Exhibit (g)(13)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of January 6, 2003 between each entity listed on
Schedule 1 attached hereto (each a "Fund" and collectively, "Funds") and The
Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, the Fund and BNY have entered into a Custody Agreement (the
"Custody Agreement");
WHEREAS, the Fund is authorized to issue shares in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets, and the Fund has made each of its current series listed on
Schedule 1 hereto (the "Series"), as may be amended from time to time, subject
to this Agreement;
WHEREAS, the Fund desires to appoint BNY as a Foreign Custody Manager on
the terms and conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the
duties set forth herein on the terms and conditions contained herein; and
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Fund and BNY hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1. "BOARD" shall mean the board of directors or board of trustees, as the
case may be, of the Fund.
2. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
3. "MONITORING SYSTEM" shall mean a system established by BNY to fulfill
the Responsibilities specified in clauses (d) and (e) of Section 1 of Article
III of this Agreement.
4. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY
under the Rule as a Foreign Custody Manager with respect to each Specified
Country and each Eligible Foreign Custodian selected by BNY, as such
responsibilities are more fully described in Article III of this Agreement.
5. "RULE" shall mean Rule 17f-5 under the Investment Company Act of 1940,
as amended on June 12, 2000.
6. "SPECIFIED COUNTRY" shall mean each country listed on Schedule 2
attached hereto (as amended from time to time) and each country, other than the
United States, constituting the primary market for a security with respect to
which the Fund has given, or may give, settlement instructions to The Bank of
New York as custodian (the "Custodian") under its Custody Agreement with the
Fund.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. The Fund on behalf of its Board hereby delegates to BNY with respect to
each Specified Country the Responsibilities.
2. BNY accepts the Board's delegation of Responsibilities with respect to
each Specified Country and agrees in performing the Responsibilities as a
Foreign Custody Manager to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of the Fund's assets would
exercise.
3. BNY shall provide to the Board and the Fund's investment adviser at
such times as the Board deems reasonable and appropriate based on the
circumstances of the Fund's foreign custody arrangements (but in no event less
frequently than quarterly) written reports notifying the Board and the Fund's
investment adviser of the placement of assets of the Fund with a particular
Eligible Foreign Custodian within a Specified Country and shall promptly notify
the Board and the Fund's investment adviser of any material change in the
arrangements (including the contract governing such arrangements) with respect
to assets of the Fund with any such Eligible Foreign Custodian.
ARTICLE III.
RESPONSIBILITIES
1. Subject to the provisions of this Agreement, BNY shall with respect to
each Specified Country select an Eligible Foreign Custodian. In connection
therewith, BNY shall: (a) determine that assets of the Fund held by such
Eligible Foreign Custodian will be subject to reasonable care, based on the
standards applicable to custodians in the relevant market in which such Eligible
Foreign Custodian operates, after considering all factors relevant to the
safekeeping of such assets, including, without limitation, those contained in
paragraph (c)(1) of the Rule; (b) determine that the Fund's foreign custody
arrangements with each Eligible Foreign Custodian are governed by a written
contract with the Custodian which will provide reasonable care for the Fund's
assets based on the standards specified in paragraph (c)(1) of the Rule; (c)
determine that each contract with an Eligible Foreign Custodian shall include
the provisions specified in paragraph (c)(2)(i)(A) through (F) of the Rule or,
alternatively, in lieu of any or all of such (c)(2)(i)(A) through (F)
provisions, such other provisions as BNY determines will provide, in their
entirety, the same or a greater level of care and protection for the assets of
the Fund as such specified provisions; (d) monitor pursuant to the Monitoring
System the appropriateness of maintaining the assets of the Fund with a
particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of the Rule
and the performance of the contract governing such arrangement; and (e) advise
the Fund and the Fund's investment adviser, as soon as reasonably possible,
whenever BNY determines under the Monitoring System that an
arrangement (including, any material change in the contract governing such
arrangement) described in preceding clause (d) no longer meets the requirements
of the Rule.
2. For purposes of clause (d) of the preceding Section 1 of this Article,
BNY's determination of appropriateness shall not include, nor be deemed to
include, any evaluation of Country Risks associated with investment in a
particular country. For purposes hereof, "Country Risks" shall mean systemic
risks of holding assets in a particular country including but not limited to (a)
an Eligible Foreign Custodian's use of any depositories that act as or operate a
system or a transnational system for the central handling of securities or any
equivalent book-entries; (b) such country's financial infrastructure; (c) such
country's prevailing custody and settlement practices (but not the custody and
settlement practices of any Eligible Foreign Custodian whose custody and
settlement practices are not such prevailing practices); (d) nationalization,
expropriation or other governmental actions; (e) regulation of the banking or
securities industry; (f) currency controls, restrictions, devaluations or
fluctuations; and (g) market conditions which affect the orderly execution of
securities transactions or affect the value of securities.
