SECOND AMENDED AND RESTATED FUND PARTICIPATION AGREEMENT
Exhibit 99-B.8.30
SECOND AMENDED AND RESTATED
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of this 2nd day of September, 2003, as amended |
and restated on May 17, 2004, and further amended and restated January 1, 2007, among ING |
USA ANNUITY AND LIFE INSURANCE COMPANY, a life insurance company organized |
under the laws of the State of Delaware and RELIASTAR LIFE INSURANCE COMPANY OF |
NEW YORK, a life insurance company organized under the laws of the State of New York |
(individually and together, the “Insurance Company”), each on behalf of itself and certain of its |
separate accounts (each, an “Account”), as listed in Appendix B to this Agreement, as such |
Appendix may be amended from time to time by mutual agreement in writing; ING |
INVESTORS TRUST (the “Trust”), an open-end management investment company that is a |
business trust organized under the laws of the Commonwealth of Massachusetts; ING |
INVESTMENTS, LLC (“ING”), a limited liability company organized under the laws of the |
State of Delaware; ING FUNDS DISTRIBUTOR, LLC (“IFD”), a limited liability company |
organized under the laws of the state of Delaware, which serves as the Trust’s distributor; |
AMERICAN FUNDS INSURANCE SERIES (“Series”), an open-end management investment |
company organized under the laws of the Commonwealth of Massachusetts; and CAPITAL |
RESEARCH AND MANAGEMENT COMPANY (“CRMC”), a corporation organized under |
the laws of the State of Delaware. |
WITNESSETH:
WHEREAS, Insurance Company has issued or proposes to issue to the public, now and |
in the future, certain multi-manager variable annuity contracts (the “Contracts”) as set forth in |
Appendix A to this Agreement, as such Appendix may be amended from time to time by mutual |
agreement in writing; |
WHEREAS, Insurance Company has established one or more Accounts, as set forth in |
Appendix B, under applicable state insurance law, for purposes of funding the Contracts and has |
or will register each Account with the United States Securities and Exchange Commission (the |
“Commission”) as a unit investment trust under the Securities Act of 1933 (the “1933 Act”) and |
the Investment Company Act of 1940 (the “1940 Act”) (unless the Account is exempt from such |
registration); |
WHEREAS, the Contracts, which are or will be registered by Insurance Company with |
the Commission for offer and sale (unless the Contract is exempt from such registration), will be |
in compliance with all applicable laws prior to being offered for sale; |
WHEREAS, the Series has received a “Mixed and Shared Funding Order” from the |
Commission granting relief from certain provisions of the 1940 Act and the rules thereunder to |
the extent necessary to permit shares of the Series to be sold to variable annuity and life |
insurance separate accounts of unaffiliated insurance companies; |
WHEREAS, the Series is divided into various funds (the “Master Funds”), and each |
Master Fund has its own assets and liabilities and invests in securities in accordance with its |
investment objectives and policies, as described in the registration statement for the Master |
Funds; |
WHEREAS, the Trust is divided into various series (the “Portfolios”), and each Portfolio |
has its own assets and liabilities and invests in securities in accordance with its investment |
objectives and policies, as described in the registration statement for the Portfolios; |
WHEREAS, certain Portfolios propose to hold as their only investment shares of a |
corresponding Master Fund as set forth in Appendix C, as such Appendix may be amended from |
time to time by mutual agreement in writing; |
WHEREAS, certain Master Funds (through the Portfolios) will serve as the underlying |
investments for the Contracts as set forth in Appendix A to this Agreement, as such Appendix |
may be amended from time to time by mutual agreement in writing; |
WHEREAS, CRMC is the investment adviser for the Master Funds; and |
WHEREAS, ING is the investment adviser for the Portfolios. |
NOW, THEREFORE, in consideration of the foregoing and of mutual covenants and |
conditions set forth herein and for other good and valuable consideration, Insurance Company, |
the Trust, ING, IFD, the Series and CRMC hereby agree as follows: |
1. | The Series and CRMC each represents and warrants to Insurance Company, the |
Trust, ING and IFD that: (a) a registration statement under the 1933 Act and under the 1940 Act | |
with respect to the Series, in the form previously delivered to Insurance Company and the Trust, | |
and all forms, reports, proxy statements and other documents required to be filed with the | |
Commission under the 1933 Act, the Securities Exchange Act of 1934 (“1934 Act”) and the | |
1940 Act (collectively, the “SEC Filings”) have been filed with the Commission and copies of | |
any and all amendments thereto will be forwarded to Insurance Company and the Trust at the | |
time that they are filed with the Commission; (b) the Series is, and shall be at all times while this | |
Agreement is in force, lawfully organized and validly existing under the laws of the | |
Commonwealth of Massachusetts; (c) the Series is and shall remain registered as an open-end | |
management investment company under the 1940 Act; (d) the SEC Filings (including the | |
registration statement) conform or, when they become effective, will conform in all material | |
respects to the requirements of the 1933 Act, the 1940 Act and the 1934 Act, and the rules and | |
regulations of the Commission thereunder, and will not contain any untrue statement of a | |
material fact or omit to state a material fact required to be stated therein or necessary to make the | |
statements therein not misleading; provided, however, that this representation and warranty shall | |
not apply to any statements or omissions made in reliance upon and in conformity with | |
information furnished in writing to the Series by Insurance Company, ING, IFD or the Trust | |
expressly for use therein; and (e) the Series and CRMC will comply in all material respects with | |
all applicable laws and regulations, including, without limitation, the 1933 Act and the 1940 Act | |
and the rules and regulations thereunder. The Series shall register and qualify the shares of the |
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Master Funds listed on Appendix C for sale in accordance with the securities laws of the various |
