to provide
BNY, upon request, with such information, documents and advice
-4-
relating to such Fund as is within the possession or knowledge of such persons
and is reasonably believed by BNY to be necessary or appropriate in order for
BNY to perform its duties hereunder. In connection with its duties hereunder,
BNY shall be entitled to rely, and shall be held harmless by each Fund when
acting in reliance, upon the instructions, advice or any documents relating to
such Fund provided to BNY by a Fund's officers, advisors, sponsor, distributor,
legal counsel, independent accountants, current administrator (if any) and
transfer agent and reasonably believed to be accurate by BNY. BNY shall not be
liable for any loss, damage or expense resulting from or arising out of the
failure of the Fund to cause any information, documents or advice to be provided
to BNY as provided herein. All fees or costs charged by such persons shall be
borne by the appropriate Fund.
(f) Nothing in this Agreement shall limit or restrict
BNY, any affiliate of BNY or any officer or employee thereof from acting for or
with any third parties, and providing services similar or identical to some or
all of the services provided hereunder.
(g) Each Fund shall furnish BNY with any and all
instructions, explanations, information, specifications and documentation deemed
reasonably necessary by BNY in the performance of its duties hereunder,
including, without limitation, the amounts or written formula for calculating
the amounts and times of accrual of Fund liabilities and expenses and BNY shall
comply with any such instructions, explanations, information, specifications,
and documentation. BNY shall not be required to include as Fund liabilities and
expenses, nor as a reduction of net asset value, any accrual for any federal,
state, or foreign income taxes unless the Fund shall have specified to BNY the
precise amount of the same to be included in liabilities and expenses or used to
reduce net asset value. Each Fund shall also furnish BNY with bid, offer, or
market values of Securities if BNY notifies such Fund that same are not
available to BNY from a security pricing or similar service utilized, or
subscribed to, by BNY which BNY in its judgment deems reliable at the time such
information is required for calculations hereunder. At any time and from time to
time, the Fund also may furnish BNY with bid, offer, or market values of
Securities and instruct BNY to use such information in its calculations
hereunder. BNY shall at no time be required or obligated to commence or maintain
any utilization of, or subscriptions to, any particular securities pricing or
similar service, but shall be required and obligated to maintain a subscription
or access to at least one securities pricing or similar service.
-5-
(h) BNY may apply to an officer of any Fund for written
instructions with respect to any matter arising in connection with BNY's
performance hereunder for such Fund, and BNY shall not be liable for any action
reasonably taken or omitted to be taken by it in good faith in accordance with
such instructions. Such application for instructions may, at the option of BNY,
set forth in writing any action reasonably proposed to be taken or omitted to be
taken by BNY with respect to its duties or obligations under this Agreement and
the date on and/or after which such action shall be taken, and BNY shall not be
liable for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein
(provided that BNY has given the officer of the Funds a commercially reasonable
amount of time to respond to the request for instructions) unless, prior to
taking or omitting to take any such action, BNY has received written
instructions in response to such application specifying the action to be taken
or omitted.
(i) BNY may consult with counsel to the appropriate Fund
or its own counsel, and shall be fully protected with respect to anything done
or omitted by it in good faith in accordance with the advice or opinion of such
counsel. BNY shall provide prompt notification to the appropriate Fund in the
event that it acts upon advice or opinion of counsel that is inconsistent with
instructions, procedures, or requests provided by the Fund. The appropriate Fund
shall be liable for the fees and expenses of its counsel and for the reasonable
fees and expense of BNY's own counsel, not to exceed in any one instance $10,000
without the prior consent of the appropriate fund.
(j) Notwithstanding any other provision contained in this
Agreement or Schedule I attached hereto, BNY shall have no duty or obligation
with respect to, including, without limitation, any duty or obligation to
determine, or advise or notify any Fund of: (i) the taxable nature of any
distribution or amount received or deemed received by, or payable to, a Fund,
(ii) the taxable nature or effect on a Fund or its shareholders of any corporate
actions, class actions, tax reclaims, tax refunds or similar events, (iii) the
taxable nature or taxable amount of any distribution or dividend paid, payable
or deemed paid, by a Fund to its shareholders; or (iv) the effect under any
federal, state, or foreign income tax laws of a Fund making or not making any
distribution or dividend payment, or any election with respect thereto.
-6-
(k) BNY shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement and Schedule I attached hereto, and no covenant or obligation
shall be implied against BNY in connection with this Agreement.
