Exhibit 99.B(d)(2)(cc)
FORM OF SUB-ADVISORY AGREEMENT
ING INVESTORS TRUST
AGREEMENT made this 3rd day of January 2006 between ING Investments, LLC,
an Arizona limited liability company (the "Manager"), and ING Clarion Real
Estate Securities L.P., a Delaware Limited Partnership (the "Sub-Adviser").
WHEREAS, ING Investors Trust (the "Trust") is registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), as an open-end,
management investment company; and
WHEREAS, the Trust is authorized to issue separate series, each series
having its own investment objective or objectives, policies, and limitations;
and
WHEREAS, the Trust may offer shares of additional series in the future; and
WHEREAS, pursuant to a Management Agreement, dated February 25, 2004, and
subsequently amended (the "Management Agreement"), a copy of which has been
provided to the Sub-Adviser, the Trust has retained the Manager to render
advisory and management services with respect to certain of the Trust's series;
and
WHEREAS, pursuant to authority granted to the Manager in the Management
Agreement, the Manager wishes to retain the Sub-Adviser to furnish investment
advisory services to one or more of the series of the Trust, and the Sub-Adviser
is willing to furnish such services to the Trust and the Manager.
NOW, THEREFORE, in consideration of the premises and the promises and
mutual covenants herein contained, it is agreed between the Manager and the
Sub-Adviser as follows:
1. APPOINTMENT. The Manager hereby appoints the Sub-Adviser to act as the
investment adviser and manager to the series of the Trust set forth on SCHEDULE
A hereto (the "Series") for the periods and on the terms set forth in this
Agreement. The Sub-Adviser accepts such appointment and agrees to furnish the
services herein set forth for the compensation herein provided.
In the event the Trust designates one or more series (other than the
Series) with respect to which the Manager wishes to retain the Sub-Adviser to
render investment advisory services hereunder, it shall notify the Sub-Adviser
in writing. If the Sub-Adviser is willing to render such services, it shall
notify the Manager in writing, whereupon such series shall become a Series
hereunder, and be subject to this Agreement.
2. SUB-ADVISER DUTIES. Subject to the supervision of the Trust's Board of
Trustees and the Manager, the Sub-Adviser will provide a continuous investment
program for each Series' portfolio and determine in its discretion the
composition of the assets of each Series' portfolio,
including determination of the purchase, retention, or sale of the securities,
cash, and other investments contained in the portfolio. The Sub-Adviser will
provide investment research and conduct a continuous program of evaluation,
investment, sales, and reinvestment of each Series' assets by determining the
securities and other investments that shall be purchased, entered into, sold,
closed, or exchanged for the Series, when these transactions should be executed,
and what portion of the assets of the Series should be held in the various
securities and other investments in which it may invest. To the extent permitted
by the investment policies of each Series, the Sub-Adviser shall make decisions
for the Series as to foreign currency matters and make determinations as to and
execute and perform foreign currency exchange contracts on behalf of the Series.
The Sub-Adviser will provide the services under this Agreement in accordance
with each Series' investment objective or objectives, policies, and restrictions
as stated in the Trust's Registration Statement filed with the Securities and
Exchange Commission (the "SEC"), as amended, copies of which shall be sent to
the Sub-Adviser by the Manager prior to the commencement of this Agreement and
promptly following any such amendment. The Sub-Adviser further agrees as
follows:
(a) The Sub-Adviser will conform with the 1940 Act and all rules
and regulations thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Trust's Board of
Trustees of which the Sub-Adviser has been sent a copy, and the provisions
of the Registration Statement of the Trust filed under the Securities Act
of 1933 (the "1933 Act") and the 1940 Act, as supplemented or amended, of
which the Sub-Adviser has received a copy, and with the Manager's portfolio
manager operating policies and procedures as in effect on the date hereof,
as such policies and procedures may be revised or amended by the Manager
and agreed to by the Sub-Adviser. In carrying out its duties under the
Sub-Advisory Agreement, the Sub-Adviser will comply with the following
policies and procedures:
(i) The Sub-Adviser will (1) manage each Series so that it
meets the income and asset diversification requirements of Section 851
of the Internal Revenue Code of 1986, as amended (the "Code"), and (2)
manage each Series so that no action or omission on the part of the
Sub-Adviser shall cause a Series to fail to comply with the
diversification requirements of Section 817(h) of the Code, and the
regulations issued thereunder.
