SERVICES AGREEMENT
This Services Agreement ("Agreement") is made this 1st day of January,
2001, by and between ING North America Insurance Corporation, Inc., a
corporation organized and existing under the laws of the state of Delaware (the
"Service Provider"), and Aetna Insurance Company of America, an insurance
company organized and existing under the laws of the state of Florida (referred
to herein as the "Company").
RECITALS
WHEREAS, the parties are affiliates under the common control of ING Groep,
N.V.; and
WHEREAS, the Service Provider possesses certain resources, including
experienced personnel, facilities and equipment, which enables it to provide
certain administrative, management, professional, advisory, consulting and other
services to the others ("Services"); and
WHEREAS, the Company desires to engage the Service Provider from time to
time to perform certain Services on its behalf as described with particularity
in Exhibit A attached hereto; and
WHEREAS, the Company contemplates that such an arrangement will achieve
operating economies, synergies and expense savings, and improve services to the
benefit of its policyholders or contractholders; and
WHEREAS, the parties wish to identify the Services to be provided, to
provide a method for identifying the charges to be assessed and the compensation
to be paid for the Services, and to assure that all charges for the Services are
reasonable and in accordance with the laws and regulations of the states in
which each of them is domiciled;
NOW, THEREFORE' in consideration of these premises and of the mutual
promises set forth herein, and intending to be legally bound hereby, the parties
agree as follows:
1. SERVICES.
(a) Subject to the terms, conditions, and limitations of this Agreement,
the Service Provider will perform for the Company such of the Services described
in Exhibit A, attached hereto and incorporated herein by this reference, as the
Company may from time to time request.
(b) The Service Provider shall employ all operating and management
personnel necessary to provide the Services required by this Agreement. The
Service Provider shall also maintain such facilities and equipment as it deems
reasonably necessary in order to provide the Services required by the Agreement.
Subject to the terms (including any limitations and restrictions) of any
applicable software or hardware licensing agreement then in effect between the
Service Provider and any licensor, the Service Provider shall, upon termination
of this Agreement, grant to the Company a perpetual license, without payment of
any fee, in any electronic data processing software developed or used by the
Service Provider in connection with the Services provided to the Company, if
such software is not commercially available and is necessary, in the
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Company's reasonable judgment, for the Company to perform the functions provided
by the Service Provider hereunder after termination of this Agreement.
(c) The parties agree that all documents, reports, records, books, files
and other materials relative to the Services performed for the Company under
this Agreement shall be the sole property of the Company. The Service Provider
shall keep and maintain or cause to be kept and maintained full and complete
documentation and records related to the Services provided including the
accounting necessary to support charges for Services. The Service Provider shall
maintain custody of said documentation and records and shall make them available
to the Company and the appropriate insurance regulator of the Company upon
request.
2. CHARGES FOR SERVICES.
(a) It is the intention of the parties that the charges for the Services
provided under this Agreement be determined in accordance with fair and
reasonable standards and that no party realize a profit nor incur a loss as a
result of the Services rendered pursuant to this Agreement.
(b) The Company agrees to reimburse the Service Provider for all direct
costs incurred on behalf of the Company and for all indirect costs, which may be
charged to the Company as follows:
(i) "Direct Costs" include costs incurred by the Service Provider
for Services provided directly to the Company, including but not limited to: (a)
All costs incident to any employee or employees who are employed in rendering
Services to the Company, such as salary, payroll taxes, and benefits and (b) the
cost of other reasonable and necessary business expenses incurred by employees
who are employed in rendering Services to the Company such as training, travel
and lodging. Direct Costs shall be charged in accordance with reasonable
functional cost studies and/or other information and methodologies used by the
Service Provider for internal cost distribution including, where appropriate, an
analysis of time spent by each employee providing Services to the Company and/or
the percentage of administrative systems utilized. Data for this analysis will
be collected through tracking of unit costs of Services, through time studies
conducted periodically, or through other methods consistent with customary
insurance accounting practices consistently applied. Annually, the bases for
determining direct costs shall be modified and adjusted by mutual agreement of
the Service Provider and the Company, where necessary or appropriate, to fairly
and equitably reflect the actual cost incurred by the Service Provider on behalf
of the Company.