states only if and to the extent deemed necessary by the Series. |
2. | The Trust, ING and IFD each represents and warrants to Insurance Company, the |
Series and CRMC that the shares of the Portfolios listed on Appendix C are or will be registered | |
under the 1933 Act and that the shares will be issued, sold and distributed in compliance in all | |
material respects with all applicable federal securities laws. The Trust further represents and | |
warrants that: (a) the Trust is, and shall be at all times while this Agreement is in force, lawfully | |
organized and validly existing under the laws of the Commonwealth of Massachusetts; (b) the | |
Trust is and shall remain registered as an open-end management investment company under the | |
1940 Act; (c) the SEC Filings (including the registration statement) of the Trust conform or, | |
when they become effective, will conform in all material respects to the requirements of the | |
1933 Act, the 1934 Act and the 1940 Act, and the rules and regulations of the Commission | |
thereunder, and will not contain any untrue statement of a material fact or omit to state a material | |
fact required to be stated therein or necessary to make the statements therein not misleading; | |
provided, however, that this representation and warranty shall not apply to any statements or | |
omissions made in reliance upon and in conformity with information furnished in writing to the | |
Series by Insurance Company, CRMC or the Series expressly for use therein; and (e) the Trust, | |
ING and IFD will comply in all material respects with all applicable laws and regulations, | |
including, without limitation, the 1933 Act and the 1940 Act and the rules and regulations | |
thereunder. The Trust shall register and qualify the shares of the Portfolios listed on Appendix C | |
for sale in accordance with the securities laws of the various states only if and to the extent | |
deemed necessary by the Trust. |
2a. | Insurance Company represents and warrants to the Trust, Series and CRMC that |
the Contracts are currently and at the time of issuance will be treated as annuity contracts under | |
applicable provisions of the Internal Revenue Code of 1986, as amended, and the regulations | |
thereunder (the “Code”), that it will maintain such treatment and that it will notify the Trust, | |
Series and CRMC immediately upon having a reasonable basis for believing that the Contracts | |
have ceased to be so treated or that they might not be so treated in the future. |
3. | The Series will furnish to Insurance Company and the Trust such information |
with respect to the Series in such form and signed by such of its officers as Insurance Company | |
and/or the Trust may reasonably request, and will warrant that the statements therein contained | |
when so signed will be true and correct. The Series will advise Insurance Company and the | |
Trust immediately of: (a) any non-routine request by the Commission (i) for amendment of the | |
registration statement relating to the Series, or (ii) for additional information; (b) the issuance by | |
the Commission of any stop order suspending the effectiveness of the registration statement of | |
the Series or the initiation of any proceeding for that purpose; (c) the institution of any | |
proceeding, investigation or hearing involving the offer or sale of the Contracts or the Series of | |
which it or CRMC becomes aware; or (d) the happening of any material event, if known, which | |
makes untrue any statement made in the registration statement of the Series or which requires the | |
making of a change therein in order to make any statement made therein not misleading. |
4. | The Series will make Class 2 shares of the Master Funds listed on Appendix C |
available to the Portfolios and will register for sale under the 1933 Act and, if required, under |
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state securities laws, such additional shares of the Master Funds as may be reasonably necessary |
for investment by the Portfolios under this Agreement and maintain a continuous offering of the |
shares of the Master Funds. IFD, as the Trust’s distributor, will be entitled to a Rule 12b-1 |
service fee paid by the Series and to be accrued daily and paid monthly at an annual rate of |
0.25% of the average daily net assets of the Class 2 shares of each Master Fund attributable to |
the Contracts. IFD may use the fee in connection with offering shares of the Portfolios to |
Insurance Company or for other purposes or services deemed appropriate by IFD, including |
services for Contract owners with investments in subaccounts corresponding to the Portfolios |
investing in Class 2 shares of each Master Fund (each, a “Subaccount”) for as long as the Series’ |
Class 2 Plan of Distribution pursuant to Rule 12b-1 under the 1940 Act (the “12b-1 plan”) |
remains in effect and the Portfolios remain invested in shares of the Master Funds. Master Fund |
shares to be made available to the Portfolios shall be sold by the Series and purchased by the |
Trust for a given Portfolio at the net asset value of the respective Master Fund (without the |
imposition of a sales load) next computed after receipt of each order by the Series or its |
designee, as established in accordance with the provisions of the then current Prospectus of the |
Series. For purposes of this Paragraph 4, Insurance Company shall be a designee of each Master |
Fund and each Portfolio for receipt of such orders attributable to the Contracts, and receipt by |
such designee as of 4:00 p.m. Eastern time (or other such time the Boards of Trustees of the |
Trust and the Series shall so designate) shall constitute receipt by the Trust and the Series; |
provided that the Portfolio and the Master Fund each receives actual notice of such order by 9:30 |
a.m. Eastern time on the following Business Day (“Next Business Day”). “Business Day” shall |
mean any day on which the New York Stock Exchange (“NYSE”) is open for trading and on |
which the Series or Portfolio, as applicable, calculates its net asset value pursuant to the rules of |
the Commission. The Series will make shares of the Master Funds available indefinitely for |
purchase at the applicable net asset value per share by the Trust and its Portfolios on those days |
on which the Series calculates its net asset value pursuant to the rules of the Commission, and |
the Series shall use its best efforts to calculate such net asset value on each day on which the |