ARTICLE IV.
REPRESENTATIONS
1. The Fund hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Fund, constitutes a valid and legally
binding obligation of the Fund enforceable in accordance with its terms, and, to
the Fund's knowledge, no statute, regulation, rule, order, judgment or contract
binding on the Fund prohibits the Fund's execution or performance of this
Agreement; (b) this Agreement has been approved and ratified by the Board at a
meeting duly called and at which a quorum was at all times present; and (c) the
Board or the Fund's Investment Adviser has considered the Country Risks
associated with investment in each Specified Country and will have considered
such risks prior to any settlement instructions being given to the Custodian
with respect to any other country.
2. BNY hereby represents that: (a) BNY is duly organized and existing
under the laws of the State of New York, with full power to carry on its
businesses as now conducted, and to enter into this Agreement and to perform its
obligations hereunder; (b) this Agreement has been duly authorized, executed and
delivered by BNY, constitutes a valid and legally binding obligation of BNY
enforceable in accordance with its terms, and, to BNY's knowledge, no statute,
regulation, rule, order, judgment or contract binding on BNY prohibits BNY's
execution or performance of this Agreement; (c) BNY has established and will
maintain the Monitoring System, and (d) BNY is a U.S. Bank as defined in
paragraph (a)(7) of the Rule.
ARTICLE V.
CONCERNING BNY
1. BNY shall not be liable under this Agreement for any costs, expenses,
damages, liabilities or claims, including attorneys' and accountants' fees,
sustained or incurred by, or asserted against, the Fund except to the extent the
same arises out of the failure of BNY to exercise the care, prudence and
diligence required by Section 2 of Article II hereof. In no event shall BNY be
liable to the Fund, the Board, or any third party for special, indirect or
consequential damages, or for lost profits or loss of business, arising in
connection with this Agreement.
2. The Fund shall indemnify BNY and hold it harmless from and against any
and all costs, expenses, damages, liabilities or claims, including attorneys'
and accountants' fees, sustained or incurred by, or asserted against, BNY by
reason or as a result of any action or inaction, or arising out of BNY's
performance hereunder, provided that the Fund shall not indemnify BNY to the
extent any such costs, expenses, damages, liabilities or claims arises out of
BNY's failure to exercise the reasonable care, prudence and diligence required
by Section 2 of Article II hereof, nor shall the Fund be liable to BNY or any
third party for special, indirect or consequential damages, or for lost profits
or loss of business arising in connection with this Agreement.
3. For its services hereunder, the Fund agrees to pay to BNY such
compensation and out-of-pocket expenses as shall be mutually agreed.
4. BNY shall have only such duties as are expressly set forth herein. In
no event shall BNY be liable for any Country Risks associated with investments
in a particular country.
ARTICLE VI.
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Fund and
BNY as a foreign custody manager, and no provision in the Custody Agreement
between the Fund and the Custodian shall affect the duties and obligations of
BNY hereunder, nor shall any provision in this Agreement affect the duties or
obligations of the Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to BNY, shall be sufficiently given if received by it
at its offices at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as BNY may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if received
by it at its offices at 0000 X. Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000 or
at such other place as the Fund may from time to time designate in writing.
4. 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 shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties. This Agreement shall extend to and
shall be binding upon the parties hereto, and their respective successors and
assigns; provided however, that this Agreement shall not be assignable by either
party without the written consent of the other.
5. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. The Fund and BNY hereby consent to the jurisdiction of a state or
federal court situated in New York City, New York in connection with any dispute
arising hereunder. The Fund and BNY each hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
objection which it may now or hereafter have to the laying of venue of any such
proceeding brought in such a court and any claim that such proceeding brought in
such a court has been brought in an inconvenient forum. The Fund and BNY each
hereby irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting
solely on behalf of the Fund and no contractual or service relationship shall be
deemed to be established hereby between BNY and any other person by reason of
this Agreement.
7. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
8. This Agreement shall terminate simultaneously with the termination of
the Custody Agreement between the Fund and the Custodian, and may otherwise be
terminated by either party giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than thirty
(30) days after the date of such notice.
9. A copy of the Declaration of Trust of the each Fund that is a
Massachusetts Business Trust is on file with the Secretary of the Commonwealth
of Massachusetts, and notice is hereby given that this instrument is executed on
behalf of the Board of Trustees of the Fund as Trustees and not individually and
that the obligations of this instrument are not binding upon any of the Trustees
or shareholders individually but are binding only upon the assets and property
of the Fund; provided, however, that the Declaration of Trust of the Fund
provides that the assets of a particular Series of the Fund shall under no
circumstances be charged with liabilities attributable to any other Series of
the Fund and that all persons extending credit to, or contracting with or having
any claim against a particular Series of the Fund shall look only to the assets
of that particular Series for payment of such credit, contract or claim.
