Contract
Exhibit 24(b)(8.87) | |
AMENDMENT TO | |
FUND PARTICIPATION AGREEMENT | |
(Institutional and Service Shares) | |
This Amendment ("Amendment") to the Fund Participation Agreement is entered into as | |
of March 22nd, 2013 by and among Janus Aspen Series (the "Fund"), Janus Capital Management | |
LLC (the "Adviser"), and ING Life Insurance and Annuity Company (the "Company"). | |
RECITALS | |
WHEREAS, the Fund, the Adviser and the Company are currently parties to the Fund | |
Participation Agreement for Institutional and Service Shares dated December 8, 1997, as | |
amended (the "Agreement"); | |
WHEREAS, on December 31, 2005, the Company's affiliate ING Insurance Company of | |
America ("IICA") merged into the Company ("Merger"), and as a result of the Merger, the | |
Company assumed responsibility for all of IICA's obligations under IICA's Fund Participation | |
Agreement dated December 8, 1997, as amended ("IICA Agreement") which are identical in | |
nature to the obligations set forth in this Agreement; | |
WHEREAS, the parties wish to update Schedule A of the Agreement to combine all Accounts | |
for which the Company is responsible under one Agreement; | |
WHEREAS, the parties wish to update Schedule B of the Agreement; | |
WHEREAS, the parties wish to include provisions for trading via the National Securities | |
Clearing Corporation ("NSCC"); and | |
WHEREAS, the parties wish to further amend the Agreement as set forth below. | |
AMENDMENT | |
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby | |
acknowledged, the parties agree to amend the Agreement as follows: | |
1. | The following is added as Section 2(h) to the Agreement: |
(h) In lieu of applicable provisions set forth in paragraphs 2(c) and 2(d) above, the | |
parties may agree to execute orders and wire payments for purchases and redemptions | |
through NSCC's Fund/SERV System, in which case such activities will be governed | |
by the provisions set forth in Schedule D to this Agreement. In addition, the parties | |
may also provide pricing information in accordance with Schedule D. | |
2. | Schedule D, attached hereto, is hereby added to the Agreement. |
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3. | Schedule A to the Agreement shall be deleted in its entirety and replaced with the | |
amended Schedule A attached hereto. | ||
4. | The IICA Agreement and associated Service Agreement dated December 8, 1997 and | |
Distribution and Shareholder Services Agreement dated August 1, 2000 are hereby | ||
terminated as of the effective date of this Amendment and replaced with the | ||
Agreement, as hereby amended, and its associated Service Agreement dated | ||
December 8, 1997 and Distribution and Shareholder Services Agreement dated | ||
August 1, 2000. | ||
5. | Schedule B to the Agreement shall be deleted in its entirety and replaced with the | |
amended Schedule B attached hereto. | ||
6. | Article 11(b) shall be revised as follows: | |
"To the Company: | ||
ING Life Insurance and Annuity Company | ||
Xxx Xxxxxx Xxx, X0X | ||
Xxxxxxx, XX 00000-0000 | ||
Attention: Xxxxxxxxxx Xxxxxxx, Legal | ||
To the Fund: | ||
Janus Aspen Series | ||
000 Xxxxxxx Xxxxxx | ||
Xxxxxx, XX 00000 | ||
Attn: Chief Legal Counsel | ||
To the Adviser: | ||
Janus Capital Management LLC | ||
000 Xxxxxxx Xxxxxx | ||
Xxxxxx, XX 00000 | ||
Attn: General Counsel" | ||
7. | Article 11(g) shall be deleted in its entirety and replaced with the following: | |
"(g) | Governing Law. This Agreement shall be governed and interpreted in | |
accordance with the laws of the State of Colorado." | ||
8. | The following shall be added to the end of the Agreement: | |
"13. The Company certifies that it is following all relevant rules and regulations, as | ||
well as internal policies and procedures, regarding "forward pricing" and the handling of mutual | ||
fund orders on a timely basis. As evidence of its compliance, the Company shall: | ||
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(a) | permit the Fund or its agent to audit its operations, as well as any books | |
and records preserved in connection with its provision of services under this Agreement; | ||
(b) | upon the Fund's request provide the Fund with the results of a Statement | |
on Standards for Attestation Engagements No. 16 (SSAE-16) review or similar report of | ||
independent auditors; or | ||
(c) | upon the Fund's request provide annual certification to the Fund that it is | |
following all relevant rules, regulations, and internal policies and procedures regarding "forward | ||
pricing" and the handling of mutual fund orders on a timely basis. | ||
14. | The Company represents and warrants that it is a "financial intermediary" as | |
defined by SEC Rule 22c-2 of the 1940 Act ("The Rule"), and the Fund and the Adviser | ||
represent and warrant that they have entered into an appropriate agreement with the Company | ||
pursuant to the requirements of The Rule. | ||
15. | The Company represents and warrants that it is in compliance with all applicable | |
anti-money laundering laws, rules and regulations including, but not limited to, the U.S.A. | ||
PATRIOT Act of 2001, P.L. 107-56. The Company further represents that it has policies and | ||
procedures in place to detect money laundering and terrorist financing, including the reporting of | ||
suspicious activity. | ||
16. | Janus Aspen Protected Series Portfolios ("PSP"). In the event the net asset value | |
("NAV") falls below the protected NAV as described in the current prospectus, a PSP will | ||
proceed to liquidation and all portfolio securities of such PSP not already converted to cash or | ||
cash equivalents will be converted to cash and cash equivalents and will remain in cash and cash | ||