(1) BNY, in performing the services required of it under
the terms of this Agreement, shall be entitled to rely fully on the accuracy and
validity of any and all instructions, explanations, information, specifications
and documentation furnished to it by a Fund and shall have no duty or obligation
to review the accuracy, validity or propriety of such instructions,
explanations, information, specifications or documentation, including, without
limitation, evaluations of securities; the amounts or formula for calculating
the amounts and times of accrual of Series' liabilities and expenses; the
amounts receivable and the amounts payable on the sale or purchase of
Securities; and amounts receivable or amounts payable for the sale or redemption
of Fund shares effected by or on behalf of a Fund. In the event BNY's
computations hereunder rely, in whole or in part, upon information, including,
without limitation, bid, offer or market values of securities or other assets,
or accruals of interest or earnings thereon, from a pricing or similar service
utilized, or subscribed to, by BNY which BNY in its judgment deems reliable, BNY
shall not be responsible for, under any duty to inquire into, or deemed to make
any assurances with respect to, the accuracy or completeness of such information
except that BNY shall apply its normal tolerance tests. Without limiting the
generality of the foregoing, BNY shall not be required to inquire into any
valuation of securities or other assets by a Fund or any third party described
in this subsection (1) even though BNY in performing services similar to the
services provided pursuant to this Agreement for others may receive different
valuations of the same or different securities of the same issuers.
(m) BNY, in performing the services required of it under
the terms of this Agreement, shall not be responsible for determining whether
any interest accruable to a Fund is or will be actually paid, but will accrue
such interest until otherwise instructed by such Fund.
(n) BNY shall maintain such back-up system(s), and
disaster recovery plan(s), as are required by its regulators and all laws
applicable to it. BNY shall not be responsible for delays or errors which occur
by reason of circumstances beyond its control in the performance of
-7-
its duties under this Agreement, including, without limitation, labor
difficulties within or without BNY, mechanical breakdowns, flood or catastrophe,
acts of God, failures of transportation, interruptions, loss, or malfunctions of
utilities, communications or computer (hardware or software) services provided
BNY is maintaining such back-up system(s) and disaster recovery plan(s) as
described above, or, provided if it does not, that such delays and errors would
have occurred even if it had maintained the same. BNY should use commercially
reasonable best efforts to resume performance as soon as practicable under the
circumstances. Nor shall BNY be responsible for delays or failures to supply the
information or services specified in this Agreement where such delays or
failures are caused by the failure of any person(s) other than BNY to supply any
instructions, explanations, information, specifications or documentation deemed
necessary by BNY in the performance of its duties under this Agreement.
(o) BNY shall, as agent for the Funds, maintain and keep
current the books, accounts and other documents, if any, listed in Schedule I
and preserve any such books, accounts and other documents in accordance with the
applicable provisions of Rules 31a-l and 31a-2 of the General Rules and
Regulations under the Investment Company Act of 1940, as such Rules may be
amended. Such books, accounts and other documents shall be made available upon
reasonable request for inspection by officers, employees and auditors of the
Funds during BNY's normal business hours.
(p) All records maintained and preserved by BNY pursuant
to this Agreement which the Funds are required to maintain and preserve in
accordance with the above-mentioned Rules 31a-l and 31a-2 shall be and remain
the property of the Funds and shall be surrendered to the Funds or provided to
their regulators promptly upon request by the Funds in the form in which such
records have been maintained and preserved. Upon reasonable request of the
Funds, BNY shall provide in hard copy, computer disc, on micro-film or other
format as the Funds or their regulators shall request, any records included in
any such delivery which are maintained by BNY on a computer disc, or are
otherwise maintained.
(q) All books, records, information and data pertaining
to the business of the Funds, or their prior, present or potential shareholders
that are exchanged or received in connection with the
-8-
performance of BNY's duties under this Agreement shall remain confidential and
shall not be disclosed to any other person, except as specifically authorized by
the Funds or as may be required by law, and shall not be used for any purpose
other than performance of its responsibilities and duties hereunder, and except
that BNY retains the right to disclose matters subject to confidentiality to its
examiners, regulators, internal or external auditors, its accountants, and its
internal and external counsel, or to others, whenever it is advised by its
internal or external counsel that it is reasonably likely BNY would be liable
for a failure to do so. BNY will provide written notice to the Funds at least
five (5) business days prior to any disclosures pursuant to this Paragraph 4(q),
but, provided it shall have provided as much notice as is reasonably practicable
under the circumstances, BNY shall have no liability for any failure to do so.