IN WITNESS WHEREOF, the Fund and BNY have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
first above written.
By: \s\ Xxxxxxx X. Xxxxxx
--------------------------------
on behalf of each Fund identified on
Schedule 1 hereto
THE BANK OF NEW YORK
By: \s\ Xxxxxx X. XxXxxx
------------------------------
Title: Xxxxxx X. XxXxxx
Vice President
FORM OF AMENDED SCHEDULE 1
to
FOREIGN CUSTODY MANAGER AGREEMENT
FUND EFFECTIVE DATE
---- --------------
ING EQUITY TRUST
ING Convertible Fund June 9, 2003
ING Disciplined LargeCap Fund June 9, 2003
ING Equity and Bond Fund June 9, 2003
ING Financial Services Fund June 9, 2003
ING Growth Opportunities Fund June 9, 2003
ING LargeCap Growth Fund June 9, 2003
ING Large Company Value Fund June 9, 2003
ING MidCap Opportunities Fund June 9, 2003
ING MidCap Value Fund June 9, 2003
ING Principal Protection Fund June 2, 2003
ING Principal Protection Fund II June 2, 2003
ING Principal Protection Fund III June 2, 2003
ING Principal Protection Fund IV June 2, 2003
ING Principal Protection Fund V June 2, 2003
ING Principal Protection Fund VI June 2, 2003
ING Principal Protection Fund VII May 1, 2003
ING Principal Protection Fund VIII July 10, 2003
ING Real Estate Fund June 9, 2003
ING SmallCap Opportunities Fund June 9, 2003
ING SmallCap Value Fund June 9, 2003
ING Tax Efficient Equity Fund June 9, 2003
ING FUNDS TRUST
ING Classic Money Market Fund April 7, 2003
ING GNMA Income Fund April 7, 2003
ING High Yield Bond Fund April 7, 2003
ING High Yield Opportunity Fund April 7, 2003
ING Intermediate Bond Fund April 7, 2003
ING Lexington Money Market Trust April 7, 2003
ING Money Market Fund April 7, 2003
ING National Tax-Exempt Bond Fund April 7, 2003
ING Strategic Bond Fund April 7, 2003
ING GET FUND
ING GET Fund - Series V March 13, 2003
ING INVESTMENT FUNDS, INC.
ING MagnaCap Fund June 9, 2003
ING INVESTORS TRUST
ING Alliance Mid Cap Growth Portfolio January 6, 2003
ING Eagle Asset Value Equity Portfolio January 6, 2003
ING UBS U.S. Balanced Portfolio January 6, 2003
ING FMR(SM) Diversified Mid Cap Portfolio January 6, 2003
ING Xxxxxxx Xxxxx Internet Tollkeeper(SM) Portfolio January 6, 2003
ING Limited Maturity Bond Portfolio January 6, 2003
ING Liquid Assets Portfolio January 6, 2003
ING Xxxxxxxx Equity Opportunities Portfolio January 6, 2003
ING Mercury Focus Value Portfolio January 6, 2003
ING Mercury Fundamental Growth Portfolio January 6, 2003
ING Salomon Brothers All Cap Portfolio January 6, 2003
ING Salomon Brothers Investors Portfolio January 6, 2003
ING AIM Mid Cap Growth Portfolio January 6, 2003
Fund for Life Series January 6, 2003
ING MFS Mid Cap Growth Portfolio January 13, 2003
ING MFS Research Portfolio January 13, 2003
ING MFS Total Return Portfolio January 13, 2003
ING X. Xxxx Price Capital Appreciation Portfolio January 13, 2003
ING Developing World Portfolio January 13, 2003
ING Hard Assets Portfolio January 13, 2003
ING Capital Guardian Managed Global Portfolio January 13, 2003
ING International Portfolio January 13, 2003
ING JPMorgan Xxxxxxx International Enhanced EAFE January 13, 2003
Portfolio
ING Xxxxxxx Growth Portfolio January 13, 2003
ING Janus Growth and Income Portfolio January 13, 2003
ING Janus Special Equity Portfolio January 13, 2003
ING PIMCO Core Bond Portfolio January 13, 2003
ING Xxx Xxxxxx Global Franchise Portfolio January 13, 2003
ING X. Xxxx Price Equity Income Portfolio January 13, 2003
ING Capital Guardian Large Cap Value Portfolio January 13, 2003
ING Capital Guardian Small Cap Portfolio January 13, 2003
ING JPMorgan Xxxxxxx Small Cap Equity Portfolio January 13, 2003
ING Xxx Xxxxxx Real Estate Portfolio January 13, 2003
ING Xxx Xxxxxx Growth and Income Portfolio January 13, 2003
ING MAYFLOWER TRUST
ING Growth + Value Fund June 9, 2003
ING MUTUAL FUNDS
ING Foreign Fund July 1, 2003
ING Global Equity Dividend Fund* September 2, 2003
ING VARIABLE INSURANCE TRUST
ING GET U.S. Core Portfolio - Series 1 June 13, 2003
ING SERIES FUND, INC.