NYSE is open for trading. The Series shall make the net asset value per share for each Master |
Fund available to the Trust on a daily basis as soon as reasonably practicable after the Series |
calculates its net asset value per share, and the Series shall use its best efforts to make such net |
asset value per share available by 6:30 p.m. Eastern time. CRMC and the Series shall report to |
the Trust and Insurance Company any material error in the calculation of the net asset values, |
dividends or capital gain information as soon as practicable upon discovery. In the event of any |
material error in the calculation or communication of net asset value, dividends or capital gain |
information or delay in the communication by CRMC, the Series will act in accordance with its |
then current policies and procedures relating to error correction, which policies and procedures |
shall be provided to Insurance Company and the Trust and shall be in accordance with the 1933 |
Act and 1940 Act (and any applicable regulations thereunder) and SEC policies regarding |
pricing errors, including in regards to when the party responsible for the error must compensate a |
Fund or its shareholders for any losses. The Series and CRMC are responsible for maintaining |
net asset values for each Master Fund in accordance with the requirements of the 1940 Act and |
the Series’ then current Prospectus. Shares of particular Master Funds shall be ordered in such |
quantities and at such times as determined by the Trust to be necessary to meet the requirements |
of the Portfolios. Payments for shares purchased will be made in federal funds transmitted by |
wire on the Next Business Day, and Insurance Company and the Trust shall each use |
commercially reasonable efforts to wire (or cause to be wired) funds to the other, for the purpose |
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of settling net purchase orders or orders of redemption, by 3:00 p.m. Eastern time on the Next |
Business Day. |
4a. | The Series and CRMC agree that total return and yield performance information |
of the Series derived from its registration statement provided by the Series or CRMC may be | |
used by the Trust, IFD or Insurance Company in connection with the sale of shares of the | |
Portfolios and the Contracts without prior approval of the Series or CRMC, and the Trust, IFD | |
and Insurance Company will be responsible for using such information in conformity with the | |
information provided. |
4b. | The Series shall provide the Trust and Insurance Company with at least one |
hundred twenty (120) days’ advance notice, or such lesser time as may be agreed to by the | |
parties, of any change in the Series’ investment objective, and at least sixty (60) days’ advance | |
notice, or such lesser time as may be agreed to by the parties, of any material change in the | |
Series’ principal investment strategy described in its Prospectus, or any change in the Series’ | |
fiscal year or time for calculating net asset value for purposes of Rule 22c-1. |
4c. | The Series reserves the right to temporarily suspend or terminate sales of the |
Series’ shares to the Trust and the Portfolios if such action is required by law, or if the Board of | |
Trustees of the Series deems it necessary, appropriate and in the best interests of the Series and | |
its shareholders or in response to the order of an appropriate regulatory authority. |
4d. | As of the Effective Date of this Agreement, the Series is unable to provide pricing |
information, order execution and wire payment for purchases and redemptions of Master Fund | |
shares through the National Securities Clearing Corporation (“NSCC”) and its subsidiary | |
systems described in Appendix D to this Agreement. The Series agrees to provide pricing | |
information, order execution and wire payment for purchases and redemptions of Master Fund | |
Shares through the NSCC and its subsidiary systems pursuant to Appendix D to this Agreement, | |
as such Appendix may be amended from time to time by mutual agreement in writing, as soon as | |
it becomes feasible for the Series to do so. |
5. | The Trust will make shares of the Portfolios listed on Appendix C available to |
Insurance Company and will register for sale under the 1933 Act and, if required, under state | |
securities laws, such additional shares of the Portfolios as may reasonably be necessary for use | |
as the funding vehicle for the Contracts and to maintain a continuous offering of the shares of the | |
Portfolios. |
5a. | The Trust reserves the right to temporarily suspend or terminate sales of the |
Portfolios’ shares to Insurance Company, or purchases of the Series’ shares by the Trust and the | |
Portfolios, if any such action is required by law, or if the Board of Trustees of the Trust deems it | |
necessary, appropriate and in the best interest of the Trust and its shareholders (including | |
Contract owners) or in response to the order of an appropriate regulatory authority. |
6. | The Contracts funded through each Account will provide for the allocation of net |
amounts among certain Subaccounts for investment in such shares of the Portfolios as may be | |
offered from time to time in the Contracts. The selection of the particular Subaccount is to be |
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made by the Contract owner and such selection may be changed in accordance with the terms of |
the Contracts. Insurance Company reserves the right to refuse, to impose limitations on, or to |
limit any transaction request if the request would tend to disrupt Contract administration or is not |
in the best interest of the Contract owners or an Account or Subaccount. |
7. | Transfer of the Series’ and the Trust’s shares will be by book entry only. No |
stock certificates will be issued to the Accounts or Portfolios. Shares ordered from a particular | |
Master Fund will be recorded by CRMC or the Series’ transfer agent as instructed by the Trust in | |
an appropriate title for the corresponding Portfolio. Shares ordered from a particular Portfolio | |
will be recorded by IFD or the Trust’s transfer agent as instructed by Insurance Company in an | |
appropriate title for the corresponding Account or Subaccount. |
8. | The Series shall furnish notice promptly to the Trust of any dividend or |
distribution payable on any shares of the Master Funds held by the Portfolios. The Trust hereby | |
