1
EXHIBIT 99.H(1)
FORM OF
FUND SERVICES AGREEMENT
THIS AGREEMENT is made this ___ day of ______, 2000 by and between ING VARIABLE
INSURANCE TRUST, a Delaware business trust (the "Trust"), on behalf of each of
its series as listed in Schedule A (each, a "Fund", and collectively, the
"Funds"), and ING FUND SERVICES CO. LLC, a Delaware limited liability company
("ING Fund Services").
W I T N E S S E T H
WHEREAS, the Trust is registered as an open-end, investment company
under the Investment Company Act of 1940, as amended (the "Investment Company
Act"), and the rules and regulations promulgated thereunder; and
WHEREAS, the Trust is authorized to issue shares of beneficial interest
in the Trust (the "Shares") in separate series, with each such series
representing interests in a separate portfolio of securities or other assets;
WHEREAS, the Trust initially intends to offer Shares in those Funds
identified in the attached Schedule A, each such Fund, together with all other
Funds subsequently established by the Fund, shall be subject to this Agreement
in accordance with Article 11;
WHEREAS, the Trust on behalf of the Funds, desires to appoint ING Fund
Services as its fund accounting agent, transfer agent, dividend disbursing
agent, account servicing agent, and agent in connection with certain other
activities and ING Fund Services desires to accept such appointment;
NOW THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt whereof is
hereby acknowledged, the parties hereto agree as follows:
Article 1. Definitions
1.1 Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Trust, or (ii) any person, whether or not such person
is an officer or employee of the Trust, duly authorized to give Oral
Instructions or Written Instructions on behalf of the Trust as indicated in
writing to ING Fund Services from time to time.
(b) "Board of Trustees" shall mean the Board of Trustees of
the Trust.
(c) "Commission" shall mean the Securities and Exchange
Commission.
2
2
(d) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Trust may from time to time deposit, or
cause to be deposited or held under the name or account of such a custodian
pursuant to a Custodian Agreement.
(e) "1934 Act" shall mean the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder, all as amended from
time to time.
(f) "Oral Instructions" shall mean instructions, other than
written instructions, actually received by ING Fund Services from a person
reasonably believed by ING Fund Services to be an Authorized Person.
(g) "Prospectus" shall mean the most recently dated Fund
Prospectus and Statement of Additional Information, including any supplements
thereto, if any, which has become effective under the Securities Act of 1933 and
the Investment Company Act of 1940, as amended.
(h) "Shareholder" shall mean a record owner of Shares of a
Fund.
(i) "Written Instructions" shall mean a written
communication signed by a person reasonably believed by ING Fund Services to be
an Authorized Person and actually received by ING Fund Services. Written
Instructions shall include manually executed originals and authorized electronic
transmissions, including telefacsimile of a manually executed original or other
process.
Article 2. Appointment. The Trust, on behalf of the Funds, hereby
appoints and constitutes ING Fund Services as its sole and exclusive transfer
agent and dividend disbursing agent for Shares of each respective Fund of the
Trust and as fund accounting agent and account servicing agent for the Trust and
ING Fund Services hereby accepts such appointments and agrees to perform the
duties hereinafter set forth.
Article 3. Duties of ING Fund Services
3.1 ING Fund Services shall be responsible for:
(a) Administering and/or performing the customary services
of a transfer agent acting as service agent in connection with dividend and
distribution functions; and for performing account servicing and administrative
agent functions in connection with the issuance, transfer and redemption or
repurchase (including coordination with the Custodian) of Shares of each Fund,
as more fully described in the written schedule of Duties of ING Fund Services
annexed hereto as Schedule B and incorporated herein, and in accordance with the
terms of the Prospectus of the Trust on behalf of the applicable Fund,
applicable law and the procedures established from time to time between ING Fund
Services and the Trust.
3
3
(b) Recording the issuance of Shares and maintaining
pursuant to Rule 17Ad-10(e) of the 1934 Act a record of the total number of
Shares of each Fund which are authorized, based upon data provided to it by the
Trust, and issued and outstanding. ING Fund Services shall provide the Trust on
a regular basis with the total number of Shares of each Fund which are
authorized and issued and outstanding and shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Trust.
(c) ING Fund Services shall be responsible for the
following: performing the customary services of a fund accounting agent for the
Trust, as more fully described in the written schedule of Duties of ING Fund
Services annexed hereto as Schedule B and incorporated herein, and subject to
the supervision and direction of the Board of Trustees of the Trust.
