First Amendment to the Selling and Services Agreement and Participation Agreement
Exhibit 24(b)(8.50) |
First Amendment to the Selling and Services Agreement and Participation Agreement |
This First Amendment dated as of March 18, 2009 by and between ING Life Insurance and Annuity
Company (“ING Life”), ING Institutional Plan Services, LLP (“ING Institutional”), ING Financial
Advisers, LLC (“ING Financial”)(collectively “ING”), Xxxxx Xxxxx Distributors, Inc. (“Distributor”), and
each of the registered open-end management investment companies whose shares are or may be
underwritten by Distributor (each a “Fund” or collectively the “Funds”) listed on Schedule B to the Selling
and Services Agreement and Participation Agreement dated as of October 9, 2007 (the “Agreement”) is
made to the Agreement. Terms defined in the Agreement are used herein as therein defined.
WHEREAS, the parties wish to add ING Institutional to the Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants hereinafter
contained, the parties agree as follows:
1. ING Institutional is hereby added to the Agreement as an additional recordkeeper, and all
provisions in the Agreement relating to ING Life in its capacity as a recordkeeper in connection with the
investment by Plans in the Funds are hereby amended to refer to both ING Life and ING Institutional. The
defined term “ING” in the Agreement is hereby amended to include ING Life, ING Institutional, and ING
Financial
2. Paragraph 2 of the Agreement is hereby deleted in its entirety and replaced with the
following:
2. Omnibus Account.
The parties agree that, with respect to each Fund, up to three omnibus accounts,
each held in the name of the Nominee, may be maintained (the “Account” or
collectively, the “Accounts”). One Account may be maintained in connection with Plans
for which ING Life shall provide various recordkeeping and other administrative
services, and a second Account may be maintained in connection with Plans for which
ING Institutional shall provide various recordkeeping and other administrative services.
A third Account held in the name of ING Life shall be maintained for those Plan assets
directed for investment in the Fund through the Contracts. ING Institutional, as service
agent for Plans, or ING Life, as service agent for Plans or issuer of the Contracts, shall
facilitate purchase and sale transactions with respect to the Accounts in accordance with
the Agreement.
3. The following is added as Section 13(d) to the Agreement:
(d) Representations of ING Institutional. ING Institutional represents and warrants:
(i) that it (1) is a limited liability company organized under the laws of the State
of Delaware, (2) is in good standing in that jurisdiction, (3) is in material compliance
with all applicable federal and state laws, (4) is duly licensed and authorized to conduct
business in every jurisdiction where such license or authorization is required, and will
maintain such license or authorization in effect at all times during the term of this
Agreement, and (5) has full authority to enter into this Agreement and carry out its
obligations pursuant to it terms; and
(ii) that it is authorized under the Plans to (1) provide administrative services to
the Plans and (2) facilitate transactions in the Fund through the Account.
4. The following replaces Section 15(d) of the Agreement:
(d) Notices. All notices and other communications hereunder shall be given or made in
writing and shall be delivered personally, or sent by telex, facsimile, express delivery or
registered or certified mail, postage prepaid, return receipt requested, to the party or parties to
whom they are directed at the following address, or at such other addresses as may be designated
by notice from such party to all other parties.
To ING:
ING
Xxx Xxxxxx Xxx, X0X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxxxx
Worksite Legal
To Distributor:
Xxxxx Xxxxx Distributors, Inc.
Attn: Chief Legal Xxxxxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Any notice, demand or other communication given in a manner prescribed in this Subsection (b)
shall be deemed to have been delivered on receipt.
5. Schedule B to the Agreement is hereby replaced by the Schedule B attached hereto.
6. Servicing Fees.
The provision of shareholder and administrative services to contract owners or to the Plans
shall be the responsibility of ING Financial, ING Life or the Nominee and shall not be the
responsibility of Distributor. The Nominee, or ING Life on behalf of its Separate
Accounts, will be recognized as the sole shareholder of Fund 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 ING Life or ING Institutional a servicing fee
based on the annual rates described in Schedule C of the average net assets invested in the
Funds through the Contracts or through ING Life’s or ING Institutional’s arrangements
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with Plans in each calendar quarter. Distributor will make such payments to ING Life and
ING Institutional within thirty (30) days after the end of each calendar quarter. Each
payment will be accompanied by a statement showing the calculation of the fee payable to
ING Life or ING Institutional for the quarter and such other supporting data as may be
reasonably requested by ING Life or ING Institutional. If required by a Plan or by
applicable law, ING Life or ING Institutional 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 ING Life or ING
Institutional.