elects to receive all such dividends and distributions as are payable on shares of a Master Fund | |
recorded in the title for the corresponding Portfolio in additional shares of that Master Fund. | |
The Series shall notify the Trust of the number of shares so issued. The Trust reserves the right | |
to revoke this election and to receive all such income dividends and capital gain distributions in | |
cash. |
8a. | The Trust shall furnish notice promptly to Insurance Company of any dividend or |
distribution payable on any shares underlying the Portfolios. Insurance Company hereby elects | |
to receive all such dividends and distributions as are payable on shares of a Portfolio recorded in | |
the title for the corresponding Subaccount in additional shares of that Portfolio. The Trust shall | |
notify Insurance Company of the number of shares so issued. Insurance Company reserves the | |
right to revoke this election and to receive all such income dividends and capital gain | |
distributions in cash. |
9. | The Series shall effect redemptions of interests in the Master Funds in accordance |
with the terms of the Master Funds’ then current Prospectus and the provisions of the 1940 Act | |
and the rules and regulations thereunder. For purposes of this Paragraph 9, Insurance Company | |
shall be a designee of each Portfolio and each Master Fund for receipt of requests for redemption | |
from each Account, and receipt by such designee by 4:00 p.m. Eastern time (or other such time | |
the Boards of Trustees of the Trust and the Series shall so designate) shall constitute receipt by | |
the Trust and the Series; provided that the Trust or Series each receives actual notice of such | |
request for redemption by 9:00 a.m. Eastern time on the Next Business Day. Insurance | |
Company shall purchase and redeem the shares of the Portfolios offered by the then current | |
Prospectus of the Trust in accordance with the provisions of such Prospectus. |
9a. | All redemption requests, including any redemption requests that the Trust |
receives from an Account which necessitate a redemption request to the Series and a redemption | |
of a Portfolio’s entire interest from a Master Fund, will be effected in cash at the next determined | |
net asset value after the redemption request is received, payable in federal funds. The Series will | |
use its best efforts to settle redemptions on the business day following the receipt of a |
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redemption request by the Series and if such next business day settlement is not practicable, then |
as soon thereafter as practicable, and will immediately notify the Trust regarding the anticipated |
settlement date, which shall in all events be a date permitted under the 1940 Act. The Trust will |
settle redemptions immediately upon receipt of proceeds from the Series. |
10. | The Series shall pay all expenses incidental to its performance under this |
Agreement. | The Series shall bear the expenses for the cost of registration of its shares, |
preparation of Prospectuses and statements of additional information to be sent to existing | |
Contract owners (upon request in the case of the statement of additional information), proxy | |
statements and related materials and annual and semi-annual shareholder reports, the printing | |
and distribution of such items to each Contract owner who has allocated net amounts to any | |
Subaccount, the preparation of all statements and notices required from it by any federal or state | |
law, and taxes on the issue or transfer of the Series’ shares subject to this Agreement. The Series | |
will provide the Trust and Insurance Company, at least once a year, with enough copies of its | |
Statement of Additional Information to be able to distribute one to each Contract owner or | |
prospective Contract owner who requests such Statement of Additional Information. With | |
respect to any prospectus and annual and semi-annual reports (the “Reports”) of the Series that | |
are printed in combination with any one or more such Reports of other investment options for the | |
Contracts (the “Booklet”), the Series shall bear the costs of printing and mailing the Booklet to | |
existing Contract owners based on the ratio of the number of pages of the Series’ Reports | |
included in the Booklet to the number of pages in the Booklet as a whole. |
11. | Insurance Company shall bear the expenses for the cost of preparation and |
delivery of the Portfolios and the Master Funds respective Prospectuses (and supplements | |
thereto) to be sent to prospective Contract owners. Each of the Trust and the Series shall | |
provide, at its expense and in a timely manner, such documentation (in camera-ready or other | |
mutually agreeable form) and other assistance as is reasonably necessary in order for Insurance | |
Company once each year (or more frequently if the Prospectus for the Series or the Trust is | |
amended), and twice each year in the case of the annual and semi-annual shareholder reports, to | |
have the Prospectus or Prospectuses, and the annual and semi-annual shareholder reports for the | |
Contracts, the Portfolios and the Master Funds, printed together in one or more documents (such | |
printing to be done at Insurance Company’s expense with respect to prospective investors). |
12. | Insurance Company represents and warrants to the Trust and the Series that any |
information furnished in writing by Insurance Company to the Trust or the Series for use in the | |
registration statements of the Trust and the Series, respectively, will not result in the registration | |
statement’s failing to conform in all respects to the requirements of the 1933 Act and the 1940 | |
Act and the rules and regulations thereunder or containing any untrue statement of a material fact | |
or omission to state a material fact required to be stated therein or necessary to make the | |
statements therein not misleading. |
12a. | The Trust represents and warrants to the Series that any information furnished in |
writing by the Trust to the Series for use in the registration statement of the Series will not result | |
in the registration statement’s failing to conform in all respects to the requirements of the 1933 | |
Act and the 1940 Act and the rules and regulations thereunder or containing any untrue | |
statement of a material fact or omission to state a material fact required to be state therein or |