(ii) The Sub-Adviser will have no duty to vote any proxy
solicited by or with respect to the issuers of securities in which
assets of the Series are invested unless the Manager gives the
Sub-Adviser written instructions to the contrary. The Sub-Adviser will
immediately forward any proxy solicited by or with respect to the
issuers of securities in which assets of the Series are invested to
the Manager or to any agent of the Manager designated by the Manager
in writing.
The Sub-Adviser will make appropriate personnel available for
consultation for the purpose of reviewing with representatives of the
Manager and/or the Board any proxy solicited by or with respect to the
issuers of securities in which assets of the Series are invested. Upon
request, the Sub-Adviser will
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submit a written voting recommendation to the Manager for such
proxies. In making such recommendations, the Sub-Adviser shall use its
good faith judgment to act in the best interests of the Series. The
Sub-Adviser shall disclose to the best of its knowledge any conflict
of interest with the issuers of securities that are the subject of
such recommendation including whether such issuers are clients or are
being solicited as clients of the Sub-Adviser or of its affiliates.
(iii) In connection with the purchase and sale of securities
for each Series, the Sub-Adviser will arrange for the transmission to
the custodian and portfolio accounting agent for the Series on a daily
basis, such confirmation, trade tickets, and other documents and
information, including, but not limited to, Cusip, Sedol, or other
numbers that identify securities to be purchased or sold on behalf of
the Series, as may be reasonably necessary to enable the custodian and
portfolio accounting agent to perform its administrative and record
keeping responsibilities with respect to the Series. With respect to
portfolio securities to be settled through the Depository Trust
Company, the Sub-Adviser will arrange for the prompt transmission of
the confirmation of such trades to the Trust's custodian and portfolio
accounting agent.
(iv) The Sub-Adviser will assist the custodian and portfolio
accounting agent for the Trust in determining or confirming,
consistent with the procedures and policies stated in the Registration
Statement for the Trust or adopted by the Board of Trustees, the value
of any portfolio securities or other assets of the Series for which
the custodian and portfolio accounting agent seeks assistance from or
identifies for review by the Sub-Adviser. The parties acknowledge that
the Sub-Adviser is not a custodian of the Series' assets and will not
take possession or custody of such assets.
(v) The Sub-Adviser will provide the Manager, no later than
the 10th business day following the end of each Series' semi-annual
period and fiscal year, a letter to shareholders (to be subject to
review and editing by the Manager) containing a discussion of those
factors referred to in Item 5(a) of 1940 Act Form N-1A in respect of
both the prior quarter and the fiscal year to date.
(vi) The Sub-Adviser will complete and deliver to the
Manager a written compliance checklist in a form provided by the
Manager for each month by the 10th business day of the following
month.
(b) The Sub-Adviser will complete and deliver to the Manager by
the 10th business day of each month a written report on each Series of the
Trust that contains the following information as of the immediately
previous month's end.
(i) A performance comparison to the Series benchmark listed
in the prospectus as well as a comparison to other mutual funds as
listed in the rankings prepared by Lipper Analytical Services, Inc.,
Morningstar, Inc., or similar
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independent services that monitor the performance of mutual funds or
with other appropriate indexes of investment securities;
(ii) Composition of the assets of each Series' portfolio and
the impact of key portfolio holdings and sector concentrations on the
Series; and
(iii) Confirmation of each Series' current investment
objective and Sub-Adviser's projected plan to realize the Series'
investment objectives.
(c) The Sub-Adviser will contact Morningstar to clarify any style
box conflicts with each Series' style and the anticipated timeframe in
which Morningstar will remedy such conflicts, if any.
(d) The Sub-Adviser will make available to the Trust and the
Manager, promptly upon request, any of the Series' investment records and
ledgers maintained by the Sub-Adviser (which shall not include the records
and ledgers maintained by the custodian or portfolio accounting agent for
the Trust) as are necessary to assist the Trust and the Manager to comply
with requirements of the 1940 Act and the Investment Advisers Act of 1940
(the "Advisers Act"), as well as other applicable laws. The Sub-Adviser
will furnish to regulatory authorities having the requisite authority any
information or reports in connection with such services in respect to the
Series which may be requested in order to ascertain whether the operations
of the Trust are being conducted in a manner consistent with applicable
laws and regulations.