(d) Notwithstanding any of the foregoing provisions of this
Agreement, ING Fund Services shall be under no duty or obligation to inquire
into, and shall not be liable for (i) the legality of the issuance or sale of
any Shares or the sufficiency of the amount to be received therefor; (ii) the
legality of the redemption of any Shares, or the propriety of the amount to be
paid therefor; (iii) the legality of the declaration of any dividend by the
Board of Trustees, or the legality of the issuance of any Shares in payment of
any dividend or (iv) the legality of any recapitalization or readjustment of the
Shares.
3.2 In addition, the Trust shall (i) identify to ING Fund
Services in writing those transactions and assets to be treated as exempt from
blue sky reporting for each State and (ii) verify the establishment of
transactions for each State on the system prior to activation and thereafter
monitor the daily activity for each State. The responsibility of ING Fund
Services for the Trust's blue sky State registration status is solely limited to
the initial establishment of transactions subject to blue sky compliance by the
Trust and the reporting of such transactions to the Trust as provided above.
3.3 In performing its duties under this Agreement, ING Fund
Services: (a) will act in accordance with the Trust Instrument, By-Laws,
Prospectuses and with the Oral Instructions and Written Instructions of the
Trust and will conform to and comply with the requirements of the Investment
Company Act and all other applicable federal or state laws and regulations and
(b) will consult with legal counsel to the Trust, as necessary and appropriate.
Furthermore, ING Fund Services shall not have or be required to have any
authority to supervise the investment or reinvestment of the securities or other
properties which comprise the assets of the Trust or any of its Funds and shall
not provide any investment advisory services to the Trust or any of its Funds.
3.4 In addition to the duties set forth herein, ING Fund
Services shall perform such other duties and functions, and shall be paid such
amounts therefor, as may from time to time be agreed upon in writing between the
Trust and ING Fund Services.
Article 4. Recordkeeping and Other Information
4
4
4.1 ING Fund Services shall create and maintain all records
required of it pursuant to its duties hereunder and as set forth in Schedule B
in accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the Investment Company Act. Where applicable, such
records shall be maintained by ING Fund Services for the periods and in the
places required by Rule 31a-2 under the Investment Company Act.
4.2 To the extent required by Section 31 of the Investment
Company Act, ING Fund Services agrees that all such records prepared or
maintained by ING Fund Services relating to the services to be performed by ING
Fund Services hereunder are the property of the Trust and will be preserved,
maintained and made available in accordance with such section, and be
surrendered promptly to the Trust on and in accordance with the Trust's request.
4.3 In case of any requests or demands for the inspection of
Shareholder records of the Trust, ING Fund Services will endeavor to notify the
Trust of such request and secure Written Instructions as to the handling of such
request. ING Fund Services reserves the right, however, to exhibit the
Shareholder records to any person whenever it is advised by its counsel that it
may be held liable for the failure to comply with such request.
Article 5. Trust Instructions
5.1 ING Fund Services will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an authorized person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Trust. ING Fund Services will also have no liability when
processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the officers of the Trust and the proper
countersignature of ING Fund Services.
5.2 At any time, ING Fund Services may request Written
Instructions from the Trust and may seek advice from legal counsel for the
Trust, or its own legal counsel, with respect to any matter arising in
connection with this Agreement, and it shall not be liable for any action taken
or not taken or suffered by it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Trust or for
ING Fund Services. Written instructions requested by ING Fund Services will be
provided by the Trust within a reasonable period of time.
5.3 ING Fund Services, its officers, agents or employees,
shall accept Oral Instructions or Written Instructions given to them by any
person representing or acting on behalf of the Trust only if said representative
is an Authorized Person. The Trust agrees that all Oral Instructions shall be
followed within one business day by confirming Written Instructions, and that
the Trust's failure to so confirm shall not impair in any respect ING Fund
Services' right to rely on Oral Instructions.
5
5
Article 6. Compensation
6.1 The Trust on behalf of each of the Funds will compensate
ING Fund Services for the performance of its obligations hereunder in accordance
with the fees set forth in the written Fee Schedule annexed hereto as Schedule C
and incorporated herein. In addition to those fees set forth in Section 6.1, the
Trust on behalf of each of the Funds agrees to pay, and will be billed
separately for, reasonable out-of-pocket expenses incurred by ING Fund Services
in the performance of its duties hereunder.
