EXHIBIT e(ii)
SUBSTITUTION AGREEMENT
ING XX XXXX PORTFOLIO
This Substitution Agreement is made as of this 8th day of October, 2002 by and
between ING XX Xxxx Portfolio (the "Fund") on behalf of its Series as listed on
Schedule A attached hereto, and ING Funds Distributor, LLC (the "Distributor").
WHEREAS, the Fund is registered with the Securities and Exchange Commission as a
diversified open-end investment company under the Investment Company Act of
1940, as amended (the "Act"); and
WHEREAS, ING Funds Distributor, Inc., a direct, wholly-owned subsidiary of ING
Funds Services, LLC, has been serving as the principal distributor to the Fund
pursuant to a written Distribution Agreement (the "Agreement") between the Fund
and ING Funds Distributor, Inc. dated January 1, 2002, as such Agreement may be
amended from time to time; and
WHEREAS, on October 9, 2002, ING Funds Distributor, Inc. merged with and into
ING MC, LLC, a limited liability company duly organized in the State of
Delaware, whose sole member is ING Funds Services, LLC, with ING MC, LLC as the
surviving entity under the name ING Funds Distributor, LLC; and
WHEREAS, by virtue of the merger of ING Funds Distributor, Inc. with and into
ING MC, LLC, the Distributor has succeeded to all of the rights, duties,
responsibilities and liabilities of ING Funds Distributor, Inc., and wishes to
confirm by this Substitution Agreement that it has assumed all duties and
obligations of ING Funds Distributor, Inc. contained in the Agreement; and
WHEREAS, under these circumstances, the Fund wishes to ratify and approve the
substitution of the Distributor as a party to the Agreement in place of ING
Funds Distributor, Inc.; and
WHEREAS, pursuant to the terms of the Agreement, ING Funds Distributor, Inc. has
sold its rights to certain earned but unpaid Distribution Fees and Contingent
Deferred Sales Charges ("CDSC") to third parties and it is expected that ING
Funds Distributor, LLC will continue to sell its rights to earned but unpaid
Distribution Fees and CDSC to third parties (all such third parties, "Permitted
Assignees").
NOW, THEREFORE, it is agreed as follows:
1. Substitution of Party. Effective as of the date first written above,
the Distributor is substituted into the Agreement in place of ING Funds
Distributor, Inc. for all purposes.
2. Performance of Duties. The Distributor hereby acknowledges and agrees
that, by virtue of the merger of ING Funds Distributor, Inc. with and into the
Distributor, with the Distributor as the surviving entity, it has assumed and
will perform all of ING Funds Distributor, Inc.'s duties
and obligations under the Agreement and will be subject to all of the terms and
conditions of the Agreement.
3. Consents. The Fund hereby ratifies and approves the assumption by the
Distributor of the interests, rights and responsibilities of ING Funds
Distributor, Inc. under the Agreement and agrees, subject to the terms and
conditions of said Agreement, (a) to look solely to the Distributor for the
performance of distribution duties and obligations under such Agreement after
the effective date written above, and (b) to continue to perform its obligations
thereunder as if no such merger had occurred and as if ING Funds Distributor,
Inc. and the Distributor were one and the same entity.
4. Representations of Distributor. The Distributor represents and warrants
that the merger of ING Funds Distributor, Inc. with and into the Distributor
will not result in any change in the management, operations, services, personnel
or other resources of ING Funds Distributor, Inc. available to the Distributor
to meet its obligations to the Fund under the Agreement.
5. Representations of Fund. The Fund represents and warrants that the
independent trustees have approved this Substitution Agreement and the
continuation after the merger of the Agreement in accordance with its terms and
this Substitution Agreement as required by Rule 12b-1 adopted under the Act.
6. Benefit. This Substitution Agreement is intended for the benefit of the
parties hereto, ING Funds Distributor, Inc. and the Permitted Assignees.
IN WITNESS WHEREOF, the parties hereto have caused this Substitution
Agreement to be executed by their duly authorized officers as of the date and
year first written above.
ING XX XXXX PORTFOLIO
By: /s/ Xxxxxx X. Naka
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Name: Xxxxxx X. Naka
Title: Senior Vice President
ING Funds Distributor, LLC
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and Chief Financial Officer
SCHEDULE A
ING XX Xxxx Portfolio