7. 12b-1 Fees.
To compensate ING Financial for its distribution of Fund Shares and making the Funds
available under the contracts or other arrangements offered by ING, Distributor shall make
quarterly payments to ING Financial, based on the annual rates:
A shares pay __bp (___bp quarterly)
C shares pay ___bp (___bp monthly)
R shares pay ___bp (____bp quarterly)
I shares do not pay a 12b-1
of the average net assets invested in the Funds through the Contracts or through ING Life’s
arrangements with Plans in each calendar quarter. Distributor will make such payments to
ING Financial within thirty (30) days after the end of each calendar quarter. Each 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.
8. Except as modified hereby, all other terms and conditions of the Agreement shall remain in full
force and effect.
9. This Amendment may be executed in two or more counterparts, each of which shall be deemed
to be an original, but all of which together shall constitute one and the same Amendment.
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ING LIFE INSURANCE AND | XXXXX XXXXX DISTRIBUTORS, INC. | ||
ANNUITY COMPANY | |||
By: | /s/ Xxxx X. Xxxxx | ||
By: | /s/ Xxxx Xxxxxxx | Name: | Xxxx X. Xxxxx, CFA |
Name: | Xxxx Xxxxxxx | Title: | Vice President |
Title: Vice President | |||
ING FINANCIAL ADVISERS, LLC | XXXXX XXXXX FUNDS | ||
(ON BEHALF OF EACH REGISTERED | |||
By: | /s/ Xxxxx Xxxxxx | INVESTEMENT COMPANY LISTED ON | |
Name: | Xxxxx Xxxxxx | SCHEDULE B OF THE AGREEMENT) | |
Title: COO/VP | |||
By: | /s/ Xxxxxxx Xxxxxxxx | ||
Name: | Xxxxxxx Xxxxxxxx | ||
Title: | Treasurer | ||
ING INSTITUTIONAL PLAN SERVICES, LLC | |||
By: | /s/ Xxxxxxxx Xxxxxxxxx attorney in fact | ||
Name: | Xxxxxxxx Xxxxxxxxx | ||
Title: | Vice President |
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SCHEDULE B
Xxxxx Xxxxx Group of Funds
All Class A, C, R and I share classes, as applicable, with the exception of Xxxxx Xxxxx
Tax-Managed Emerging Markets Fund, the Xxxxx Xxxxx Real Estate Fund, the Xxxxx Xxxxx
Atlanta-Capital Large-Cap Growth Fund Class I (EILGX) and municipal bond funds (in any
share class), of each series of the following registered investment companies will be made
available and will only be responsible for payment of fees related to that specific Fund:
Xxxxx Xxxxx Growth Trust (except Xxxxx Xxxxx Atlanta-Capital Large-Cap Growth Fund Class I
(EILGX))
Xxxxx Xxxxx Investment Trust
Xxxxx Xxxxx Mutual Funds Trust
Xxxxx Xxxxx Series Trust
Xxxxx Xxxxx Series Trust II (except Xxxxx Xxxxx Tax-Managed Emerging Markets Fund)
Xxxxx Xxxxx Special Investment Trust (except Xxxxx Xxxxx Real Estate Fund)
Xxxxx Xxxxx Variable Trust
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SCHEDULE C
Fee Schedule
For the term of this Agreement, the Funds shall pay the Plan Servicer the following amounts with
respect to the average daily net asset value of Account balances during each calendar quarter in
Class A, Class C and Class R of each Fund listed in Schedule A.
___bps multiplied by
the number of days in the current quarter/365
multiplied by the total net asset value of Account
balances in the Fund for the preceding month.
For the term of this Agreement, the Funds shall pay the Plan Servicer the following amounts with
respect to the average daily net asset value of Account balances during each calendar quarter in
Class I of each Fund listed in Schedule A.
___bps multiplied by
the number of days in the current quarter/365
multiplied by the total net asset value of Account
balances in the Fund for the preceding month
The Plan Servicer or its designee shall calculate the amount of each quarterly payment and shall
deliver to the Funds a quarterly statement showing the calculation of the amount payable to the
Plan Servicer.
Please provide the following detail in these invoices:
TPA / | Fund Name | Cusip Acct# | Avg Fund | Avg | Sub TA | Fees |
Client | Assets | Participant | (bps) | Due | ||
Name | Count |
These invoices can be e-mailed to the address below:
TO: XXxxxxxx@XxxxxXxxxx.xxx
CC: Xxxxxxxxx@XxxxxXxxxx.xxx
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