(e) The Sub-Adviser will provide reports to the Trust's Board of
Trustees for consideration at meetings of the Board of Trustees on the
investment program for each Series and the issuers and securities
represented in each Series' portfolio, and will furnish the Trust's Board
of Trustees with respect to each Series such periodic and special reports
as the Trustees and the Manager may reasonably request.
3. BROKER-DEALER SELECTION. The Sub-Adviser is authorized to make
decisions to buy and sell securities and other investments for each Series'
portfolio, broker-dealer selection, and negotiation of brokerage commission
rates in effecting a security transaction. The Sub-Adviser's primary
consideration in effecting a security transaction will be to obtain the best
execution for the Series, taking into account the factors specified in the
prospectus and/or statement of additional information for the Trust, and
determined in consultation with the Manager, which include price (including the
applicable brokerage commission or dollar spread), the size of the order, the
nature of the market for the security, the timing of the transaction, the
reputation, the experience and financial stability of the broker-dealer
involved, the quality of the service, the difficulty of execution, and the
execution capabilities and operational facilities of the firm involved, and the
firm's risk in positioning a block of securities. Accordingly, the price to a
Series in any transaction may be less favorable than that available from another
broker-dealer if the difference is reasonably justified, in the judgment of the
Sub-Adviser in the exercise of its fiduciary obligations to the Trust, by other
aspects of the portfolio execution services offered. Subject to such policies as
the Trust's Board of Trustees or Manager may determine and consistent with
Section 28(e) of the Securities Exchange Act of 1934, the Sub-Adviser shall not
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be deemed to have acted unlawfully or to have breached any duty created by this
Agreement or otherwise solely by reason of its having caused a Series to pay a
broker-dealer for effecting a portfolio investment transaction in excess of the
amount of commission another broker-dealer would have charged for effecting that
transaction, if the Sub-Adviser determines in good faith that such amount of
commission was reasonable in relation to the value of the brokerage and research
services provided by such broker-dealer, viewed in terms of either that
particular transaction or the Sub-Adviser's or the Manager's overall
responsibilities with respect to the Series and to their respective other
clients as to which they exercise investment discretion. The Sub-Adviser will
consult with the Manager to the end that portfolio transactions on behalf of a
Series are directed to broker-dealers on the basis of criteria reasonably
considered appropriate by the Manager. To the extent consistent with these
standards, the Sub-Adviser is further authorized to allocate the orders placed
by it on behalf of a Series to the Sub-Adviser if it is registered as a
broker-dealer with the SEC, to an affiliated broker-dealer, or to such brokers
and dealers who also provide research or statistical material, or other services
to the Series, the Sub-Adviser, or an affiliate of the Sub-Adviser. Such
allocation shall be in such amounts and proportions as the Sub-Adviser shall
determine consistent with the above standards, and the Sub-Adviser will report
on said allocation regularly to the Trust's Board of Trustees indicating the
broker-dealers to which such allocations have been made and the basis therefor.
4. DISCLOSURE ABOUT SUB-ADVISER. The Sub-Adviser has reviewed the most
recent Post-Effective Amendment to the Registration Statement for the Trust
filed with the SEC that contains disclosure about the Sub-Adviser, and
represents and warrants that, with respect to the disclosure about the
Sub-Adviser or information relating, directly or indirectly, to the Sub-Adviser,
such Registration Statement contains, as of the date hereof, no untrue statement
of any material fact and does not omit any statement of a material fact which
was required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading. The Sub-Adviser further represents and warrants that it is a duly
registered investment adviser under the Advisers Act and will maintain such
registration so long as this Agreement remains in effect. The Sub-Adviser will
provide the Manager with a copy of the Sub-Adviser's Form ADV, Part II at the
time the Form ADV is filed with the SEC.
5. EXPENSES. During the term of this Agreement, the Sub-Adviser will pay
all expenses incurred by it and its staff and for their activities in connection
with its portfolio management duties under this Agreement. The Manager or the
Trust shall be responsible for all the expenses of the Trust's operations. In
addition, if the Trust is required, under applicable law, to supplement the
Registration Statement because of a change requested by the Sub-Adviser, the
Sub-Adviser will reimburse the Trust and/or the Manager for the cost of
preparing, printing and distributing such supplement, unless the Sub-Adviser is
requesting the change in order to comply with an applicable law, rule or
regulation.