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necessary to make the statements therein not misleading. |
12b. The Series represents and warrants to the Trust and Insurance Company that any |
information furnished in writing by the Series to the Trust or Insurance Company for use in the |
registration statement of the Trust or Insurance Company will not result in the registration |
statement’s failing to conform in all respects to the requirements of the 1933 Act and the 1940 |
Act and the rules and regulations thereunder or containing any untrue statement of a material fact |
or omission to state a material fact required to be stated therein or necessary to make the |
statements therein not misleading. |
13. | Insurance Company, the Trust and their affiliates shall make no representations |
concerning the Series’ shares except those contained in the then current Prospectus of the Series, | |
current statement of additional information of the Series, reports to shareholders, or in such | |
printed information subsequently issued by the Series or on its behalf by CRMC or American | |
Funds Distributors, Inc. (“AFD”), including information published on the Series’ or CRMC’s | |
internet site, in materials approved by CRMC and AFD or as otherwise provided in the Business | |
Agreement in effect among Insurance Company, AFD and CRMC dated as of September 2, | |
2003. |
14. | Shares of the Series may be offered to separate accounts of various insurance |
companies in addition to Insurance Company and the Trust and otherwise in accordance with the | |
Mixed and Shared Funding Order. The Series agrees to take all steps necessary so that the | |
Master Funds meet the requirements of Section 817 relating to diversification for variable | |
annuity, endowment and life insurance contracts. The Series represents that each Master Fund is | |
currently qualified as a “regulated investment company” (“RIC”) under the Code. The Series | |
also agrees to maintain each Master Fund’s qualification as a RIC, and each will notify Insurance | |
Company and the Trust immediately upon having a basis for believing that the Series has ceased | |
to so qualify or that the Series might not so qualify in the future. The Series will provide the | |
Trust with securities holdings reports for each Master Fund within ten days after each calendar | |
quarter. |
15. | The Series and the Trust hereby notify Insurance Company that it may be |
appropriate to include in the Prospectus pursuant to which a Contract is offered disclosure | |
regarding the risks of mixed and shared funding. |
16. | The parties to this Agreement recognize that due to differences in tax treatment or |
other considerations, the interests of various Contract owners participating in one or more | |
Portfolios or Master Funds might, at some time, be in conflict. Each party shall report to each | |
other party any potential or existing conflict of which it becomes aware. The Boards of Trustees | |
of the Trust and the Series shall promptly notify Insurance Company of the existence of | |
irreconcilable material conflict and its implications. If such a conflict exists, Insurance | |
Company will, at its own expense, take whatever action deemed necessary in accordance with | |
the mixed and shared funding orders of or applicable to the Series and the Trust, respectively, to | |
remedy such conflict; in any case, Contract owners will not be required to bear such expenses. |
17. | Insurance Company agrees to indemnify and hold the Trust, ING, IFD, CRMC |
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and the Series and any affiliate, control person, shareholder, director, trustee, officer or employee |
of the Trust, ING, IFD or the Series (collectively, “Indemnified Affiliates”) harmless against any |
and all losses, claims, damages, liabilities or litigation (including legal and other expenses) to |
which such Indemnified Affiliate may be subject under any statute, at common law or otherwise, |
insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof) or |
settlements arise as a result of Insurance Company’s: (a) making untrue statements of material |
facts or omitting material facts in a Contract’s registration statement, Prospectus, statement of |
additional information, private placement memorandum or other disclosure documents, semi- |
annual or annual reports to Contract owners and sales literature for the Contracts; (b) making |
untrue statements of material facts that an Indemnified Affiliate includes in its materials, |
provided that the Indemnified Affiliate relies on information supplied by Insurance Company; |
(c) unlawful conduct, bad faith, willful malfeasance, or gross negligence by Insurance Company |
with respect to the sale of the Contracts or Portfolio or Master Fund shares; or (d) breaching this |
Agreement or a representation or warranty contained in this Agreement. |
17a. | ING and IFD (as between them, in relation to each party’s responsibilities under |
this Agreement), each on behalf of itself and the Trust, agrees to indemnify and hold Insurance | |
Company, the Trust, CRMC, the Series and any affiliate, control person, shareholder, director, | |
trustee, officer or employee of Insurance Company, the Trust or the Series (collectively, | |
“Registered Affiliates”) harmless against any and all losses, claims, damages, liabilities or | |
litigation (including legal and other expenses) to which such Registered Affiliate may be subject | |
under any statute, at common law or otherwise, insofar as such losses, claims, damages, | |
liabilities or expenses (or actions in respect thereof) or settlements arise as a result of the Trust’s, | |
ING’s or IFD’s: (a) making untrue statements of material facts or omitting material facts in the | |
Trust’s registration statement, Prospectuses or statements of additional information, semi-annual | |
and annual reports to shareholders, and sales literature; (b) making untrue statements of material | |
facts that a Registered Affiliate includes in its materials, provided such Registered Affiliate relies | |
on information supplied by ING or IFD; (c) unlawful conduct, bad faith, willful malfeasance, or | |
gross negligence by the Trust, ING or IFD with respect to the sale of the Contracts or Portfolio | |
shares or the operation of the Trust or a Portfolio; (d) failure of a Portfolio to comply with any of | |
its investment objectives, policies and restrictions; or (e) breaching this Agreement or a | |