(ii) "Indirect Costs" include all other costs incurred by the Service
Provider in rendering Services to the Company, including but not limited to the
cost of rent or depreciation of office space, utilities, office equipment, and
supplies utilized by employees who are employed in rendering Services to the
Company. Indirect costs shall be charged to the Company based on the proportion
of total direct costs chargeable to the Company under subparagraph (i), herein.
In other words, if the direct costs chargeable to the Company represents 20% of
the Service Provider's total direct costs, then 20% of the Service Provider's
indirect costs will be charged to the Company.
(c) The charges for Direct Costs and Indirect Costs referred to above
shall be made by the Service Provider on a monthly or quarterly basis as
appropriate for the particular Service.
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(d) In the event the Service Provider or the Company should discover upon
review of its accounting by its internal auditors, independent auditor, any
state insurance department, or other regulatory agency, that an amount charged
for Services provided hereunder was erroneous, the party discovering the error
will give prompt notice of such error to the affected party under this
Agreement. Such notice shall contain a description of the accounting error,
corrective action and supporting documentation. Any amounts owing, as a result
of the correction shall be paid within sixty (60) days after notice has been
given.
(e) The Company stall have the right to inspect and audit, upon
reasonable notice to the Service Provider, all books and records of the Service
Provider related to the provision of the Services so as to verify the accuracy
of all expenses reimbursed under this Agreement.
3. TERM.
This Agreement shall be effective on the first day of January, 2001, and
shall end on the 31st day of December, 2001. This Agreement shall be
automatically renewed on the first day of each calendar year thereafter for a
twelve-month period under the same terms and conditions, subject to the
provisions for termination set forth herein.
4. TERMINATION.
This Agreement may be terminated by the Service Provider or by the Company
by providing thirty (30) days' written notice to that effect addressed to the
other party. Any Services provided following the effective date of termination
which, by their nature, continue after termination shall be provided under the
same terms and conditions which prevailed at the time of such notice.
5. STANDARD OF SERVICE.
The Service Provider shall perform the Services in a competent and
professional manner according to standards agreed upon by the Service Provider
and the Company. The Service Provider agrees that it will exercise due diligence
to abide by and comply with all laws, statutes, rules, regulations, and orders
of any governmental authority in the performance of its Services under this
Agreement. The Service Provider will conduct its business and perform its
obligations in a manner which will not cause the possible revocation or
suspension of the Company's Certificate(s) of Authority or cause the Company to
sustain any fines, penalties, or other disciplinary action of any nature
whatsoever.
6. LIMITATION OF AUTHORITY.
The Company shall retain ultimate control and responsibility for all
Services that it has delegated to the Service Provider under this Agreement. In
no event shall the Services involve control of the management of the business
and affairs of the Company. The Service Provider shall provide Services
hereunder as an independent contractor, and shall act hereunder so as to assure
the separate operating identity of the Company. While rendering Services to the
Company pursuant to this Agreement, the Service Provider, its officers and
employees shall not at any time or for any purpose be considered agents of the
Company unless otherwise expressly agreed to by the parties. Under no
circumstances shall the Services provided pursuant to this
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Agreement be deemed to be those of a third party administrator pursuant to any
applicable state statutes.
7. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify, defend and hold harmless
the Service Provider, its officers, directors and employees, from and against
any and all claims, demands, losses, liabilities, actions, lawsuits and other
proceedings, judgements and awards, and costs and expenses (including reasonable
attorneys' fees), arising directly or indirectly, in whole or in part out of any
action taken by the Service Provider within the scope of its duties or authority
hereunder, excluding only such of the foregoing as result from the negligence or
willful acts or omissions of the Service Provider, its officers, directors,
agents and employees. The provisions of this section shall survive termination
of this Agreement.
(b) The Service Provider hereby agrees to indemnify, defend and hold
harmless the Company and its officers, directors and employees from and against
any and all claims, demands, losses, liabilities, action, lawsuits arid other
proceedings, judgments and awards, fines and penalties, and costs and expenses
(including reasonable attorneys' fees), arising directly or indirectly, in whole
or in part, out of the negligence or any willful act or omission of the Service
Provider or of any of its officers, directors, agents or employees, in
connection with this Agreement or the performance of the Service Provider's
Services hereunder, or out of any action taken by the Service Provider beyond
the scope of the Service Provider's duties or authority hereunder. The
provisions of this section shall survive termination of this Agreement.