Brokerage Cash Reserves June 2, 2003
ING Aeltus Money Market Fund June 2, 2003
ING Balanced Fund June 2, 2003
ING Bond Fund June 2, 2003
ING Classic Principal Protection Fund June 2, 2003
ING Classic Principal Protection Fund II June 2, 2003
ING Classic Principal Protection Fund III June 2, 2003
ING Classic Principal Protection Fund IV June 2, 2003
ING Government Fund June 2, 2003
ING Growth Fund June 9, 2003
ING Growth & Income Fund June 9, 2003
ING Index Plus LargeCap Fund June 9, 2003
ING Index Plus MidCap Fund June 9, 2003
ING Index Plus Protection Fund June 2, 2003
ING Index Plus SmallCap Fund June 9, 2003
ING Small Company Fund June 9, 2003
ING Strategic Allocation Balanced Fund June 2, 2003
ING Strategic Allocation Growth Fund June 2, 2003
ING Strategic Allocation Income Fund June 2, 2003
ING Technology Fund June 2, 2003
ING Value Opportunity Fund June 9, 2003
* This Amended Schedule 1 will be effective with respect to this Fund upon
the effective date of the initial Registration Statement with respect to
the Fund.
AMENDED SCHEDULE 2
SPECIFIED COUNTRIES
COUNTRY EFFECTIVE DATE
------- --------------
Xxxxxxxxx Xxxxxxx 0, 0000
Xxxxxxxxx January 6, 0000
Xxxxxxx January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxxxxxx January 6, 0000
Xxxxxxx January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxxx January 6, 2003
Xxxxxxxx Xxxxxxx 0, 0000
Xxxxxx January 6, 0000
Xxxxxxxx January 6, 0000
Xxxxxx January 6, 2003
Xxxxxx Xxxxxxx Xxx 00, 0000
Xxxxx January 6, 2003
China January 6, 0000
Xxxxxxxx January 6, 0000
Xxxxx Xxxx January 6, 0000
Xxxxxxx January 6, 0000
Xxxxxx January 6, 2003
Xxxxx Xxxxxxxx Xxxxxxx 0, 0000
Xxxxxxx January 6, 0000
Xxxxxxx January 6, 2003
Egypt January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxxx January 6, 0000
Xxxxxx January 6, 0000
Xxxxxxx January 6, 2003
Xxxxx Xxxxxxx 0, 0000
Xxxxxx January 6, 2003
Hong Kong January 6, 2003
Hungary January 6, 2003
Iceland May 12, 2003
India January 6, 2003
Indonesia January 6, 0000
Xxxxxxx January 6, 2003
Israel January 6, 0000
Xxxxx January 6, 2003
Ivory Coast January 6, 2003
Jamaica May 12, 0000
Xxxxx January 6, 2003
Jordan January 6, 2003
Kenya January 6, 2003
Xxxxxxxxx Xxxxxxx 0, 0000
Xxxxxxxxxx January 6, 0000
Xxxxxxxx January 6, 2003
Mauritius January 6, 2003
Mexico January 6, 2003
Morocco January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxxxxxxx January 6, 2003
New Zealand January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxx January 6, 2003
Xxxx Xxxxxxx 0, 0000
Xxxxxxxx January 6, 2003
Palestine May 12, 2003
Xxxxxx Xxxxxxx 0, 0000
Xxxx January 6, 0000
Xxxxxxxxxxx January 6, 2003
Xxxxxx Xxxxxxx 0, 0000
Xxxxxxxx January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxx January 6, 2003
Singapore January 6, 2003
Xxxxxxxx Xxxxxxx 0, 0000
Xxxxxxxx January 6, 0000
Xxxxx Xxxxxx January 0, 0000
Xxxxx Xxxxx Xxxxxxx 0, 0000
Xxxxx January 6, 2003
Sri Lanka January 6, 2003
Xxxxxxxxx Xxxxxxx 0, 0000
Xxxxxx January 6, 0000
Xxxxxxxxxxx January 6, 2003
Xxxxxx Xxxxxxx 0, 0000
Xxxxxxxx January 6, 2003
Transnational January 6, 0000
Xxxxxx January 6, 2003
Xxxxxxx Xxxxxxx 0, 0000
Xxxxxx Xxxxxxx January 6, 0000
Xxxxxxx January 6, 2003
Xxxxxxxxx Xxxxxxx 0, 0000
Xxxxxxx May 12, 0000
Xxxxxx January 6, 2003
Zimbabwe January 6, 2003