6.2 The Trust on behalf of the Funds agrees to pay all fees
and out-of-pocket expenses to ING Fund Services by federal funds wire within
fifteen (15) business days following the receipt of the respective invoice.
6.3 Any compensation agreed to hereunder may be adjusted from
time to time by attaching to Schedule C, a revised Fee Schedule executed and
dated by the parties hereto.
6.4 ING Fund Services will from time to time employ or
associate with itself such person or persons as ING Fund Services may believe to
be particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
ING Fund Services and the Trust. The compensation of such person or persons
shall be paid by ING Fund Services and no obligation shall be incurred on behalf
of the Fund in such respect.
6.5 ING Fund Services shall not be required to pay any of the
following expenses incurred by the Trust: membership dues in the Investment
Company Institute or any similar organization; investment advisory expenses;
costs of printing and mailing stock certificates, prospectuses, reports and
notices; interest on borrowed money; brokerage commissions; stock exchange
listing fees; taxes and fees payable to Federal, state and other governmental
agencies; fees of the Trust's Board of Trustees who are not affiliated with ING
Fund Services; outside auditing expenses; outside legal expenses; Blue Sky
registration or filing fees; or other expenses not specified in this Section 6.5
which may be properly payable by the Fund.
Article 7. ING Fund Services System
7.1 ING Fund Services shall retain title to and ownership of
any and all databases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents, copyrights,
trade secrets, and other related legal rights utilized by ING Fund Services in
connection with the services provided by ING Fund Services to the Trust herein
(the "ING Fund Services System").
7.2 ING Fund Services hereby grants to the Trust a limited
license to the ING Fund Services System for the sole and limited purpose of
having ING Fund Services provide the services contemplated hereunder and nothing
contained in this Agreement shall
6
6
be construed or interpreted otherwise and such license shall immediately
terminate with the termination of this Agreement.
Article 8. Representations and Warranties
8.1 ING Fund Services represents and warrants to the Trust
that:
(a) it is a limited liability company duly organized,
existing and in good standing under the laws of Delaware;
(b) it is empowered under applicable laws and by its
organizational documentation to enter into and perform this Agreement;
(c) all requisite company proceedings have been taken to
authorize it to enter into this Agreement; and
(d) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
8.2 The Fund represents and warrants to ING Fund Services that:
(a) it is duly organized, existing and in good standing
under the laws of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Trust
Instrument and By-Laws to enter into this Agreement;
(c) all proceedings required by said Trust Instrument,
By-Laws and applicable laws have been taken to authorize it to enter into this
Agreement;
(d) a registration statement under the Securities Act of
1933, as amended, and the Investment Company Act on behalf of each of the Funds
is currently effective and will remain effective, and all appropriate state
securities law filings have been made and will continue to be made, with respect
to all Shares of the Fund being offered for sale;
(e) all outstanding Shares are validly issued, fully paid
and nonassessable and when Shares are hereafter issued in accordance with the
terms of the Trust's Trust Instrument and its Prospectus with respect to each
Fund, such Shares shall be validly issued, fully paid and nonassessable; and
(f) as of the date hereof, each Fund is duly registered and
lawfully eligible for sale in each jurisdiction indicated for such Fund and the
Trust will notify ING Fund Services immediately of any changes.
7
7
Article 9. Indemnification
9.1 ING Fund Services shall not be responsible for and the
Trust on behalf of each Fund shall indemnify and hold ING Fund Services harmless
from and against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of any sort
or kind which may be asserted against ING Fund Services or for which ING Fund
Services may be held to be liable (a "Claim") arising out of or attributable to
any of the following:
(a) any actions of ING Fund Services required to be taken
pursuant to this Agreement unless such Claim resulted from a negligent act or
omission to act or bad faith by ING Fund Services in the performance of its
duties hereunder;
(b) ING Fund Services' reasonable reliance on, or reasonable
use of information, data, records and documents (including but not limited to
magnetic tapes, computer printouts, hard copies and microfilm copies) received
by ING Fund Services from the Trust, or any authorized third party acting on
behalf of the Trust, in the performance of ING Fund Services' duties and
obligations hereunder;
(c) the reliance on, or the implementation of, any Written
or Oral Instructions or any other instructions or requests of the Trust on
behalf of the applicable Fund;
(d) the offer or sales of shares in violation of any
requirement under the securities laws or regulations of any state that such
shares be registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of such
shares in such state; and
(e) the Trust's refusal or failure to comply with the terms
of this Agreement, or any Claim which arises out of the Trust's negligence or
misconduct or the breach of any representation or warranty of the Trust made
herein.
