Contract
Exhibit 24(b)(8.59)
INTERCOMPANY AGREEMENT
THIS AGREEMENT is executed as of the date below between ING Investment Management LLC (“IIM”), and ING Life Insurance and Annuity Company (“ILIAC”).
WHEREAS, IIM conducts an asset management business through various companies that provide investment advice to and perform administrative services for certain U.S. registered investment companies (“Funds”), including ING Investment, LLC (“IIL”), an investment adviser for certain Funds;
WHEREAS, ILIAC is an insurance company which offers a variety of insurance products, including variable annuities and which also provides administrative services to various tax-advantaged plans and programs established under Section 401(a), 403(b), 457 or 408 of the Internal Revenue Code (“Code”), certain non-qualified deferred compensation arrangements, and to custodial accounts established under Code Sections 403(b)(7) or 408 (collectively “non-insurance customers”);
WHEREAS, Funds advised by IIL are purchased for and held by separate accounts available through ILIAC insurance products and are also purchased for and held by nominees of non-insurance customers in appropriately designated omnibus accounts established with the Funds;
WHEREAS both IIM and ILIAC are indirect wholly owned subsidiaries of ING Groep, N.V, and, are under common control of such parent company;
WHEREAS both IIM and ILIAC desire to allocate the collective resources of ING’s United States operations in a manner which supports ILIAC’s insurance and non-insurance businesses; and
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Payments
IIM shall pay and/or shall cause its subsidiaries to pay, to ILIAC, within thirty (30) days after the end of each calendar month, the amounts derived from applying the annual rates listed in Schedule A against the average net assets invested in the Funds by ILIAC and by ILIAC non-insurance customers during the prior calendar month (the “Intercompany Payments”). The methodology used to determine the amount of each month’s Intercompany Payment shall be as follows:
(a) No later than the 20th calendar day of each calendar month, ILIAC or its designee shall provide, or cause to be provided, the average net assets of the prior calendar month to be used in calculating such ownership percentages and the assets shall
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be grouped by business line.
(b) On a fund by fund basis, the ILIAC average net assets will be calculated by applying ILIAC’s prior calendar month actual average net asset ownership percentage to the current calendar month’s average net assets.
(c) ILIAC average net assets shall be multiplied by the annual rates listed in Schedule A on a fund by fund basis and then adjusted for a monthly payment rate (annual rate * 1/calendar days in year * days in calendar month)
(d) The Intercompany Payment for any calendar month shall equal the sum of the fund by fund calculations described in sub-paragraph (c) above.
The Intercompany Payments shall be paid from IIM’s own resources, or those of its subsidiaries, and therefore shall not result in any increase in the expenses borne by the Funds or their shareholders. The rates listed in Schedule A will be reviewed at least once each calendar quarter and may be modified at any time by mutual written consent.
Intercompany Payments will be calculated and paid as hereinabove provided, and ILIAC shall account for such Intercompany Payments in conformity with customary insurance accounting practices. The books, accounts and records of each party shall be maintained so as to clearly and accurately disclose the precise details of the Intercompany Payments. IIM and/or its subsidiaries shall keep such books, records and accounts insofar as they pertain to the computation of the Intercompany Payments available upon reasonable notice for audit, inspection and copying by ILIAC and persons authorized by it or any governmental agency having jurisdiction over ILIAC during all reasonable business hours.
2. Required Disclosure
Each party will make all disclosures relating to this Agreement and the payments made hereunder, as required under applicable state or federal law, rule, or regulation, including any subsequent release, interpretation, rule or regulation of the SEC or any other regulatory or self-regulatory organization applicable to IIM or ILIAC in connection with this Agreement (“Applicable Law”).
3. Notices
Any notice required or permitted to be given by either party to the other shall be deemed sufficient if sent by registered or certified mail, postage prepaid, or overnight courier and addressed by the party giving notice to the other party at the last address furnished by the other party to the party giving notice: if to IIM: 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 in care of Chief Financial Officer with a copy to the Legal Department; if to ILIAC:. Xxx Xxxxxx Xxx, Xxxxxxx, XX 00000, in care of Chief Financial Officer with copy to Legal Department.