8. NOTICES.
All notices, requests, and communications required or permitted under this
Agreement shall be in writing and deemed given when addressed to the applicable
address set forth in Exhibit B attached hereto and (i) delivered by hand to an
officer of the other party, (ii) deposited with the U.S. Postal Service, as
first-class certified or registered mail, postage prepaid, or (iii) deposited
with an overnight courier. Any notice of a change of address shall be given in
the same manner.
9. COOPERATION.
Each party to this Agreement shall cooperate with the other party, and with
appropriate governmental authorities (including, without limitation, the
Securities and Exchange Commission, the National Association of Securities
Dealers and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
10. ARBITRATION.
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in accordance with the Rules
of the American Arbitration Association, and judgment upon the award maybe
entered in any Court having jurisdiction thereof.
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11. WAIVER.
No waiver of any provision of this Agreement shall be deemed, or shall
constitute, waiver of any other provision, whether or not similar, nor shall any
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver. Failure of any party to
exercise or delay in exercising any right or power granted under this Agreement
shall not operate as a waiver of any such right or power.
12. MISCELLANEOUS.
This Agreement may not be assigned by either party without the prior
written consent of the other party. This Agreement constitutes the entire
agreement of the parties hereto. This Agreement may be amended only by a written
instrument executed by both parties. If any portion of this Agreement is invalid
under any applicable statute or rule of law, it shall not affect the remainder
of this Agreement which shal1 remain valid and binding. This Agreement shall be
binding on the parties, their legal representatives and successors. This
Agreement shall be construed in accordance with and governed by the laws of the
state in which the Services are provided, without regard to principles of
conflict of laws.
13. COUNTERPARTS.
This Agreement may be executed in separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
ING NORTH AMERICA INSURANCE CORPORATION, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: General Manager and CEO, US Retail
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Financial Services
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AETNA INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
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Title: Vice President and Corporate Controller
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LIST OF EXHIBITS
A-1 Underwriting and New Business Processing Services
A-2 Licensing and Contracting Services
A-3 Policyowner and Claims Processing Services
A-4 Actuarial Services
A-5 Information Services
A-6 Legal, Risk Management and Compliance Services
A-7 Human Resource Services
A-8 Marketing and Sales Promotion Services
A-9 Tax Services
A-10 Reinsurance Management and Administration Services
A-11 Management Services
A-12 Printing, Record, File, Mail and Supply Services
A-13 Accounting, Finance and Treasury Services
B Addresses for Notices
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Exhibit A-1
Underwriting and New Business Processing Services
Services related to underwriting and new business processes including, but not
limited to:
1. Underwriting and risk consulting services.
2. Analysis of underwriting standards.
3. Assistance and advice in the development of appropriate underwriting
standards in accordance with all laws and regulations of the Company's
state.
4. Perform underwriting in accordance with Company guidelines.
5. Provide medical and/or technical support and advice to underwriting.
6. Approve for issue all applications which meet underwriting criteria.
7. Process all approved applications and issue and deliver policies to
policyholders.
8. Financial and other reporting in connection with underwriting and new
business processing.
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Exhibit A-2
Licensing and Contracting Services
Services related to producer licensing and contracting including, but not
limited to:
1. Assist with pre-appointment investigations of producers.
2. Administer producer licenses, contracts and producer compensation and
maintain a computer database for license and contract status.
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Exhibit A-3
Policyowner and Claims Processing Services
Services related to policyowner and claims processing including, but not limited
to:
1. Xxxx policyholders.
2. Collect premiums.
3. Respond to customer inquiries by phone or letter.
4. Administer policy changes.
5. Administration and support for claims.
6. Process claims and/or render legal, medical or technical support and
advice relating to the processing, settlement and payment of claims.
7. Surrender, lapse and maturity processing.
8. Distribute benefits.
9. Financial and other reporting in connection with policyowner and
processing services.
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Exhibit A-4
Actuarial Services
Actuarial related services including but not limited to:
1. Actuarial consulting services, including clerical, technical and
product actuarial support and product development support.
2. Prepare actuarial reports, opinions and memoranda and assist with
asset/liability management and cash flow testing.
3. Conduct product experience studies.
4. Prepare reserve calculations and valuations.
5. Develop new products.
6. Evaluate product performance versus expectations.
7. Financial and other reporting in connection with actuarial services.
10
Exhibit A-5
Information Services
Services related to information management including, but not limited to:
1. Professional, technical, supervisory, programming and clerical support
for information services.
