First Amendment to the Selling and Services Agreement and Participation Agreement
Exhibit 24(b)(8.164)
First Amendment to the Selling and Services Agreement and Participation Agreement
This First Amendment dated as of March 30, 2009 by and between ING Life Insurance and Annuity Company (“ING Life”), ReliaStar Life Insurance Company (“ReliaStar”), ReliaStar Life Insurance Company of New York (“ReliaStar of NY”)(collectively “Insurers”), ING Institutional Plan Services, LLP (“ING Institutional”), ING Financial Advisers, LLC (“ING Financial”)(collectively “ING”), and TCW Brokerage Services (“Distributor”), is made to the Selling and Services Agreement and Fund Participation Agreement dated as of May 1, 2004 (the “Agreement”). Terms defined in the Agreement are used herein as therein defined.
WHEREAS, the parties wish to add ING Institutional to the Agreement; and
WHEREAS, ING Insurance Company of America, an original party to the Agreement, merged into ING Life Insurance and Annuity Company; and
WHEREAS, the parties wish to make additional funds available under 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 Insurers in their capacity as a recordkeeper in connection with the investment by Plans in the Funds are hereby amended to include ING Institutional. It is hereby understood, however, that ING Institutional is not an insurance company. The defined terms “ING” in the Agreement is hereby amended to include ING Institutional.
2. ING Insurance Company of America is hereby removed from the Agreement.
3. 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, a single omnibus account held in the name of the Nominee shall be maintained for those Plan assets directed for investment directly in the Fund, and a single omnibus account held in the name of each Insurer shall be maintained for those Plan assets directed for investment in the Fund through the Contracts (collectively, the “Accounts.”) Alternatively, Accounts in the name of the Nominee may be maintained for each Insurer who serves as service agent for Plan assets directed for investment directly in the Fund. Insurers as issuers of the Contracts or as service agent for the Plans, shall facilitate purchase and sale transactions with respect to the Accounts in accordance with the Agreement.
4. Paragraphs 4 and 5 of the Agreement are hereby deleted in their entirety and replaced with the following:
4. Servicing Fees:
The provision of shareholder and administrative services to contract owners or to the Plans shall be the responsibility of ING Financial, Insurers, or the Nominee and shall not be the responsibility of Distributor. The Nominee, or Insurers on behalf of their 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 the applicable Insurer, as appropriate, a servicing fee, as specified in Schedule B (attached), based on the average net assets invested in the Funds through the Contracts or through Insurer’s arrangements with Plans in each calendar quarter. Distributor will make such payments to each Insurer 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 Insurer for the quarter and such other supporting data as may be reasonably requested by Insurer. If required by a Plan or by applicable law, Insurer 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 Insurer.
5. 12b-1 Fees.
To compensate ING Financial for its distribution of Fund Shares or administrative services related to Fund Shares, Distributor shall make quarterly payments to ING Financial, as specified in Schedule B (attached), based on the average net assets invested in the Funds through the Contracts or through each Insurer’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.
In the event a fund omnibus Plan account “N” or “I” Share Class Position is also subject to a Plan of Distribution or revenue sharing broker-dealer payment, ING Financial will receive no payment on such omnibus Plan account “N” or “I” Share Class Position. To avoid confusion, the foregoing means that ING Financial will not receive a fee if Distributor is also paying a fee to a broker-dealer with respect to the omnibus Plan account “N” or “I” Share Class Position.
5. The following is added as Section 12(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
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(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.
6. The following replaces Section 14(b) of the Agreement:
(b) 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:
Xxxxxxx Xxxxxxxxxx
Counsel
ING Americas Legal Services
Xxx Xxxxxx Xxx, X0X
Xxxxxxx, XX 00000
Fax: 000-000-0000
To Distributor:
TCW Funds Distributors
000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Any notice, demand or other communication given in a manner prescribed in this Subsection (b) shall be deemed to have been delivered on receipt.
7. Schedule A is hereby deleted and replaced by Schedule A, attached hereto.
8. Schedule B, attached hereto, is hereby added to the Agreement.
9. Except as modified hereby, all other terms and conditions of the Agreement shall remain in full force and effect.
10. 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.
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the date first written above
[Signatures appear on following page.]
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ING LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Vice President
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TCW FUNDS DISTRIBUTORS
By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Senior Vice President
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ING Financial ADvisers, LLC
By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: COO/VP |
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ING INSTITUTIONAL PLAN SERVICES, LLC
By: /s/ Xxxxxxxx Xxxxxxxxx attorney in fact Name: Xxxxxxxx Xxxxxxxxx Title: Vice President |
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RELIASTAR LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx Name: Xxxxx Xxxxx Title: Sr. Vice President |
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RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Vice President |
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SCHEDULE B
Fee Schedule
As compensation for the services ING renders under the Agreement, Distributor will pay a fee to ING equal to on an annual basis the rate set forth below multiplied by the average daily value of the assets in ING accounts in the Funds.