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4. Governing Law
This Agreement will be construed in accordance with the laws of the State of Delaware, without giving effect to any conflicts of law principles thereof.
5. Effective Date
This Agreement shall be effective as of January 1, 2010, and, unless terminated as provided, shall continue in force for one year from the effective date and thereafter from year to year, unless and until terminated in accordance with Section 8 below.
6. Entire Agreement and Amendment
This Agreement constitutes the entire agreement between the parties hereto and supersedes any prior agreement, draft or agreement or proposal with respect to the subject matter hereof. This Agreement or any part hereof may be changed or waived only by an instrument in writing signed by the party against which enforcement of such change or waiver is sought.
7. Assignment
This Agreement may not be assigned by either party without the written consent of the other.
| 8. | Termination | |
| (a) | Except under the circumstances described in paragraphs (b) and (c) of this Section 8, this Agreement may only be terminated by the mutual written agreement of the parties. If this Agreement is so terminated, the payments specified in Section 1 shall continue for a period of six (6) months, or a shorter period if agreed to by the parties. | |
| (b) | If a Change in Control (within the meaning assigned to that term below), of a party (the “Changed Party”) occurs, and if the other party (the “Remaining Party”) has not consented in writing to the continuation of this Agreement notwithstanding such Change in Control, then this Agreement may be terminated at the option of the Remaining Party by sending written notice to the Changed Party and the Intercompany Payments shall cease upon the Agreement’s termination. “Change in Control" means the occurrence of any one or more of the following: (i) the transfer of control of a party to another entity; or (ii) the consummation of a reorganization, merger, share exchange, consolidation, or sale or disposition of all or substantially all of the assets of a party; provided, however, that the occurrence of an event described in clauses (i) or (ii) above shall not constitute a Change in Control if either (a) the entity that acquires control of a party was already an Affiliate of the party prior to the | |
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| event, or (b) the parties remain Affiliates of one another immediately following the Change in Control. “Affiliate” means, with respect to a party, an entity that controls, is under common control, or is controlled by, such party. | |
| (c) | This Agreement will terminate automatically and the Intercompany Payments shall thereupon immediately cease if the Intercompany Payments are adjudged or otherwise determined to the satisfaction of both parties to be contrary to law. |
9. Severability
If any part, term or provision of this Agreement is held to be illegal, in conflict with any law or otherwise invalid, the remaining portion or portions shall be considered severable and not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be illegal or invalid.
| 10. | Miscellaneous |
| (a) The heading of each provision of this Agreement is for descriptive purposes only | |
| and | shall not be deemed to modify or qualify any of the rights or obligations set forth in each |
such provision.
(b) This Agreement may be executed in counterparts.
11. Force Majeure
IIM shall not be liable for losses caused directly or indirectly by government restrictions, exchange or market rulings, suspension of trading, war, acts of terrorism, strikes, failures of the mails or other communications systems, mechanical or electronic failure, failure of third parties to follow instructions, for other causes commonly known as “acts of God,” or for any other cause not reasonably within IIM’s control, whether or not such cause was reasonably foreseeable.
IN WITNESS WHEREOF, the parties have each duly executed this Agreement on this
22nd
day of December 2010.
| ING INVESTMENT MANAGEMENT LLC | ING LIFE INSURANCE | |
| AND ANNUITY COMPANY | ||
| By: /s/ Xxxxxx Xxxxxx | By:_/s/ Xxxxxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxxx | Name: Xxxxxxxxx Xxxxx | |
| Title: Senior Vice President | Title: | Vice President |
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Schedule A
Amended and Restated as of ______________________
As described in Section 1 ILIAC shall be paid at the rates set forth immediately below. In the case of funds of funds, except as otherwise indicated below, payments will not apply to the shares of the fund of funds held directly but will instead apply to shares of underlying funds held indirectly through the fund of funds at the rates specified for those underlying funds calculated in the same manner as if the underlying funds were held directly.