2. Informational and computer services may be in the nature of
applications and programming support, enhancing existing systems,
helping to install new systems.
3. Develop data processing systems strategy.
4. Implement systems strategy.
5. Program computers.
6. Provide data center services, including maintenance and support of
mainframe and distribution process hardware and software.
7. Standard systems for product administration, accounts payable,
accounting and financial reporting, human resource management and
inventory control.
8. Manage data and voice communications systems.
9. Manage local area networks and other desktop software and systems.
10. Provide data security and maintain effective disaster recovery
program.
11. Purchase hardware, software and supplies.
Subject to the terms (including any limitations and restrictions) of any
applicable software or hardware licensing agreement then in effect between
Service Provider and any licensor, Service Provider shall, upon termination of
this Agreement, grant to Company a perpetual license, without payment of any
fee, in any electronic data processing software developed or used by the Service
Provider in connection with the Services provided to the Company hereunder if
such software is not commercially available and is necessary, in the Company's
reasonable judgment, for the Company to perform subsequent to termination the
functions provided by the Service Provider hereunder.
11
Exhibit A-6
Legal, Risk Management and Compliance Services
Services related to legal, risk management and compliance including, but not
limited to:
1. Provide counsel, advice and assistance in any matter of law, corporate
governance and governmental relations, including advisory and
consulting services, in connection with the maintenance of corporate
existence, licenses, dealing with regulatory agencies, development of
products, contracts and legal documents, product approvals,
registration and filing of insurance and securities products, handling
of claims and matters involving legal controversy, assist with dispute
resolution, select, retain and manage outside counsel and provide
other legal services as reasonably required or requested.
2. Provide assistance in any matter relating to risk management,
including procurement of fidelity bond insurance, blanket bonds,
general liability insurance, property damage insurance, directors' and
officers' liability insurance, workers compensation, and any other
insurance purchased by the Company.
3. Assist in the development and maintenance of a corporate compliance
program and a state insurance fraud reporting program. Assist in
maintaining appropriate records and systems in connection with the
Company's compliance obligations under application state law.
4. Provide assistance with internal audit including review of operational
procedures, performance of compliance tests, and assist to independent
auditors.
12
Exhibit A-7
Human Resource Services
Services related to human resource management including, but not limited to:
1. Personnel recruiting and support services.
2. Design and implementation of human resources training.
3. Compensation studies and benefits consulting.
4. Support employee communications.
5. Payroll services.
6. Benefits compensation and design and administration.
7. Employee relations.
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Exhibit A-8
Marketing and Sales Promotion Services
Services related to marketing and sales promotion including, but not limited to:
1. Prepare sales promotional items, advertising materials and artwork,
design, text and articles relevant to such work, including clerical,
technical and supervisory support and related communications.
2. Support general communications with producers.
3. Conduct formal insurance market research.
4. Develop sales illustrations, advertising materials, and software for
products, in compliance with state laws.
5. Design and implement training programs, including product and industry
developments and legal compliance.
6. Distribute to employees and/or agents underwriting guidelines for the
products, where applicable.
7. Analyze and develop compensation and benefit plans for general agents
and agents.
8. Plan and support of producer conferences.
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Exhibit A-9
Tax Services
Services related to tax including, but not limited to:
1. Maintenance of tax compliance, including tax return preparation and
review of financial statement tax provisions.
2. Management of tax and audit appeals, including processing information
requests, protest preparation, and participation in any appeals
conference.
3. Direction of tax research and planning, including research of
compliance issues for consistency, development of tax strategies and
working with new legislative proposals.
4. Administration of tax liens, levies and garnishment of wages of
Company employees and agents
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Exhibit A-10
Reinsurance Management and Administration Services
Services related to reinsurance management and administration including, but not
limited to:
1. Advise with respect to reinsurance retention limits.
2. Advice and support with respect to negotiation of reinsurance
treaties.
3. Advice and support with respect to the management of reinsurer
relationships.
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Exhibit A-11
Management Services
Services related to general management including, but not limited to:
1. Consultative and advisory services to the Company's senior executive
officers and staff with respect to conduct of the Company's business
operations and the execution of directives and resolutions of the
Company's Board of Directors pertaining to business operations and
functions, including provision of personnel to serve as officers and
directors of Company.
2. Consultation and participation in the Company's strategic planning
process; the development of business goals, objectives and policies;
the development of operational, administrative and quality programs;
preparation of financial and other reports; and the coordination of
such processes, goals, objectives, policies and programs with those of
the holding company.
