EXHIBIT 99-B.8.89
FIRST AMENDMENT TO
SELLING AND SERVICES AGREEMENT
AND
FUND PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT to the Selling and Services Agreement and Fund
Participation Agreement (First Amendment) is made and entered into as of the
_31st___ day of _December___________, 2003, by and between ING Life Insurance
and Annuity Company ("ING Life"), ReliaStar Life Insurance Company
("ReliaStar"), ReliaStar Life Insurance Company of New York ("ReliaStar New
York") (collectively, the "Insurer(s)"), ING Financial Advisers, LLC ("ING
Financial") (together with Insurers referred to collectively as "ING"), and
PIMCO Advisors Distributors LLC ("Distributor"). Capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Agreement (defined
below).
WHEREAS, ING and the Distributor are parties to a Selling and Services Agreement
and Fund Participation Agreement dated as of March 11, 2003 ("Agreement"); and
WHEREAS, the parties now desire to amend the Agreement to add an additional
class of shares of the Funds to be made available as investment options under
the Agreement; and
WHEREAS, the parties now desire to revise the reimbursement terms as set forth
herein.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, the
parties agree as follows:
1. Class A shares shall be referred to as "Class A Shares" and Class R shares
shall be referred to as "Class R Shares" and "shares" which previously meant
Class A shares shall now mean Class A shares and Class R shares collectively.
2. Section 4 of the Agreement entitled SERVICING FEES is deleted and replaced
with the following:
SERVICING FEES
The provision of shareholder and administrative services to Contract owners
or to the Plans shall be the responsibility of ING Financial, Insurers or
the Nominee and shall not be the responsibility of Distributor. The
Nominee, or Insurers on behalf of their Separate Accounts, will be
recognized as the sole shareholders of the shares purchased under this
Agreement. It is further recognized that there will be a substantial
savings in administrative expense and recordkeeping expenses by virtue of
having one shareholder rather than multiple shareholders. In consideration
of the administrative savings resulting from such arrangement, Distributor
agrees to pay to the applicable Insurer a servicing fee based on the annual
rate of ___% (____% quarterly) for Class A
shares, and ___% (___% quarterly) for Class R shares on equity funds (the
MMS Funds) and ____% (____% quarterly) for Class A and Class R shares on
the fixed income funds (the PIMS Funds) , in all cases, of the average net
assets invested in the Funds through the Contracts or through Insurer's
arrangements with Plans in each calendar quarter. After the end of each
quarter, the Insurer shall invoice the Distributor for the applicable
portion of the Servicing Fees. Distributor will make such payments to
Insurer within thirty (30) days after the end of each calendar quarter. If
required by a Plan or by applicable law, Insurer shall have the right to
allocate to a Plan or to Participant accounts in a Plan all or a portion of
such servicing fees, or to use servicing fees it collects from Distributor
to offset other fees payable by the Plan to Insurer.
3. Section 5 of the Agreement entitled 12B 1 FEES is deleted and replaced with
the following:
12B-1 FEES.
(a) Class A Shares Only --
To compensate ING Financial for its distribution of Class A Shares,
Distributor shall make quarterly payments to ING Financial based on the
annual rate of ____% (_____% quarterly) of the average net assets invested
in Class A shares of the Funds through the Contracts or through Insurer's
arrangements with Plans in each calendar quarter.
(b) Class R Shares Only --
To compensate ING Financial for its distribution of Class R Shares,
Distributor shall make quarterly payments to ING Financial based on the
annual rate of ____% (____% quarterly) of the average net assets invested
in Class R shares of the Funds through the Contracts or through Insurer's
arrangements with Plans in each calendar quarter.
(c) Both Class A and Class R Shares
Distributor will make such payments to ING Financial within thirty (30)
days after the end of each calendar quarter. Upon request, payment will be
accompanied by a statement showing the calculation of the fee payable to
ING Financial for the quarter and such other supporting data as may be
reasonably requested by ING Financial. If required by a Plan or by
applicable law, ING Financial shall have the right to allocate to a Plan or
to Participant accounts in a Plan all or a portion of such 12b-1 fees, or
to use 12b-1 fees it collects from Distributor to offset other fees payable
by the Plan to ING Financial. Payments pursuant to this Section shall only
be made by Distributor after receipt thereof by Distributor from the
applicable Trust pursuant to its 12b-1 Plan.
3. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
4. This Amendment may be executed in counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one
and the same Amendment.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amended
Agreement as of the date first above written.
ING LIFE INSURANCE AND ANNUITY PIMCO ADVISORS DISTRIBUTORS LLC
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
---------------------------- -------------------------------
Title: Vice President Title: Managing Director
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Date: 3-26-04 Date: 4-1-04
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RELIASTAR LIFE INSURANCE
COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
----------------------------
Date: 3-26-04
----------------------------
RELIASTAR LIFE INSURANCE
COMPANY OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
----------------------------
Title: Vice President
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Date: 3-26-04
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