6. COMPENSATION. For the services provided to each Series, the Manager
will pay the Sub-Adviser an annual fee equal to the amount specified for such
Series in SCHEDULE A hereto, payable monthly in arrears. The fee will be
appropriately prorated to reflect any portion of a calendar month that this
Agreement is not in effect among the parties. In accordance with the provisions
of the Management Agreement, the Manager is solely responsible for the payment
of fees to the Sub-Adviser, and the Sub-Adviser agrees to seek payment of its
fees solely from the
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Manager; provided, however, that if the Trust fails to pay the Manager all or a
portion of the management fee under said Management Agreement when due, and the
amount that was paid is insufficient to cover the Sub-Adviser's fee under this
Agreement for the period in question, then the Sub-Adviser may enforce against
the Trust any rights it may have as a third-party beneficiary under the
Management Agreement and the Manager will take all steps appropriate under the
circumstances to collect the amount due from the Trust.
7. MARKETING MATERIALS.
(a) During the term of this Agreement, the Sub-Adviser agrees to
furnish the Manager at its principal office for prior review and approval
by the Manager all written and/or printed materials, including but not
limited to, PowerPoint(R) or slide presentations, news releases,
advertisements, brochures, fact sheets and other promotional, informational
or marketing materials (the "Marketing Materials") for internal use or
public dissemination, that are produced or are for use or reference by the
Sub-Adviser, its affiliates or other designees, broker-dealers or the
public in connection with the Series, and Sub-Adviser shall not use any
such materials if the Manager reasonably objects in writing within five
business days (or such other period as may be mutually agreed) after
receipt thereof. Marketing Materials may be furnished to the Manager by
first class or overnight mail, facsimile transmission equipment, electronic
delivery or hand delivery.
(b) During the term of this Agreement, the Manager agrees to
furnish the Sub-Adviser at its principal office all prospectuses, proxy
statements, reports to shareholders, or Marketing Materials prepared for
distribution to shareholders of each Series, or the public that refer to
the Sub-Adviser in any way, prior to the use thereof, and the Manager shall
not use any such materials if the Sub-Adviser reasonably objects in writing
within five business days (or such other period as may be mutually agreed)
after receipt thereof. The Sub-Adviser's right to object to such materials
is limited to the portions of such materials that expressly relate to the
Sub-Adviser, its services and its clients. The Manager agrees to use its
reasonable best efforts to ensure that materials prepared by its employees
or agents or its affiliates that refer to the Sub-Adviser or its clients in
any way are consistent with those materials previously approved by the
Sub-Adviser as referenced in the first sentence of this paragraph.
Marketing Materials may be furnished to the Sub-Adviser by first class or
overnight mail, facsimile transmission equipment, electronic delivery or
hand delivery.
8. COMPLIANCE.
(a) The Sub-Adviser agrees to use reasonable compliance techniques
as the Manager or the Board of Trustees may adopt, including any written
compliance procedures.
(b) The Sub-Adviser agrees that it shall promptly notify the
Manager and the Trust (i) in the event that the SEC has censured the
Sub-Adviser; placed limitations upon its activities, functions or
operations; suspended or revoked its registration as an investment adviser;
or has commenced proceedings or an investigation that may result in
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any of these actions, or (ii) upon having a reasonable basis for believing
that the Series has ceased to qualify or might not qualify as a regulated
investment company under Subchapter M of the Internal Revenue Code. The
Sub-Adviser further agrees to notify the Manager and the Trust promptly of
any material fact known to the Sub-Adviser respecting or relating to the
Sub-Adviser that is not contained in the Registration Statement or
prospectus for the Trust (which describes the Series), or any amendment or
supplement thereto, or if any statement contained therein that becomes
untrue in any material respect.
(c) The Manager agrees that it shall promptly notify the
Sub-Adviser (i) in the event that the SEC has censured the Manager or the
Trust; placed limitations upon either of their activities, functions, or
operations; suspended or revoked the Manager's registration as an
investment adviser; or has commenced proceedings or an investigation that
may result in any of these actions, or (ii) upon having a reasonable basis
for believing that the Series has ceased to qualify or might not qualify as
a regulated investment company under Subchapter M of the Internal Revenue
Code.