representation or warranty contained in this Agreement. |
17b. The Series and CRMC each agrees to indemnify and hold Insurance Company, |
the Trust, ING and IFD and any affiliate, control person, shareholder, director, trustee, officer or |
employee of Insurance Company, the Trust, ING or IFD (collectively, “Insurance Company |
Affiliates”) harmless against any and all losses, claims, damages, liabilities or litigation |
(including legal and other expenses) to which such Insurance Company Affiliate may be subject |
under any statute, at common law or otherwise, insofar as such losses, claims, damages, |
liabilities or expenses (or actions in respect thereof) or settlements arise as a result of the Series’ |
or CRMC’s: (a) making untrue statements of material facts or omitting material facts in the |
Series’ registration statement, Prospectuses or statements of additional information, semi-annual |
and annual reports to shareholders, and sales literature; (b) making untrue statements of material |
facts that an Insurance Company Affiliate includes in its materials, provided such Insurance |
Company Affiliate relies on information supplied by the Series or CRMC; (c) unlawful conduct, |
bad faith, willful malfeasance, or gross negligence by the Series or CRMC with respect to the |
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sale of the Contracts or Master Fund shares or the operation of the Series or a Master Fund; |
(d) failure of a Master Fund to comply with any of its investment objectives, policies and |
restrictions; or (e) breaching this Agreement or a representation or warranty contained in this |
Agreement. |
18. Insurance Company shall be responsible for assuring that the Account calculates |
pass-through voting privileges of Contract owners in a manner consistent with the method of |
calculating pass-through voting privileges set forth in the then current Prospectus or private |
placement memorandum for the Contract and the mixed and shared funding orders of or |
applicable to the Trust and the Series. |
19. | Each party hereto shall cooperate with each other party and all appropriate |
governmental authorities (including, but not limited to, the Commission, the NASD 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. |
20. | The parties understand that there is no intention to create a joint venture in the |
subject matter of this Agreement. Accordingly, the right to terminate this Agreement and to | |
engage in any activity not inconsistent with this Agreement is absolute. This Agreement will | |
terminate: |
(a) | by mutual agreement at any time; |
(b) | by any party at any time upon sixty (60) days’ written notice to the other parties; |
(c) | at the option of Insurance Company, the Trust, CRMC or the Series upon ten | |
calendar days’ prior written notice to the other parties if a final non-appealable | ||
administrative or judicial decision is entered against another party which has a | ||
material impact on the Contracts; |
(d) | at the option of Insurance Company or the Trust, immediately upon written | |
notice, if shares of the Series are not reasonably available for investment by the | ||
Portfolios; |
(e) | at the option of Insurance Company or the Trust, immediately upon written | |
notice, if the Series or a Master Fund fails to meet the requirements for either | ||
diversification under Section 817 or RIC status under the Code, or if the Board of | ||
the Series terminates the 12b-1 plan; |
(f) | at the option of Insurance Company, the Trust, CRMC or the Series in the event | |
the Series’ shares are not registered, issued or sold in accordance with applicable | ||
state and/or federal law or such law precludes the use of such shares as an | ||
underlying investment for the Contracts issued or to be issued by Insurance | ||
Company (in such event prompt notice shall be given by Insurance Company, the | ||
Trust, CRMC or the Series to the other parties); |
10 |
(g) | at Insurance Company’s option by written notice to the Series and/or CRMC if | |
Insurance Company shall determine in its sole judgment exercised in good faith, | ||
that either the Series or CRMC has suffered a material adverse change in its | ||
business, operations, financial condition or prospects since the date of this | ||
Agreement or is the subject of material adverse publicity; or |
(h) | with respect to each Insurance Company, at the option of the Series or CRMC by | |
written notice to Insurance Company if the Series or CRMC shall determine in its | ||
sole judgment exercised in good faith, that Insurance Company has suffered a | ||
material adverse change in its business, operations, financial condition or | ||
prospects since the date of this Agreement or is the subject of material adverse | ||
publicity. |
The effective date for termination pursuant to any notice given under this Paragraph shall |
be calculated beginning with the date of receipt of such notice. |
21. | All notices, consents, waivers, and other communications under this Agreement |
must be in writing, and will be deemed to have been duly received: (a) when delivered by hand | |
(with written confirmation of receipt); (b) when sent by facsimile (with written confirmation of | |
receipt), provided that a copy is mailed by registered mail, return receipt requested; or (c) the | |
day after it is sent by a nationally recognized overnight delivery service, in each case to the | |
appropriate addresses and facsimile numbers set forth below (or to such other addresses and | |
facsimile numbers as a party may designate by notice to the other parties): |
If to Insurance Company: | |
ING USA Annuity and Life Insurance Company | |
ReliaStar Life Insurance Company of New York | |
U.S. Legal Services | |
0000 Xxxxxxxx Xxxxx | |
Xxxx Xxxxxxx, XX 00000 | |
Attention: Xxxxx X. Xxxxxx, Counsel | |
Facsimile No.: 000-000-0000 |
with a copy to: | |
ING Investment Funds | |
000 Xxxxxxx Xxxxxx | |
Xxx Xxxx, XX 00000 | |
Attention: Xxxx Xxxxxxxxx, Head of Outside Funds |
If to the Trust: |
ING Investors Trust | |
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx | |
Xxxxxxxxxx, XX 00000-0000 | |
Attn: Chief Counsel |
11 |
If to ING: |
ING Investments, LLC | |
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx | |
Xxxxxxxxxx, XX 00000-0000 | |
Attn: Chief Counsel |
If to IFD: |
ING Funds Distributor, LLC | |
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx | |
Xxxxxxxxxx, XX 00000-0000 | |