|
"N" Shares |
Service Fees |
12b-1 Fees |
Total Fees |
Symbol |
Cusip Number |
|
TCW Balanced Fund - "N" Share |
bps. |
bps. |
bps. |
TGBNX |
00000X000 |
|
TCW Relative Value Large Cap Fund - "N" Share |
bps. |
bps. |
bps. |
TGDVX |
00000X000 |
|
TCW Dividend Focused Fund - "N" Share |
bps. |
bps. |
bps. |
TGIGX |
00000X000 |
|
TCW Focused Equities Fund - "N" Share |
bps. |
bps. |
bps. |
TGFVX |
00000X000 |
|
TCW Growth Equities Fund - "N" Share |
bps. |
bps. |
bps. |
TGDNX |
00000X000 |
|
TCW Growth Fund - "N" Share |
bps. |
bps. |
bps. |
TGGYX |
00000X000 |
|
TCW Large Cap Growth Fund - "N" Share |
bps. |
bps. |
bps. |
TGLFX |
00000X000 |
|
TCW Relative Value Small Cap Fund - "N" Share |
bps. |
bps. |
bps. |
TGONX |
00000X000 |
|
TCW Select Equities Fund - "N" Share |
bps. |
bps. |
bps. |
TGCNX |
00000X000 |
|
TCW Small Cap Growth Fund - "N" Share |
bps. |
bps. |
bps. |
TGSNX |
00000X000 |
|
TCW Value Opportunities Fund - "N" Share |
bps. |
bps. |
bps. |
TGVNX |
00000X000 |
|
TCW Core Fixed Income Fund - "N" Share |
bps. |
bps. |
bps. |
TGFNX |
00000X000 |
|
TCW High Yield Bond Fund - "N" Share |
bps. |
bps. |
bps. |
TGHNX |
00000X000 |
|
TCW Total Return Bond Fund - "N" Share |
bps. |
bps. |
bps. |
TGMNX |
00000X000 |
|
TCW Emerging Markets Income Fund - "N" Share |
bps. |
bps. |
bps. |
TGINX |
00000X000 |
|
TCW Conservative Allocation Fund - "N" Share |
bps. |
bps. |
bps. |
TGPNX |
00000X000 |
|
TCW Moderate Allocation Fund - "N" Share |
bps. |
bps. |
bps. |
TGPOX |
00000X000 |
|
TCW Aggressive Allocation Fund - "N" Share |
bps. |
bps. |
bps. |
TGPLX |
00000X000 |
|
|
|
|
|
|
|
|
"I" Shares |
Service Fees |
|
Total Fees |
Symbol |
Cusip Number |
|
TCW Balanced Fund - "I" Share |
bps. |
n/a |
bps. |
TGBIX |
00000X000 |
|
TCW Relative Value Large Cap Fund - "I" Share |
bps. |
n/a |
bps. |
TGDIX |
00000X000 |
|
TCW Dividend Focused Fund - "I" Share |
bps. |
n/a |
bps. |
TGDFX |
00000X000 |
|
TCW Focused Equities Fund - "I Share" |
bps. |
n/a |
bps. |
TGFFX |
00000X000 |
|
TCW Growth Equities Fund - "I" Share |
bps. |
n/a |
bps. |
TGGEX |
00000X000 |
|
TCW Growth Fund - "I" Share |
bps. |
n/a |
bps. |
TGGIX |
00000X000 |
|
TCW Large Cap Growth Fund - "I" Share |
bps. |
n/a |
bps. |
TGLCX |
00000X000 |
|
TCW Relative Value Small Cap Fund - "I" Share |
bps. |
n/a |
bps. |
TGOIX |
00000X000 |
|
TCW Select Equities Fund - "I" Share |
bps. |
n/a |
bps. |
TGCEX |
00000X000 |
|
TCW Small Cap Growth Fund - "I" Share |
bps. |
n/a |
bps. |
TGSCX |
00000X000 |
|
TCW Value Opportunities Fund - "I" Share |
bps. |
n/a |
bps. |
TGVOX |
00000X000 |
|
TCW Core Fixed Income Fund - "I" Share |
bps. |
n/a |
bps. |
TGCFX |
00000X000 |
|
TCW High Yield Bond Fund - "I" Share |
bps. |
n/a |
bps. |
TGHYX |
00000X000 |
|
TCW Money Market Fund - "I" Share |
n/a |
n/a |
n/a |
TCWXX |
00000X000 |
|
TCW Short Term Bond Fund - "I" Share |
bps. |
n/a |
bps. |
TGSMX |
00000X000 |
|
TCW Total Return Bond Fund - "I" Share |
bps. |
n/a |
bps. |
TGLMX |
00000X000 |
|
TCW Emerging Markets Income Fund - "I" Share |
bps. |
n/a |
bps. |
TGEIX |
00000X000 |
|
TCW Conservative Allocation Fund - "I" Share |
bps. |
n/a |
bps. |
TGPCX |
00000X000 |
|
TCW Moderate Allocation Fund - "I" Share |
bps. |
n/a |
bps. |
TGPMX |
00000X000 |
|
TCW Aggressive Allocation Fund - "I" Share |
bps. |
n/a |
bps. |
TGPBX |
00000X000 |
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