Exhibit 99.B(g)(3)
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”).
W I T N E S S
E T H :
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
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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 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
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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 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
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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 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
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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.
(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
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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.
(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.
(l) 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 (l) 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
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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 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 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-1
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-1 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
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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 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 Sarbanes-Oxley 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
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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
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
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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, 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,
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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.
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
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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.
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
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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 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
7337 E. Doubletree Ranch Road
Scottsdale, Arizona 85258
Attention: Michael J. Roland
Title: Chief
Financial Officer
if to BNY, at
The Bank of New York
100 Church Street, 10th Floor
New York, NY 10286
Attention: Martha B. Pierce
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.
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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.
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.
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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.
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By:
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/s/
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Michael J.
Roland
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Name:
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Michael J.
Roland
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Title:
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Executive Vice
President
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on behalf of
each Fund identified on Exhibit A attached hereto
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THE BANK OF NEW
YORK
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By:
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/s/
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Edward G. McGann
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Name:
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Edward G. McGann
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Title:
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Vice President
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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.