(r) BNY hereby specifically agrees that it will provide
any sub-certifications reasonably requested by the Funds in connection with any
certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or
regulations promulgated by the Securities and Exchange Commission thereunder,
provided the same do not change BNY's standard of care.
5. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance by the Funds under this Agreement
shall be paid by the appropriate Fund, including but not limited to,
organizational costs and costs of maintaining corporate existence, taxes,
interest, brokerage fees and commissions, insurance premiums, compensation and
expenses of such Fund's trustees, directors, officers or employees, legal,
accounting and audit expenses, management, advisory, sub-advisory,
administration and shareholder servicing fees, charges of custodians, transfer
and dividend disbursing agents, expenses (including clerical expenses) incident
to the issuance, redemption or repurchase of Fund shares, fees and expenses
incident to the registration or qualification under federal or state securities
laws of the Fund or its shares, costs (including printing and mailing costs) of
preparing and distributing Prospectuses, reports, notices and proxy material to
such Fund's shareholders, all expenses incidental to holding meetings of such
Fund's trustees, directors and shareholders, and extraordinary expenses as may
arise, including litigation affecting such Fund and legal obligations relating
thereto for which the Fund may have to indemnify its trustees, directors and
-9-
officers. BNY shall pay all costs and expenses arising or incurred in connection
with its performance under this Agreement, as set forth in paragraph 4(b),
including the cost of subscription to at least one securities pricing or similar
service.
6. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, BNY shall not be
liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Fund, except those costs,
expenses, damages, liabilities or claims arising out of BNY's own negligence or
willful misconduct. In no event shall BNY be liable to any Fund or any third
party for special, indirect or consequential damages, or lost profits or loss of
business, arising under or in connection with this Agreement, even if previously
informed of the possibility of such damages and regardless of the form of
action. For purposes of this provision, if as a result of the negligence or
willful misconduct of BNY or that of its directors, officers or employees,
agents or delegates, there is a material error in the net asset value per share
of a Fund, the material losses of the Fund on the sale and issuance, or the
redemption, of its shares attributable to such material error shall be direct
money damages.
(b) Each Fund shall indemnify and hold harmless BNY from
and against any and all costs, expenses, damages, liabilities and claims
(including claims asserted by a Fund), and reasonable attorneys' and
accountants' fees relating thereto, which are sustained or incurred or which may
be asserted against BNY, by reason of or as a result of any action reasonably
taken or omitted to be taken by BNY in good faith hereunder or in reasonable
reliance upon (i) any law, act, regulation or interpretation of the same even
though the same may thereafter have been altered, changed, amended or repealed,
(ii) such Fund's Registration Statement or Prospectus, (iii) any instructions of
an officer of such Fund, or (iv) any opinion of legal counsel for such Fund or
BNY, or arising out of transactions or other activities of such Fund which
occurred prior to the commencement of this Agreement; provided, that no Fund
shall indemnify BNY for costs, expenses, damages, liabilities or claims for
which BNY is liable under preceding 6(a). This indemnity shall be a continuing
obligation of each Fund, its successors and assigns, notwithstanding the
termination of this Agreement. Without limiting the generality of the foregoing,
each Fund shall indemnify BNY against and save BNY harmless from any loss,
-10-
damage or expense, including reasonable counsel fees and other costs and
expenses of a defense against any claim or liability, arising from any one or
more of the following.
(i) Errors in records or instructions,
explanations, information, specifications or documentation of any kind, as the
case may be, supplied to BNY by the Funds;
(ii) Action or inaction taken or omitted to be
taken by BNY pursuant to written or oral instructions of the Fund or otherwise
without bad faith, negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by
BNY in good faith and with prompt notice to the Funds in accordance with the
advice or opinion of counsel for a Fund or its own counsel;
(iv) Any improper use by a Fund or its agents,
distributor or investment advisor of any valuations or computations supplied by
BNY pursuant to this Agreement;
(v) The method of valuation of the Securities
and the method of computing each Series' and Class' net asset value consistent
with paragraph 4(a); or
(vi) Any valuations of securities or net asset
value provided by a Fund.
(c) BNY shall indemnify and hold harmless the Funds from
and against any loss, damage or expense, including reasonable counsel fees and
other costs and expenses of a defense against any claim or liability (including
any claims asserted by BNY) arising out of the negligence or willful misconduct
of BNY, except that in no event shall BNY be liable for, nor indemnify the Funds
for, special, indirect or consequential damages, or for lost profits or loss of
business. For purposes of this provision, if as a result of the negligence or
willful misconduct of BNY or that of its directors, officers or employees,
agents or delegates, there is a material error in the net asset value per share
of a Fund, the material losses of the Fund on the sale and issuance, or the
redemption, of its shares attributable to such material error shall be direct
money damages. This indemnity shall be a continuing obligation of BNY, its
successors and assigns, notwithstanding the termination of this Agreement.