equivalents until the PSP is liquidated which will occur within 120 days of the Termination Date | ||
as defined in the current prospectus (the "Liquidation Date"). The Company acknowledges that | ||
any Shares held by the Company on the Liquidation Date shall be redeemed for cash. | ||
The Company agrees to notify the Fund of any large redemption (representing $1 | ||
million or more of the Portfolio) at least five (5) days in advance (or as soon as reasonably | ||
practicable) of such redemption." | ||
9. | The Agreement, as supplemented by this Amendment, is ratified and confirmed. | |
10. | This Amendment may be executed in two or more counterparts which together | |
shall constitute one instrument. | ||
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IN WITNESS WHEREOF, the parties have caused their duly authorized officers to execute this | ||
Amendment as of the date and year first above written. | ||
JANUS ASPEN SERIES | ING LIFE INSURANCE AND ANNUITY | |
COMPANY | ||
By: /s/Xxxxxxxxx Xxxxxxxxxx | By: /s/Xxxx Xxxxxxx | |
Name: | Xxxxxxxxx Xxxxxxxxxx | Name: |
Title: | Vice President | Title: |
JANUS CAPITAL MANAGEMENT LLC | ||
By: /s/Xxxxxxx X. Xxxxxxx | ||
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Senior Vice President | |
JANUS DISTRIBUTORS LLC | ||
By: /s/Xxxxxxx X. Xxxxxxx | ||
Name: | Xxxxxxx X. Xxxxxxx | |
Title: | Senior Vice President | |
This signature is solely for the purpose of | ||
Terminating IICA 's Distribution and | ||
Shareholder Services Agreement dated August | ||
1, 2000 as set forth in Paragraph 4. | ||
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Schedule A |
Variable Annuity Account I |
Variable Annuity Account B |
Variable Life Account B |
Variable Annuity Account C |
Variable Annuity Account D |
Variable Annuity Account F |
|
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Schedule B |
Portfolios |
All Portfolios of Janus Aspen Series open to new investors (as set forth in the current prospectus |
of Janus Aspen Series), including the Janus Aspen Protected Series. |
|
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Schedule 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. As provided in Section 2 of Fund Participation Agreement, the parties hereby agree to provide |
pricing information, execute orders and wire payments for purchases and redemptions of Fund |
shares through the NSCC and its subsidiary systems as follows: |
(a) Fund or its affiliate will furnish to Company or its affiliate through NSCC's Mutual Fund |
Profile System ("MFPS") as well as via email directly to ING at xxxxxxxxxxxx@xx.xxx.xxx |
(1) the most current NAV information for each Fund, (2) a schedule of anticipated dividend |
and distribution payment dates for each Fund, which is subject to change without prior |
notice, ordinary income and capital gain dividend rates on the 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 Company or its affiliate by 7:00 p.m. |
Eastern Time on each business day that the Fund is open for business (each a "Business |
Day"). Changes in pricing information will be communicated to both NSCC and Company |
or its affiliate. |
(b) Upon receipt of Fund purchase, exchange and redemption instructions for acceptance as of |
the time at which a Fund's NAV is calculated as specified in such Fund's 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 Shares, Company or its |
affiliate will calculate the net purchase or redemption order for each Fund. Orders for net |
purchases or net redemptions derived from Instructions received by ING Financial or its |
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 Company's or its affiliate's compliance with the foregoing, Company or its |
affiliate will be considered the agent of the Adviser and the Fund or its affiliate, and the |
Business Day on which Instructions are received by Company or its affiliate in proper form |
prior to the Close of Trading will be the date as of which Shares of the Funds are deemed |
purchased, exchanged or redeemed pursuant to such Instructions. Instructions received in |
proper form by Company or its 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 NAV in accordance with the Fund's |
then current prospectuses. |
(c) Company or its affiliate will wire payment for net purchase orders by the Fund or its |
affiliate's NSCC Firm Number, in immediately available funds, to an NSCC settling bank |
account designated by Company or its 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. |
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(d) NSCC will wire payment for net redemption orders by Fund, in immediately available funds, |
to an NSCC settling bank account designated by Company or its affiliate, by 5:00 p.m. |
Eastern Time on the Business Day such redemption orders are communicated to NSCC, |
except as provided in a Fund's prospectus and statement of additional information. |
(e) With respect to (c) or (d) above, if Fund or its affiliate does not send a confirmation of |
Company's or its 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 Company or its affiliate or Fund or its affiliate 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 Fund or its |
affiliate or to Company or its affiliate, as applicable, as is otherwise provided in Section 2 of |
the Agreement. |
(g) These procedures are subject to any additional terms in each Fund's prospectus and the |
requirements of applicable law. The Funds reserve the right, at their discretion and without |
notice, to suspend the sale of Shares or withdraw the sale of Shares of any Fund. |
2. Company or its affiliate, the Fund or its affiliate 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 Schedule D. |
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