9.2 ING Fund Services shall indemnify and hold the Trust
harmless from and against any and all claims, costs, expenses (including
reasonable attorneys' fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against the Trust or for which the
Trust may be held to be liable in connection with this Agreement (a "Claim"),
provided that such Claim resulted from a negligent act or omission to act, bad
faith, willful misfeasance or reckless disregard by ING Fund Services in the
performance of its duties hereunder.
9.3 In any case in which one party (the "Indemnifying Party")
may be asked to indemnify or hold the other party (the "Indemnified Party")
harmless, the Indemnified Party will notify the Indemnifying Party promptly
after identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnified Party although the
failure to do so shall not prevent recovery by the Indemnified
8
8
Party and shall keep the Indemnifying Party advised with respect to all
developments concerning such situation. The Indemnifying Party shall have the
option to defend the Indemnified Party against any Claim which may be the
subject of this indemnification, and, in the event that the Indemnifying Party
so elects, such defense shall be conducted by counsel chosen by the Indemnifying
Party and satisfactory to the Indemnified Party, and thereupon the Indemnifying
Party shall take over complete defense of the Claim and the Indemnified Party
shall sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party will not confess any Claim or make any compromise in any case
in which the Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Article 9 shall survive the termination of this
Agreement.
9.4 Any claim for indemnification under this Agreement must be
made prior to the earlier of:
(a) one year after the indemnifying party becomes aware of
the event for which indemnification is claimed; or
(b) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
9.5 Except for remedies that cannot be waived as a matter of
law (and injunctive or provisional relief), the provisions of this Article 9
shall be the Indemnified Party's sole and exclusive remedy for claims or other
actions or proceedings to which the Indemnifying Party's indemnification
obligations pursuant to this Article 9 may apply.
Article 10. Standard of Care
10.1 ING Fund Services shall at all times act in good faith
and agrees to use its best efforts within commercially reasonable limits to
ensure the accuracy of all services performed under this Agreement, but assumes
no responsibility for loss or damage to the Trust unless said errors are caused
by ING Fund Services' own negligence, bad faith or wilful misconduct or that of
its employees.
10.2 Each party shall have the duty to mitigate damages for
which the other party may become responsible.
Article 11. Additional Funds. In the event that the Trust establishes
one or more Funds in addition to those identified in Schedule A, with respect to
which the Trust desires to have ING Fund Services render services as transfer
agent under the terms hereof, the Fund shall so notify ING Fund Services in
writing, and if ING Fund Services agrees in writing to provide such services,
Schedule A shall be amended to include such additional Portfolios.
Article 12. Confidentiality
9
9
12.2 The parties agree that the Proprietary Information
(defined below) and the contents of this Agreement (collectively "Confidential
Information") are confidential information of the parties and their respective
licensors. The Trust and ING Fund Services shall exercise at least the same
degree of care, but not less than reasonable care, to safeguard the
confidentiality of the Confidential Information of the other as it would
exercise to protect its own confidential information of a similar nature. The
Trust and ING Fund Services shall not duplicate, sell or disclose to others the
Confidential Information of the other, in whole or in part, without the prior
written permission of the other party. The Trust and ING Fund Services may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Trust and ING Fund Services may also disclose the
Confidential Information to independent contractors, auditors, and professional
advisors, provided they first agree in writing to be bound by the
confidentiality obligations substantially similar to this Section 12.1.
Notwithstanding the previous sentence, in no event shall either the Trust or ING
Fund Services disclose the Confidential Information to any competitor of the
other without specific, prior written consent.
12.3 Proprietary Information means:
(a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance, operations,
customer relationships, customer profiles, sales estimates, business plans, and
internal performance results relating to the past, present or future business
activities of the Trust or ING Fund Services, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of them;
(b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Trust or ING Fund
Services a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, show-how and trade
secrets, whether or not patentable or copyrightable.
12.4 Confidential Information includes, without limitation,
all documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either party
which now exist or come into the control or possession of the other.