Payments listed in Schedule A shall not be made for assets contained in the following retirement plans:
- ING USA Annuity & Life Insurance Company "Equifund" Retirement Plan
- ING Direct 401(k) Savings Plan
- ING Americas Savings Plan & ESOP
- The 401(k) Plan for ILIAC Agents
- ING Clarion Partners, LLC 401(k) Profit Sharing Plan
- ING Clarion Real Estate Securities 401(k) Profit Sharing Plan
| FUND NAME | Payment | FUND NAME | Payment | |
| IIM Sub-advised Equity and | IIM Sub-advised Fixed Income | |||
| Balanced Funds | Funds | |||
| ING Balanced Fund | ____% | Brokerage Cash Reserves | ____% | |
| ING Balanced Portfolio | ____% | ING Classic Money Market Fund | ____% | |
| ING Core Equity Research Fund | ||||
| (F/K/A ING Growth and Income | ING Floating Rate Fund (Effective | |||
| Fund) | ____% | 8/17/10 | ) | ____% |
| ING GET U.S. Core Portfolio - Series | ||||
| ING Corporate Leaders 100 Fund | ____% | 10 | ____% | |
| ING Corporate Leaders Trust Fund | ING GET U.S. Core Portfolio - Series | |||
| Series B | ____% | 11 | ____% | |
| ING Euro STOXX 50 Index | ||||
| Portfolio (F/K/A ING Dow Xxxxx | ING GET U.S. Core Portfolio - Series | |||
| Euro STOXX 50 Index Portfolio) | ____% | 12 | ____% | |
| ING GET U.S. Core Portfolio - Series | ||||
| ING Equity Dividend Fund | ____% | 13 | ____% | |
| ING GET U.S. Core Portfolio - Series | ||||
| ING FTSE 100 Index Portfolio | ____% | 14 | ____% | |
| ING Global Natural Resources | ||||
| Fund | ____% | ING GET U.S. Core Portfolio - Series 5 | ____% | |
| ING Growth and Income Portfolio | ____% | ING GET U.S. Core Portfolio - Series 6 | ____% | |
| ING Growth Opportunities Fund | ____% | ING GET U.S. Core Portfolio - Series 7 | ____% | |
| ING Hang Seng Index Portfolio | ____% | ING GET U.S. Core Portfolio - Series 8 | ____% | |
| ING Index Plus LargeCap Fund | ____% | ING GET U.S. Core Portfolio - Series 9 | ____% | |
| ING Index Plus LargeCap Portfolio | ____% | ING Global Bond Fund | ____% | |
| ING Index Plus MidCap Fund | ____% | ING GNMA Income Fund | ____% | |
| ING Index Plus MidCap Portfolio | ____% | ING High Yield Bond Fund | ____% | |
| ING Index Plus SmallCap Fund | ____% | ING Intermediate Bond Fund | ____% | |
| ING Index Plus SmallCap Portfolio | ____% | ING Intermediate Bond Portfolio | ____% | |
| ING International Index Portfolio | ____% | ING Money Market Fund | ____% |
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| ING Index Plus International Equity | |||||
| Fund | (Effective 6/30/10) | ____% | ING Money Market Portfolio | ____% | |
| ING Principal Protection Fund XII | |||||
| ING International Value Fund | ____% | (1/1/10 to 2/16/10) | ____% | ||
| ING International Value Portfolio | ____% | ING Senior Income Fund | ____% | ||
| ING Japan TOPIX Index Portfolio | |||||
| (F/K/A ING Japan Equity Index | |||||
| Portfolio) | ____% | ||||
| ING MidCap Opportunities Fund | ____% | ING Limited Maturity Bond Portfolio | ____% | ||
| ING MidCap Opportunities | |||||
| Portfolio | ING Liquid Assets Portfolio | ____% | |||
| ING NASDAQ 100 Index Portfolio | ____% | ||||
| ING Opportunistic LargeCap Fund | |||||
| (1/10/10 to 8/21/10) | ____% | Fund of Funds | |||
| ING Opportunistic LargeCap | |||||
| Portfolio (1/1/10 to 8/20/10) | ____% | ING Capital Allocation Fund (1) | ____% | ||
| ING Xxxxxxx Global Large Cap | |||||
| Index 75% Portfolio (1/1/10 to | |||||
| 4/29/10 | ) | ____% | ING Diversified International Fund (1) | ____% | |
| ING Xxxxxxx Large Cap Growth | |||||
| Index Portfolio | ____% | ING Global Target Payment Fund (1) | ____% | ||