-11-
7. Compensation.
For the services provided hereunder, each Fund agrees to pay BNY such
compensation as is mutually agreed from time to time and such out-of-pocket
expenses (e.g., telecommunication charges, postage and delivery charges, and
reproduction charges) as are reasonably incurred by BNY in performing its duties
hereunder. Except as hereinafter set forth, compensation shall be calculated and
accrued daily and paid monthly. Upon termination of this Agreement before the
end of any month, the compensation for such part of a month shall be prorated
according to the proportion which such period bears to the full monthly period
and shall be payable upon the effective date of termination of this Agreement.
For the purpose of determining compensation payable to BNY, each Fund's net
asset value shall be computed at the times and in the manner specified in the
Fund's Prospectus.
8. Term of Agreement.
(a) This Agreement shall continue until terminated by
either BNY giving to a Fund, or a Fund giving to BNY, a notice in writing
specifying the date of such termination, which date shall be not less than 60
days after the date of the giving of such notice. Upon termination hereof, the
affected Fund(s) shall pay to BNY such compensation as may be due as of the date
of such termination, and shall reimburse BNY for any disbursements and expenses
made or incurred by BNY and payable or reimbursable hereunder. After payment of
such amounts BNY shall deliver to the Funds all records then the property of the
Funds.
(b) Notwithstanding the foregoing, BNY may terminate this
Agreement by notice to a Fund if such Fund shall terminate its custody agreement
with The Bank of New York, effective on the date of termination of the Custody
Agreement.
9. Authorized Persons.
Attached hereto as Exhibit B is a list of persons duly authorized by
the Board of each Fund to execute this Agreement and give any written or oral
instructions, or written or oral specifications, by or on behalf of such Fund.
From time to time each Fund may deliver a new Exhibit B to add or delete any
person and BNY shall be entitled to rely on the last Exhibit B actually received
by BNY.
-12-
10. Amendment.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and the Fund to be bound thereby, and
authorized or approved by such Fund's Board.
11. Assignment.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of BNY, or by BNY without the written consent of the affected Fund accompanied
by the authorization or approval of such Fund's Board.
12. Governing Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof. BNY
and Each Fund hereby consents to the jurisdiction of a state or federal court
situated in New York City, New York in connection with any dispute arising
hereunder, and waives to the fullest extent permitted by law its right to a
trial by jury. To the extent that in any jurisdiction BNY or any Fund may now or
hereafter be entitled to claim, for itself or its assets, immunity from suit,
execution, attachment (before or after judgment) or other legal process, BNY and
such Fund irrevocably agrees not to claim, and it hereby waives, such immunity.
13. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
14. No Waiver.
Each and every right granted to BNY hereunder or under any other
document delivered hereunder or in connection herewith, or allowed it by law or
equity, shall be cumulative and
-13-
may be exercised from time to time. No failure on the part of BNY to exercise,
and no delay in exercising, any right will operate as a waiver thereof, nor will
any single or partial exercise by BNY of any right preclude any other or future
exercise thereof or the exercise of any other right.
15. Notices.
All notices, requests, consents and other communications pursuant to
this Agreement in writing shall be sent as follows:
if to a Fund, at
ING Funds Services, LLC
0000 X. Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
if to BNY, at
The Bank of New York
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Title: Vice President
or at such other place as may from time to time be designated in
writing. Notices hereunder shall be effective upon receipt.
16. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
17. Several Obligations.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
-14-
This Agreement is an agreement entered into between BNY and the Funds
with respect to each Series. With respect to any obligation of a Fund on behalf
of a Series arising out of this Agreement, BNY shall look for payment or
satisfaction of such obligation solely to the assets of the Series to which such
obligation relates as though BNY had separately contracted with the Fund by
separate written instrument with respect to each Series.
18. Agreement and Declaration of Trust.
With respect to each Fund that is organized as a Massachusetts Business
Trust, a copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of the Commonwealth of Massachusetts. The Agreement and
Declaration of Trust has been executed on behalf of the Fund by its trustees in
their capacity as trustees and not individually. The obligations of this
Agreement shall be binding upon the assets and property of the Fund and shall
not be binding upon any trustee, officer, or shareholder of the Fund
individually.