12.5 The obligations of confidentiality and restriction on use
herein shall not apply to any Confidential Information that a party proves:
10
10
(a) Was in the public domain prior to the date of this
Agreement or subsequently came into the public domain through no fault of such
party; or
(b) Was lawfully received by the party from a third party
free of any obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to
receipt thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or
administrative proceeding after all reasonable legal remedies for maintaining
such information in confidence have been exhausted including, but not limited
to, giving the other party as much advance notice of the possibility of such
disclosure as practical so the other party may attempt to stop such disclosure
or obtain a protective order concerning such disclosure; or
(e) Is subsequently and independently developed by
employees, consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
Article 13. Term and Termination. This Agreement shall become effective
as it pertains to a Fund at the close of business on the date opposite the
Fund's name on Schedule A and shall remain in force and effect for two years and
thereafter from year to year, unless the Trust or ING Fund Services provides
written notice of its intent not to renew. Such notice must be received not less
than ninety (90) days and not more than one hundred eighty (180) days prior to
the expiration of the then current term. In the event a termination notice is
given by the Trust, all expenses associated with movement of records and
materials and conversion thereof to a successor transfer agent will be borne by
the Trust.
Article 14. Limit of Liability. The terms "The ING Funds Trust" and
"Trustees" (of the Trust) refer, respectively to the trust created and the
Trustees, as trustees but not individually or personally, acting from time to
time under the Trust's organizational documentation, to which reference is
hereby made. The obligations of "The ING Funds Trust" entered into in the name
or on behalf thereof by any of the Trustees, representatives or agents are made
not individually, but in such capacities and are not binding upon any of the
Trustees, shareholders or representatives of the Trust personally, but bind only
the assets of the Funds, and all persons dealing with the Funds or other series
of the Trust must look solely to the assets of the Funds for the enforcement of
any claims against the Trust.
Article 15. Non-Exclusivity. The services of ING Fund Services to the
Trust are not to be deemed to be exclusive, and ING Fund Services shall be free
to render such services to others (including other investment companies) and to
engage in other activities. It is understood and agreed that officers or members
of ING Fund Services may serve as officers or trustees of the Trust, and that
officers or trustees of the Trust may serve as officers or members of ING Fund
Services to the extent permitted by law; and that the officers and members of
ING Fund Services are not prohibited from engaging in any other business
11
11
activity or from rendering services to any other person, or from serving as
partners, officers or partners of any other firm or corporation, including other
investment companies.
Article 16. Assignment and Subcontracting. This Agreement, its benefits
and obligations shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. This Agreement may
not be assigned or otherwise transferred by either party hereto, without the
prior written consent of the other party. ING Fund Services may, in its sole
discretion, engage subcontractors to perform any of the obligations contained in
this Agreement to be performed by ING Fund Services.
Article 17. Force Majeure. No party shall be liable for any default or
delay in the performance of its obligations under this Agreement if and to the
extent such default or delay is caused, directly or indirectly, by (i) fire,
flood, elements of nature or other acts of God; (ii) any outbreak or escalation
of hostilities, war, riots or civil disorders in any country; (iii) any act or
omission of the other party or any government authority; (iv) any labor disputes
(whether or not the employees' demands are reasonable or within the party's
power to satisfy); or (v) nonperformance by a third party or any similar cause
beyond the reasonable control of such party, including, without limitation,
failures or fluctuations in telecommunications or other equipment. In any such
event, the non-performing party shall be excused from any further performance
and observance of the obligations so affected only for as long as such
circumstances prevail and such party continues to use commercially reasonable
efforts to recommence performance or observance as soon as practicable.
Article 18. Amendment of this Agreement. No provision of this Agreement
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
Article 19. Notices. Any notices under this Agreement shall be in
writing, addressed and delivered or mailed postage paid to the other party at
such address as such other party may designate for the receipt of such notice.
Until further notice to the other party, it is agreed that the address of the
Trust and that of ING Fund Services shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
Article 20. Relationship of Parties. The parties agree that they are
independent contractors and are not partners or co-venturers and nothing
contained herein shall be interpreted or construed otherwise.
Article 21. Questions of Interpretation. Any question of interpretation
of any term or provision of this Agreement having a counterpart in or otherwise
derived from a term or provision of the Investment Company Act shall be resolved
by reference to such term or provision of the Investment Company Act and to
interpretations thereof, if any, by the United States Courts or in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the Commission issued pursuant to said Act. In addition, where the effect of
a requirement of the Investment Company Act reflected in any provision of this
12
Agreement is released by rules, regulation or order of the Commission, such
provision shall be deemed to incorporate the effect of such rule, regulation or
order.
Article 22. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original and both of which,
collectively, shall constitute one agreement.