3. Advice and assistance with respect to maintenance of the Company's
capital and surplus, the development and implementation of financing
strategies and plans and the production of financial reports and
records.
4. Representation of the Company's interests at government affairs and
industry meetings; participation in the deliberation and affairs of
trade associations and promotion of the Company's products and
relationships with the public.
5. Consultative, advisory and administrative services to the Company's
senior executive officers and staff in respect to development,
implementation and administration of human resource programs and
policies, the delivery of communications and information to employees
regarding enterprise plans, objectives and results; and the
maintenance of employee relations, morale and developmental
opportunities.
6. Direction and performance of internal audits and arrangement for
independent evaluation of business processes and internal control.
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Exhibit A-12
Printing, Record, File, Mail and Supply Services
Services related to printing, records, files, mail and supplies including, but
not limited to:
Printing, record, file, mail and supply services including, maintaining
policy files; document control; production and distribution of standard
forms, stationary, business cards and other material; arrangement of
warehouse storage space; supply fulfillment; mail processing, delivery and
shipping; participation in purchasing agreements; retrieval and production
of documents for regulatory examinations and litigation; and development
and administration of record retention programs.
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Exhibit A-13
Accounting, Finance and Treasury Services
Services related to accounting, finance and treasury including, but not limited
to:
1. Accounts Payable: Making vendor payments, monitoring recurring
payments, processing stop payments, preparation and filing sales and
use tax reports and returns, responding to questions from vendors,
processing travel and expense reports, maintaining check stock and
providing copies of check images to the Companies.
2. Fixed Assets: Accounting for real estate transactions, maintaining the
fixed asset records and processing payments for property taxes.
3. General Ledger: Processing journal entries, processing expense
allocations, establishing and maintaining accounts and cost centers,
processing intercompany transactions and processing the monthly
closing.
4. Financial Reporting: Generating applicable monthly, quarterly and
annual financial statements on statutory, US GAAP, tax and ING (Dutch)
GAAP bases; monitoring changes to statutory, US GAAP, tax and ING GAAP
accounting standards; corresponding and coordinating reporting to
regulatory agencies; coordinating the external audit with the external
auditors; coordinating external examinations with state insurance
departments; preparing and filing RBC calculations, preparing and
filing escheat reports, preparing and filing benefit plan reports, and
preparing other required regulatory filings.
5. Treasury/Cash Management: Maintaining banking relationships,
performing cash management procedures and short-term investment of
cash balances, and processing of wire transfers.
6. Other: Preparing budget and planning reports for finance shared
services, monitoring suspense account reports and other matters as
requested by each Company.
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Exhibit B
Address for Notice
ING North America Insurance Corporation, Inc.
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Aetna Insurance Company of America
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
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PROPOSED FEE SCHEDULE TO IIM/IICA INVESTMENT ADVISORY AGREEMENT
- TO BE SUBMITTED TO FL DOI FOR APPROVAL
ING INVESTMENT MANAGEMENT LLC
ADVISORY FEE SCHEDULE
AS OF JANUARY 1, 2003
ANNUAL ADVISORY FEES (based on assets under management):
(minimum is $50,000 for small portfolios)
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ASSET CLASS BASIS POINT FEE
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- Public bonds, MBS, CMO-A, Passthroughs, 25.0
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- Private Placements (investment grade) 25.0
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- Below Investment Grade 44.0
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- Derivatives / Residuals / CMO-B 65.0
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- Short Term Assets 25
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- Actively Managed Common Stock & Preferred Stock 52.0
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- Indexed Common Stocks 10.0
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- Commercial Mortgages 25.0
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- Real Estate Equity, Foreclosed Mortgages, and Problem Commercial Loans 69
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- portfolio management and investment services (applied to all assets under 1.8 B.P. FOR FIRST $1.0
management per portfolio) BILLION AND 0.8 B.P. FOR
THE EXCESS
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- separate accounts, segregated funds, and pension trusts 5.0 B.P. IN ADDITIONAL TO
THE ASSET CLASS CHARGE
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PRODUCTION FEE (one-time fee assessed at close of transaction):
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ASSET CLASS BASIS POINT FEE
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- private placements (investment grade) 23
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- private placements (international - investment 33
grade)
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- private placements (BIG) 40
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- commercial mortgages 16.7
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