Attn: Chief Counsel |
If to the Series: |
American Funds Insurance Series | |
000 X. Xxxx Xxxxxx, 00xx Xxxxx | |
Xxx Xxxxxxx, Xxxxxxxxxx 00000 | |
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President | |
Facsimile No.: (000) 000-0000 |
with a copy to: |
Capital Research and Management Company | |
000 X. Xxxx Xxxxxx, 00xx Xxxxx | |
Xxx Xxxxxxx, Xxxxxxxxxx 00000 | |
Attention: Xxxxxxx X. Xxxxxxxxxx, Vice President and Senior Counsel, Fund Business | |
Management Group | |
Facsimile No.: (000) 000-0000 |
If to CRMC: |
Capital Research and Management Company | |
000 X. Xxxx Xxxxxx, 00xx Xxxxx | |
Xxx Xxxxxxx, XX 00000 | |
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President and Legal Counsel, | |
Fund Business Management Group, and Secretary | |
Facsimile No.: (000) 000-0000 |
with a copy to: |
Capital Research and Management Company | |
000 X. Xxxx Xxxxxx, 00xx Xxxxx | |
Xxx Xxxxxxx, Xxxxxxxxxx 00000 | |
Attention: Xxxxxxx X. Xxxxxxxxxx, Vice President and Senior Counsel, | |
Fund Business Management Group | |
Facsimile No.: (000) 000-0000 |
12 |
21. | If this Agreement terminates, any provision of this Agreement necessary to the |
orderly windup of business under it will remain in effect as to that business, after termination. |
22. | If this Agreement terminates, the Series and CRMC, at Insurance Company’s |
option, will continue to make additional shares of the Master Funds available to the Trust for all | |
existing Contracts as of the effective date of termination (under the same terms and conditions as | |
were in effect prior to termination of this Agreement with respect to existing Contract owners), | |
unless the Series liquidates or applicable laws prohibit further sales. Insurance Company agrees | |
not to redeem shares of the Trust unless: (a) the Agreement is terminated pursuant to Paragraph | |
20(e) or 20(f); (b) legitimately required to do so according to a Contract owner’s request; | |
(c) under an order from the Commission or pursuant to exemptive relief granted by the | |
Commission or pursuant to a vote of Contract owners; or (d) as otherwise agreed to or permitted | |
among the parties. |
23. | The obligations of the Series under this Agreement are not binding upon any of |
the Trustees, officers, employees or shareholders (except CRMC if it is a shareholder) of the | |
Series individually, but bind only the Series’ assets. When seeking satisfaction for any liability | |
of the Series in respect of this Agreement, Insurance Company, on behalf of itself and the | |
Accounts, agrees not to seek recourse against said Trustees, officers, employees or shareholders, | |
or any of them, or any of their personal assets for such satisfaction. Insurance Company agrees | |
that the obligations of each Master Fund hereunder shall be several and not joint, in accordance | |
with its proportionate interest hereunder, and Insurance Company agrees not to proceed against | |
any Master Fund for the obligations of another Master Fund. Notwithstanding the foregoing, if | |
Insurance Company seeks satisfaction for any liability of the Series in respect of this Agreement, | |
Insurance Company (on behalf of itself or any Account) may seek recourse against CRMC. |
23b. The obligations of the Trust under this Agreement are not binding upon any of the |
Trustees, officers, employees or shareholders (except Insurance Company if it is a shareholder), |
of the Trust individually, but bind only the Trust’s assets. When seeking satisfaction for any |
liability of the Trust in respect of this Agreement, Insurance Company, the Series and CRMC |
agree not to seek recourse against said Trustees, officers, employees or shareholders, or any of |
them, or any of their personal assets for such satisfaction. Insurance Company, the Series and |
CRMC also agree that the obligations of each Portfolio hereunder shall be several and not joint, |
in accordance with its proportionate interest hereunder, and the Series and CRMC agree not to |
proceed against any Portfolio for the obligations of another Portfolio. |
24. | This Agreement shall | be | construed | in | accordance | with | the | laws | of | the |
Commonwealth of Massachusetts. |
25. | This Agreement and the parties’ rights, duties and obligations under this |
Agreement are not transferable or assignable by any of them without the express, prior written | |
consent of the other parties hereto. Any attempt by a party to transfer or assign this Agreement | |
or any of its rights, duties or obligations under this Agreement without such consent is void; | |
provided, however, that a merger of, reinsurance arrangement by, or change of control of a party | |
shall not be deemed to be an assignment for purposes of this Agreement. |
13 |
26. | The following Paragraphs shall survive any termination of this Agreement: | 4, 17- |
17(b), 21-26. |
27. | This Agreement and any amendment to it may be executed in one or more |
counterparts. All of those counterparts shall constitute one and the same agreement. |
14 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly |
executed and attested as of the date first above written. |
ING USA ANNUITY AND LIFE INSURANCE | ||
COMPANY (on behalf of itself and each | ||
Account) | ||
Attest: | /s/ Xxxxxxx Xxx | |
Xxxxxxx Xxx | ||
Vice President |
RELIASTAR LIFE INSURANCE COMPANY | ||
OF NEW YORK (on behalf of itself and each | ||
Account) | ||
Attest: | /s/ Xxxxxxx Xxx | |
By: | Xxxxxxx Xxx | |
Its: | Vice President |
AMERICAN FUNDS INSURANCE SERIES | ||
Attest: | ||
/s/ Xxxx X. Xxxxxx | ||
/s/ Xxxx Burkley_______________ | By: | Xxxx X. Xxxxxx |
Its: | Secretary |
15 |
Appendix A – Contracts | |
Company | Contracts |
ING USA Annuity and Life | GoldenSelect Access® |
Insurance Company: | GoldenSelect Access One |
GoldenSelect DVA Plus® | |
GoldenSelect DVA | |
GoldenSelect ES II® | |
GoldenSelect Generations, | |
GoldenSelect Landmark | |
GoldenSelect Opportunities | |
GoldenSelect Premium Plus® | |
SmartDesign Advantage | |
SmartDesign Signature | |
SmartDesign Variable Annuity | |
ReliaStar Life Insurance Company | GoldenSelect DVA Plus-NY |
of New York | SmartDesign Variable Annuity – NY |
Appendix B – Separate Accounts |
Company | Separate Account | |
ING USA Annuity and Life | • | ING USA Annuity and Life Insurance Company |
Insurance Company: | Separate Account B | |
ReliaStar Life Insurance Company | • | ReliaStar Life Insurance Company of New York |
of New York: | Separate Account NY-B |