9. BOOKS AND RECORDS. The Sub-Adviser hereby agrees that all records
which it maintains for the Series are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the Trust's
or the Manager's request in compliance with the requirements of Rule 31a-3 under
the 1940 Act, although the Sub-Adviser may, at its own expense, make and retain
a copy of such records. The Sub-Adviser further agrees to preserve for the
periods prescribed by Rule 31a-2 under the 1940 Act the records required to be
maintained by Rule 31a-l under the 1940 Act.
10. COOPERATION; CONFIDENTIALITY. Each party to this Agreement agrees to
cooperate with the other party and with all appropriate governmental authorities
having the requisite jurisdiction (including, but not limited to, the SEC) in
connection with any investigation or inquiry relating to this Agreement or the
Trust. Subject to the foregoing, the Sub-Adviser shall treat as confidential all
information pertaining to the Trust and actions of the Trust, the Manager and
the Sub-Adviser, and the Manager shall treat as confidential and use only in
connection with the Series all information furnished to the Trust or the Manager
by the Sub-Adviser, in connection with its duties under the Agreement except
that the aforesaid information need not be treated as confidential if required
to be disclosed under applicable law, if generally available to the public
through means other than by disclosure by the Sub-Adviser or the Manager, or if
available from a source other than the Manager, Sub-Adviser or the Trust.
11. NON-EXCLUSIVITY. The services of the Sub-Adviser to the Series and the
Trust are not to be deemed to be exclusive, and the Sub-Adviser shall be free to
render investment advisory or other services to others (including other
investment companies) and to engage in other activities.
12. PROHIBITED CONDUCT. The Sub-Adviser may not consult with any other
sub-adviser of the Trust concerning transactions in securities or other assets
for any investment portfolio of the Trust, including the Series, except that
such consultations are permitted between the current and successor sub-advisers
of the Series in order to effect an orderly transition of sub-advisory
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duties so long as such consultations are not concerning transactions prohibited
by Section 17(a) of the 1940 Act.
13. REPRESENTATIONS RESPECTING SUB-ADVISER. The Manager agrees that
neither the Manager, nor affiliated persons of the Manager, shall give any
information or make any representations or statements in connection with the
sale of shares of the Series concerning the Sub-Adviser or the Series other than
the information or representations contained in the Registration Statement,
prospectus, or statement of additional information for the Trust's shares, as
they may be amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional material
approved in advance by the Sub-Adviser, except with the prior permission of the
Sub-Adviser.
14. CONTROL. Notwithstanding any other provision of the Agreement, it is
understood and agreed that the Trust shall at all times retain the ultimate
responsibility for and control of all functions performed pursuant to this
Agreement and has reserved the right to reasonably direct any action hereunder
taken on its behalf by the Sub-Adviser.
15. LIABILITY. Except as may otherwise be required by the 1940 Act or the
rules thereunder or other applicable law, the Manager agrees that the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if any,
who, within the meaning of Section 15 of the 1933 Act controls the Sub-Adviser
(a) shall bear no responsibility and shall not be subject to any liability for
any act or omission respecting any series of the Trust that is not a Series
hereunder, and (b) shall not be liable for, or subject to any damages, expenses,
or losses in connection with, any act or omission connected with or arising out
of any services rendered under this Agreement, except by reason of willful
misfeasance, bad faith, or gross negligence in the performance of the
Sub-Adviser's duties, or by reason of reckless disregard of the Sub-Adviser's
obligations and duties under this Agreement.