Article 23. Miscellaneous. The captions in this Agreement are included
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their respective officers on the day and year first
above written.
ING VARIABLE INSURANCE TRUST ING FUND SERVICES CO. LLC
on behalf each of its series listed
on Schedule A
By: ___________________________ By: ___________________________
Title: ___________________________ Title: ___________________________
Attest By:__________________________ Attest By:_________________________
Title: ___________________________ Title: __________________________
13
SCHEDULE A
LIST OF PORTFOLIOS
ING Large Cap Growth Fund
ING Growth & Income Fund
ING International Equity Fund
ING Global Brand Names Fund
ING Income Allocation Fund
ING Balanced Allocation Fund
ING Growth Allocation Fund
ING Aggressive Growth Active Fund
14
SCHEDULE B
DUTIES OF ING FUND SERVICES
I. TRANSFER AGENCY SERVICES.
Perform transfer agency and dividend disbursing services as may be
required, including, but not limited to:
- Receive for acceptance, order for the purchase of Shares, and
promptly deliver payment and appropriate documentation thereof
to the custodian of the Fund
- Pursuant to purchase orders, issue the appropriate number of
Shares and hold such Shares in the appropriate shareholder
account
- Receive for acceptance redemption requests and redemption
directions and deliver the appropriate documentation thereof
to the custodian
- At the appropriate time as and when it receives monies paid to
it by the custodian with respect to any redemption, pay over
or cause to be paid over in the appropriate manner such monies
as instructed by the Fund
- Effect transfers of Shares by the registered owners therof
upon receipt of appropriate instructions
- Prepare and transmit payments for dividends and distributions
declared by the Fund on behalf of the Shares
- Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing
- Record the issuance of Shares of the Fund and maintain
pursuant to SEC Rule 17Ad-10(e) a record of the total number
of Shares which are authorized, based upon data provided to it
by the Fund, and issued and outstanding.
II. FUND ACCOUNTING
Perform fund accounting and bookkeeping services (including the
maintenance of such accounts, books and records of each Fund as may be
required by Section 31(a) of the Investment Company Act of 1940, as
amended), including, but not limited to:
- Daily, weekly, and monthly reporting
- Portfolio and general ledger accounting
15
- Daily valuation of all portfolio securities
- Daily valuation and NAV calculation
- Comparison of NAV to market movement
- Review research of price tolerance/fluctuation report to
market movements and events
- Research of items appearing on the price exception report
- Weekly cost monitoring along with ▇▇▇▇-to-market valuations in
accordance with Rule 2a-7
- Security trade processing
- Daily cash and position reconciliation with the custodian bank
- Daily updating of price and distribution rate information to
the transfer agent/insurance agent
- Daily support and report delivery to portfolio management
- Daily calculation of portfolio adviser fees and waivers
- Daily calculation of distribution rates
- Daily investable cash call
- Monitor and research aged receivable
- Collect aged income items and perform reclaims
- Update NASDAQ reporting
- Daily maintenance of each portfolio's general ledger including
expense accruals
- Daily NAV per share notification to other vendors as required
- Calculation of 30 day SEC yields and total returns
- Preparation of month-end reconciliation package
- Monthly reconciliation of portfolio expense records
16
- Application of monthly pay down gain/loss
- Preparation of all annual and semi-annual audit work papers
III. ACCOUNT SERVICING
Perform account servicing services as may be required, including, but
not limited to:
- Maintaining shareholder accounts which shall include name,
address, taxpayer identification number, and number of shares
- Preparation of shareholder statements
- Preparation of confirmations
- Preparation of shareholder lists
- Mailing shareholder communication, including, but not limited
to, shareholder statements, confirmations, prospectuses,
statements of additional information, annual and semi-annual
reports and proxy statements
- Tabulating proxies
- Withholding taxes on U.S. resident and non-resident accounts
where applicable
- Preparation and filing of U.S. Treasury Department Forms 1099
and other appropriate forms required by applicable statutes,
rules and regulations
- Providing other services directly to accounts as may be
required.
17
SCHEDULE C
FEE SCHEDULE
Each Fund may pay ING Fund Services on an annual basis the following amounts:
- $40,000 for fund accounting services plus out-of-pocket expenses
- $17 per account for transfer agency services plus out-of-pocket
expenses. For these purposes an account shall include each plan
participant who invests in a Fund through a benefit plan.
- 0.25% of average daily net assets for account servicing services