-15-
IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: XXXXXXX X. XXXXXX
Title: EXECUTIVE VICE PRESIDENT
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
------------------------------
Name: Xxxxxx X. XxXxxx
Title: Vice President
-16-
EXHIBIT A
AS OF JANUARY 6, 2003
GCG TRUST:
Capital Growth Series
Value Equity Series
Asset Allocation Growth Series
Diversified Mid-Cap Series
Internet Tollkeeper Series
Limited Maturity Bond Series
Liquid Asset Series
Equity Opportunity Series
Focus Value Series
Fundamental Growth Series
All Cap Series
Investors Series
Strategic Equity Series
Fund for Life
EXHIBIT B
SECRETARY'S CERTIFICATE
Persons Authorized to Instruct Custodian
The undersigned Secretary of:
THE GCG TRUST
(collectively the "Funds"), hereby certifies as follows:
(a) That attached hereto as Exhibit A is a true copy of the
resolutions adopted by unanimous written consent by the Board of
Trustees, dated January 1, 2003 and that such resolutions have not
been amended, modified, rescinded or superceded and are in full
force and effect; and
(b) That the persons listed in Attachment A are empowered by the
resolutions and set forth opposite each name is their position and
specimen signature; and
(c) That each of the Funds are duly organized and existing, that their
charter empowers them to transact the business by the attached
resolutions defined, and that no limitation has been imposed upon
such powers by the By-Laws or otherwise, except as set forth in
the currently effective Prospectus of each Fund; and
(d) That Attachment A may be executed in counterparts.
IN WITNESS WHEREOF, THE UNDERSIGNED HAS SIGNED BELOW, THIS, 15TH DAY OF JANUARY,
2003.
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
XXXXXXXX X. XXXXXXXX
SECRETARY
ATTACHMENT A
Persons Authorized to Instruct Custodian
POSITION WITH THE FUND(S)
NAME (UNLESS OTHERWISE NOTED) SPECIMEN SIGNATURE
---- ------------------------ ------------------
Xxxxx X. Xxxxxxxx Vice President /s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxx Vice President & Assistant Secretary /s/ Xxxxxxx X. Xxxxxx
-----------------------
Xxxxxx X. Naka Senior Vice President & Assistant Secretary /s/ Xxxxxx X. Naka
-----------------------
Xxxxx X. Xxxxx Senior Vice President & Controller of /s/ Xxxxx X. Xxxxx
ING Funds Services, LLC -----------------------
Xxxxxxx X. Xxxxxxxx Vice President of ING Funds Services, /s/ Xxxxxxx X. Xxxxxxxx
LLC -----------------------
Xxx Xxxxxxxx Vice President & Secretary /s/ Xxx Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxx Vice President /s/ Xxxxx X. Xxxxxxx
-----------------------
Xxxxx Xxxxxxxx Assistant Vice President /s/ Xxxxx Xxxxxxxx
-----------------------
Xxxx Xxxxx Assistant Vice President /s/ Xxxx Xxxxx
-----------------------
Xxxx Xxxxx Supervisor - Fund Accounting of ING /s/ Xxxx Xxxxx
Funds Services, LLC -----------------------
Xxxxx Xxxxxx Supervisor - Fund Accounting of ING /s/ Xxxxx Xxxxxx
Funds Services, LLC -----------------------
Xxxxxx Xxxxxxxx Supervisor - Fund Accounting of ING /s/ Xxxxxx Xxxxxxxx
Funds Services, LLC -----------------------
Xxxxx Xxxxxxx Manager - Fund Accounting of ING /s/ Xxxxx Xxxxxxx
Funds Services, LLC -----------------------
Xxxxxx Xxxxxxxxxxx Supervisor - Fund Accounting of ING /s/ Xxxxxx Xxxxxxxxxxx
Funds Services, LLC -----------------------
THE GCG TRUST
(THE "FUNDS")
RESOLUTIONS ADOPTED BY UNANIMOUS WRITTEN CONSENT OF THE BOARD OF TRUSTEES DATED
JANUARY 1, 2003.
WHEREAS, the Funds and The Bank of New York ("BNY"), as Custodian, are
parties to a Custodian Agreement, which provide that the Funds designate certain
persons to give instructions on behalf of the Funds and to authorize the
Custodian to rely on written instructions over their signatures; and
WHEREAS, pending Board approval, ING Funds Services, LLC ("IFS") will
provide administrative services to the Funds subject to an Administrative
Services Sub-Contract between Directed Services, Inc. and IFS; and
WHEREAS, in conjunction with this Administrative Services Sub-Contract,
certain officers of IFS will become officers of the Funds, also pending Board
approval.