18 |
Appendix C |
PORTFOLIOS AND CORRESPONDING MASTER FUNDS |
ING Investors Trust Portfolios: | American Funds Insurance Series Master | ||
Funds: | |||
• | ING American Funds Growth Portfolio | • | Growth Fund (Class 2 Shares) |
• | ING American Funds Growth-Income | • | Growth-Income Fund (Class 2 Shares) |
Portfolio | |||
• | ING American Funds International | • | International Fund (Class 2 Shares) |
Portfolio |
19 |
Appendix D |
Procedures for Pricing and Order/Settlement Through National Securities Clearing Corporation’s |
Mutual Fund Profile System and Mutual Fund Settlement, Entry and Registration Verification |
System. |
1. | Subject to the provisions of Paragraph 4 of the Participation Agreement, the |
parties hereby agree to provide pricing information, execute orders and wire payments for | |
purchases and redemptions of Master Fund shares through National Securities Clearing | |
Corporation (“NSCC”) and its subsidiary systems, when it becomes feasible for the Series to do | |
so, as follows: |
(a) | The Series will furnish to the Trust or its designated affiliate through NSCC’s | |
Mutual Fund Profile System (“MFPS”) (1) the most current net asset value | ||
information for each Master Fund, (2) a schedule of anticipated dividend and | ||
distribution payment dates for each Master Fund, which is subject to change | ||
without prior notice, ordinary income and capital gain dividend rates on the | ||
Master Fund’s ex-date, and (3) in the case of fixed income funds that declare | ||
daily dividends, the daily accrual or the interest rate factor. All such information | ||
shall be furnished to the Trust or its designated affiliate by 6:30 p.m. Eastern | ||
Time on each Business Day or at such other time as that information becomes | ||
available. Changes in pricing information will be communicated to NSCC and | ||
the Trust |
(b) | Upon receipt of Master Fund purchase, exchange and redemption instructions for | |
acceptance as of the time at which a Master Fund's net asset value is calculated as | ||
specified in the Series' Prospectus ("Close of Trading") on each Business Day | ||
("Instructions"), and upon its determination that there are good funds with respect | ||
to Instructions involving the purchase of Master Fund shares, the Trust or its | ||
designated affiliate will calculate the net purchase or redemption order for each | ||
Master Fund. Orders for net purchases or net redemptions derived from | ||
Instructions received by the Trust or its designated affiliate prior to the Close of | ||
Trading on any given Business Day will be sent to the Defined Contribution | ||
Interface of NSCC’s Mutual Fund Settlement, Entry and Registration Verification | ||
System (“Fund/SERV”) by 5:00 a.m. Eastern Time on the next Business Day. | ||
Subject to the Trust’s or its designated affiliate’s compliance with the foregoing, | ||
the Trust or its designated affiliate will be considered the agent of the Series, and | ||
the Business Day on which Instructions are received by the Trust or its affiliate in | ||
proper form prior to the Close of Trading will be the date as of which shares of | ||
the Master Funds are deemed purchased, exchanged or redeemed pursuant to such | ||
Instructions. Instructions received in proper form by the Trust or its designated | ||
affiliate after the Close of Trading on any given Business Day will be treated as if | ||
received on the next following Business Day. Dividends and capital gains | ||
distributions will be automatically reinvested at net asset value in accordance with | ||
the Series' then current Prospectuses. |
20 |
(c) | The Trust or its designated affiliate will wire payment for net purchase orders by | |
the Master Fund’s NSCC Firm Number, in immediately available funds, to an | ||
NSCC settling bank account designated by the Trust or its designated affiliate no | ||
later than 5:00 p.m. Eastern time on the same Business Day such purchase orders | ||
are communicated to NSCC. For purchases of shares of daily dividend accrual | ||
funds, those shares will not begin to accrue dividends until the day the payment | ||
for those shares is received. |
(d) | NSCC will wire payment for net redemption orders by Master Fund, in | |
immediately available funds, to an NSCC settling bank account designated by | ||
Insurance Company or its designated affiliate, by 5:00 p.m. Eastern Time on the | ||
Business Day such redemption orders are communicated to NSCC, except as | ||
provided in the Series' then current Prospectus and statement of additional | ||
information. |
(e) | If the Series does not send a confirmation of the Trust’s or its designated | |
affiliate’s purchase or redemption order to NSCC by the applicable deadline to be | ||
included in that Business Day’s payment cycle, payment for such purchases or | ||
redemptions will be made the following Business Day. |
(f) | If on any day the Trust or its designated affiliate, or the Series is unable to meet | |
the NSCC deadline for the transmission of purchase or redemption orders, it may | ||
at its option transmit such orders and make such payments for purchases and | ||
redemptions directly to the Series or the Trust or its designated affiliate, as | ||
applicable, as is otherwise provided in the Agreement. |
(g) | These procedures are subject to any additional terms in the Series' Prospectus and | |
the requirements of applicable law. The Series reserves the right, at its discretion | ||
and without notice, and subject to the terms and conditions of this Agreement to | ||
suspend the sale of shares or withdraw the sale of shares of any Master Fund. |
2. | The Trust or its affiliate, the Series and clearing agents (if applicable) are each |
required to have entered into membership agreements with NSCC and met all requirements to | |
participate in the MFPS and Fund/SERV systems before these procedures may be utilized. Each | |
party will be bound by the terms of their membership agreement with NSCC and will perform | |
any and all duties, functions, procedures and responsibilities assigned to it and as otherwise | |
established by NSCC applicable to the MFPS and Fund/SERV system and the Networking | |
Matrix Level utilized. |
3. | Except as modified hereby, all other terms and conditions of the Agreement shall |
remain in full force and effect. Unless otherwise indicated herein, the terms defined in the | |
Agreement shall have the same meaning as in this Appendix. |
21 |