Exhibit 99.B(e)(2)(A)
AMENDMENT
TO
DISTRIBUTION AGREEMENT
ING INVESTORS TRUST
The Distribution Agreement dated August 21, 2003, by and between Directed
Services, Inc., ("DSI") and ING Investors Trust, (the "Trust") (the "Agreement")
is hereby amended as of October 1, 2003, in the manner set forth below:
WHEREAS, the USA Patriot Act of 2001 and the regulations promulgated thereunder
(collectively, the "USA Patriot Act") imposes anti-money laundering requirements
on financial institutions, including mutual funds;
WHEREAS, the Trust recognizes the importance of complying with the USA Patriot
Act and the Trust has developed and implemented a written anti-money laundering
policy in conjunction with ING Americas, which incorporates a customer
identification program, that is designed to satisfy the requirements of the USA
Patriot Act (the "Trust's AML Program");
WHEREAS, the USA Patriot Act authorizes a mutual fund to delegate to a service
provider, including its transfer agent, the implementation and operation of
aspects of the Trust's AML Program;
WHEREAS, pursuant to the Trust's AML Program, the Trust relies on DSI, a
broker-dealer and the Trust's principal underwriter, to establish and verify the
identity of its institutional account holder customers, the source of such
customer funds and the nature of the customer's business, and the Trust's Board
of Trustees has determined that it is reasonable to rely on DSI for such
services;
WHEREAS, the Trust desires to delegate to DSI the implementation and operation
of its customer identification program and DSI desires to accept such
delegation; and
NOW THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements hereinafter contained, the parties hereby agree to amend the
Agreement pursuant to the terms thereof, as follows:
1. DUTIES
1.1 Subject to the terms and conditions set forth in the Agreement, the
Trust hereby delegates to DSI the following functions with respect to
the implementation of new customer accounts and the operation of
existing customer accounts as required by the Trust's AML Program and
Section 103.131(b) of Section 326 of the USA Patriot Act (the "CIP
Regulations"), effective October 1, 2003:
- Obtaining the following identifying information from each
customer, as applicable: (i) name, (ii) address, and (iii) tax payer
identification number;
- Verifying the identification of each institutional account
holder, through documents or through non-documentary methods, in
accordance with the CIP Regulations, so as to permit a reasonable
belief that the true identity of the customer is known, provided
however, that when it is determined that a prospective institutional
account holder is a subsidiary of ING Groep, N.V., the verification of
such entity's identity will not need to be separately verified other
than the collection of its name, address and tax identification
number;
- Determining, within the time required by law, whether the
institutional account holder appears on any list of known or suspected
terrorists or terrorist agencies issued by a Federal government agency
and designated as such by the Department of Treasury;
- In consultation with the Trust's Money Laundering Reporting
Officer ("MLRO") as applicable, determining, in a case in which
identity cannot be verified, what action should be taken with respect
to the institutional account holder and whether a suspicious activity
report should be filed; and
- Creating and retaining records documenting the performance of
these functions as required by the Trust's AML Program.
1.2 DSI agrees to perform such delegated duties subject to and in
accordance with the terms and conditions of the Agreement. DSI has
provided a copy of its anti-money laundering program to the Trust and
will provide to the Trust any material modifications to its anti-money
laundering program promptly after their adoption. With respect to any
internal audits of DSI's anti-money laundering program, DSI agrees to
provide a prompt report regarding any exceptions to its program in
connection with the Trust and its institutional accounts to the
Trust's designated MLRO provided such disclosure is permitted by the
information sharing provisions of the USA Patriot Act.
2. REPRESENTATION
DSI represents that it is subject to NASD Rule 3011 implementing the
anti-money laundering compliance program requirements of 31 U.S.C. 5318(h)
and is regulated by the U.S. Securities and Exchange Commission, a federal
functional regulator.
3. CERTIFICATION
In connection with the performance by DSI of the above-delegated duties,
DSI agrees that it shall certify to the Trust, on an annual basis, that DSI
(i) has implemented an anti-money laundering program reasonably calculated
to comply with the USA Patriot Act and other applicable laws and
regulations, and (ii) has performed the functions that it has agreed to
perform in Section 1 above.
4. CONSENT TO EXAMINATION
In connection with the performance by DSI of the above-delegated duties,
DSI understands and acknowledges that the Trust remains responsible for
ensuring compliance with the USA Patriot Act and that the records DSI
maintains for the Trust relating to the Trust's AML Program may be subject,
from time to time, to examination and/or inspection by federal regulators
in order that the regulators may evaluate such compliance. DSI hereby
consents to such examination and/or inspection and agrees to cooperate with
such federal examiners in connection with their review. For purposes of
such examination and/or inspection, DSI will use its best efforts to make
available during normal business hours, all required records and
information concerning the implementation of the Trust's customer
identification program for review by such examiners.
5. LIMITATION OF DELEGATION
The Trust acknowledges and agrees that in accepting the delegation
hereunder, DSI is agreeing to perform only those aspects of the Trust's AML
Program relating to the implementation and operation of customer accounts
as specified in Section 1 above that have been expressly delegated hereby
and is not undertaking and shall not be responsible for any other aspect of
the Trust's AML Program or for the overall compliance by the Trust with the
USA Patriot Act.
6. MISCELLANEOUS
6.1 In all other regards, the terms and provisions of the Agreement shall
continue to apply with full force and effect.
6.2 Each party represents to the other that the execution and delivery of
this Amendment has been duly authorized.
IN WITNESS WHEREOF, each of the parties has caused this Amendment to be executed
in its name and behalf by its duly authorized representative as of the date set
forth above.
ING INVESTORS TRUST
By: /s/ Xxxxxx X. Naka
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Name: Xxxxxx X. Naka
Title: Senior Vice President
DIRECTED SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: SVP
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