NOW, THEREFORE, BE IT RESOLVED, that effective January 1, 2003, the
following persons be, and they hereby are, authorized to execute and cause to be
delivered to BNY, as Custodian for the Funds, any and all instructions, orders,
and directions required or permitted to be given in the name of the Funds and on
their behalf pursuant to the Custodian Agreement:
POSITION WITH THE FUNDS
NAME (UNLESS OTHERWISE NOTED)
---- ------------------------
Xxxxx X. Xxxxxxxx Vice President
Xxxxxxx X. Xxxxxx Vice President & Assistant Secretary
Xxxxxx X. Naka Senior Vice President & Assistant Secretary
Xxxxx X. Xxxxx Senior Vice President & Controller of ING Funds
Services, LLC
Xxxxxxx X. Xxxxxxxx Vice President of ING Funds Services, LLC
Xxxxxxxx X. Xxxxxxxx Vice President & Secretary
Xxxxx X. Xxxxxxx Vice President
Xxxxx Xxxxxxxx Assistant Vice President
POSITION WITH THE FUNDS
NAME (UNLESS OTHERWISE NOTED)
---- ------------------------
Xxxx Xxxxx Assistant Vice President
Xxxx Xxxxx Supervisor-Fund Accounting of ING Funds
Services, LLC
Xxxxx Xxxxxx Supervisor-Fund Accounting of ING Funds
Services, LLC
Xxxxxx Xxxxxxxx Supervisor-Fund Accounting of ING Funds
Services, LLC
Xxxxx Xxxxxxx Manager-Fund Accounting of ING Funds Services,
LLC
Xxxxxx Xxxxxxxxxxx Supervisor-Fund Accounting of ING Funds
Services, LLC
and that, except as otherwise provided in said Custodian Agreement, all such
instructions and directions, with respect to amounts in excess of $100.00 but
less than $10,000.00, shall require the signature of two such persons; and with
respect to amounts equal to or in excess of $10,000.00, all such instructions
and directions shall require the signature of two such persons, one of whom
shall be a senior officer; and
FURTHER RESOLVED, that the appointment of the following persons,
effective January 1, 2003, the following persons be, and they hereby are,
authorized to execute and cause to be delivered to BNY, as Custodian for the
Funds, any and all instructions, orders, and directions required or permitted to
be given in the name of the Funds and on their behalf pursuant to the Custodian
Agreement with respect to amounts in excess of $10,000.00 but less than
$50,000.00:
NAME POSITION WITH THE FUNDS
---- -----------------------
Xxxxx Xxxxxxxx Assistant Vice President
Xxxx Xxxxx Assistant Vice President
and that except as otherwise provided in the Custodian Agreements, all
instructions and directions effected by either of the above referenced persons,
with respect to amounts in excess of $10,000.00 but less than $50,000.00, shall
require his/her signature and that of one other person authorized to instruct
the Custodian, which need not be a senior officer; and
FURTHER RESOLVED, that should it be necessary to make any additions to
said list of authorized persons prior to a regularly scheduled meeting of the
Board, the President and any senior officer of the Funds be, and they hereby
are, authorized to designate such person(s), so long as the Board is provided
notification and ratifies such designation at the next regularly scheduled
meeting.
++++++
EXHIBIT A
SCHEDULE I
VALUATION AND COMPUTATION SERVICES
I. BNY shall maintain the following records on a daily basis for
each Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share per Class
3. General Ledger
II BNY shall maintain the following records on a monthly basis
for each Series:
1. General Journal
2. Cash Receipts Journal
3. Cash Disbursements Journal
4. Subscriptions Journal
5. Redemptions Journal
6. Accounts Receivable Reports
7. Accounts Payable Reports
8. Open Subscriptions/Redemption Reports
9. Transaction (Securities) Journal
10. Broker Net Trades Reports
III. BNY shall prepare a Holdings Ledger on a quarterly basis, and
a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, The
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, BNY uses the Account Journals
produced by The Bank of New York Custody System to record daily settlements of
the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
V. BNY will also provide those services not already listed above
that are included in the Service Guidelines established and agreed between the
parties as the same may be revised from time to time by mutual agreement of the
parties hereto. The Services Guidelines will also govern the timeliness and
performance standards for services where specified therein.