| ING Xxxxxxx Large Cap Index | ING Oppenheimer Active Allocation | ||||
| Portfolio | ____% | Portfolio (1) | ____% | ||
| ING Xxxxxxx Large Cap Value | |||||
| Index Portfolio | ____% | ING Strategic Allocation Funds (1) | ____% | ||
| ING Xxxxxxx Mid Cap Growth Index | |||||
| Portfolio | ____% | ING Strategic Allocation Portfolios (1) | ____% | ||
| ING Xxxxxxx Mid Cap Index | |||||
| Portfolio | ____% | ING Index Solution Portfolios (1) | ____% | ||
| ING Xxxxxxx Xxxxx Cap Index | |||||
| Portfolio | ____% | ING Solution 2015 Portfolio (1) | ____% | ||
| ING Small Company Fund | ____% | ING Solution 2025 Portfolio (1) | ____% | ||
| ING Small Company Portfolio | ____% | ING Solution 2035 Portfolio (1) | ____% | ||
| ING SmallCap Opportunities Fund | ____% | ING Solution 2045 Portfolio (1) | ____% | ||
| ING SmallCap Opportunities | |||||
| Portfolio | ____% | ING Solution 2055 Portfolio (1) | ____% | ||
| ING Tactical Asset Allocation Fund | ____% | ING Solution Income Portfolio (1) | ____% | ||
| ING WisdomTree Global High- | ING Solution Aggressive Growth | ||||
| Yielding Equity Index Portfolio | ____% | Portfolio (1) | ____% | ||
| ING Solution Conservative Portfolio (1) | ____% | ||||
| ING Focus 5 Portfolio (1/10/10 to | |||||
| 4/29/10 | ) | ____% | ING Solution Growth Portfolio (1) | ____% | |
| ING Global Resources Portfolio | ____% | ING Solution Moderate Portfolio (1) | ____% | ||
| ING Large Cap Growth Portfolio | |||||
| (Effective 6/12/10) | ____% | ||||
| American Funds Master Feeder | |||||
| ING Stock Index Portfolio | ____% | Funds | |||
| ING American Funds Asset Allocation | |||||
| Portfolio | N/A | ||||
| Third-Party Sub-advised Funds | ING American Funds Bond Portfolio | N/A | |||
| ING Alternative Beta Fund | ____% | ING American Funds Growth Portfolio | N/A | ||
| ING American Funds Growth-Income | |||||
| ING Asia-Pacific Real Estate Fund | ____% | Portfolio | N/A |
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| ING BlackRock Science and | ING American Funds International | ||
| Technology Opportunities Portfolio | ____% | Portfolio | N/A |
| ING Clarion Global Real Estate | |||
| Portfolio | ____% | ||
| ING Emerging Countries Fund | ____% | ||
| ING European Real Estate Fund | ____% | ||
| ING Global Equity Dividend Fund | ____% | ||
| ING Global Opportunities Fund | |||
| (F/K/A ING Foreign Fund) | ____% | ||
| ING Global Real Estate Fund | ____% | ||
| ING Global Value Choice Fund | ____% | ||
| ING Greater China Fund | ____% | ||
| ING Index Plus International Equity | |||
| Fund (1/1/10 to 6/29/10) | ____% | ||
| ING International Capital | |||
| Appreciation Fund | ____% | ||
| ING International Real Estate Fund | ____% | ||
| ING International SmallCap Multi- | |||
| Manager Fund | ____% | ||
| ING International Value Choice | |||
| Fund | ____% | ||
| ING Real Estate Fund | ____% | ||
| ING Russia Fund | ____% | ||
| ING SmallCap Value Multi- | |||
| Manager Fund (1/1/10 to 2/5/10) | ____% | ||
| ING U.S. Bond Index Portfolio | ____% | ||
| ING Value Choice Fund | ____% |
(1) For the fund of funds listed above, IIM will pay the amount stated in this Schedule A. IIM will not pay any amounts on assets in the underlying funds in these fund of funds. In addition, amounts due to ILIAC from IIM for these fund of funds shall be reduced by amounts due to ILIAC from Directed Services LLC (DSL) and/or its subsidiaries under the Intercompany Agreement between DSL and ILIAC with respect to the underlying funds in these fund of funds.
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