16. INDEMNIFICATION.
(a) The Manager agrees to indemnify and hold harmless the
Sub-Adviser, any affiliated person of the Sub-Adviser, and each person, if
any, who, within the meaning of Section 15 of the 1933 Act controls
("controlling person") the Sub-Adviser (all of such persons being referred
to as "Sub-Adviser Indemnified Persons") against any and all losses,
claims, damages, liabilities, or litigation (including legal and other
expenses) to which a Sub-Adviser Indemnified Person may become subject
under the 1933 Act, the 1940 Act, the Advisers Act, under any other
statute, at common law or otherwise, arising out of the Manager's
responsibilities to the Trust which (1) may be based upon the Manager's
negligence, willful misfeasance, or bad faith in the performance of its
duties (which could include a negligent action or a negligent omission to
act), or by reason of the Manager's reckless disregard of its obligations
and duties under this Agreement, or (2) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or prospectus covering shares of the Trust or any
Series, or any amendment thereof or any supplement thereto, or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, unless
such statement or omission was made in
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reliance upon information furnished to the Manager or the Trust or to any
affiliated person of the Manager by a Sub-Adviser Indemnified Person;
provided however, that in no case shall the indemnity in favor of the
Sub-Adviser Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
willful misfeasance, bad faith, or negligence in the performance of its
duties, or by reason of its reckless disregard of obligations and duties
under this Agreement.
(b) Notwithstanding Section 15 of this Agreement, the Sub-Adviser
agrees to indemnify and hold harmless the Manager, any affiliated person of
the Manager, and any controlling person of the Manager (all of such persons
being referred to as "Manager Indemnified Persons") against any and all
losses, claims, damages, liabilities, or litigation (including legal and
other expenses) to which a Manager Indemnified Person may become subject
under the 1933 Act, 1940 Act, the Advisers Act, under any other statute, at
common law or otherwise, arising out of the Sub-Adviser's responsibilities
as Sub-Adviser of the Series which (1) may be based upon the Sub-Adviser's
negligence, willful misfeasance, or bad faith in the performance of its
duties (which could include a negligent action or a negligent omission to
act), or by reason of the Sub-Adviser's reckless disregard of its
obligations and duties under this Agreement, or (2) may be based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or prospectus covering the shares of the
Trust or any Series, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact known or
which should have been known to the Sub-Adviser and was required to be
stated therein or necessary to make the statements therein not misleading,
if such a statement or omission was made in reliance upon information
furnished to the Manager, the Trust, or any affiliated person of the
Manager or Trust by the Sub-Adviser or any affiliated person of the
Sub-Adviser; provided, however, that in no case shall the indemnity in
favor of a Manager Indemnified Person be deemed to protect such person
against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, negligence in the performance
of its duties, or by reason of its reckless disregard of its obligations
and duties under this Agreement.
(c) The Manager shall not be liable under Paragraph (a) of this
Section 16 with respect to any claim made against a Sub-Adviser Indemnified
Person unless such Sub-Adviser Indemnified Person shall have notified the
Manager in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon such Sub-Adviser Indemnified Person (or after such
Sub-Adviser Indemnified Person shall have received notice of such service
on any designated agent), but failure to notify the Manager of any such
claim shall not relieve the Manager from any liability which it may have to
the Sub-Adviser Indemnified Person against whom such action is brought
except to the extent the Manager is prejudiced by the failure or delay in
giving such notice. In case any such action is brought against the
Sub-Adviser Indemnified Person, the Manager will be entitled to
participate, at its own expense, in the defense thereof or, after notice to
the Sub-Adviser Indemnified Person, to assume the defense thereof, with
counsel satisfactory to the Sub-Adviser Indemnified Person. If the Manager
assumes the defense of any such action and
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the selection of counsel by the Manager to represent the Manager and the
Sub-Adviser Indemnified Person would result in a conflict of interests and
therefore, would not, in the reasonable judgment of the Sub-Adviser
Indemnified Person, adequately represent the interests of the Sub-Adviser
Indemnified Person, the Manager will, at its own expense, assume the
defense with counsel to the Manager and, also at its own expense, with
separate counsel to the Sub-Adviser Indemnified Person, which counsel shall
be satisfactory to the Manager and to the Sub-Adviser Indemnified Person.
The Sub-Adviser Indemnified Person shall bear the fees and expenses of any
additional counsel retained by it, and the Manager shall not be liable to
the Sub-Adviser Indemnified Person under this Agreement for any legal or
other expenses subsequently incurred by the Sub-Adviser Indemnified Person
independently in connection with the defense thereof other than reasonable
costs of investigation. The Manager shall not have the right to compromise
on or settle the litigation without the prior written consent of the
Sub-Adviser Indemnified Person if the compromise or settlement results, or
may result, in a finding of wrongdoing on the part of the Sub-Adviser
Indemnified Person.
(d) The Sub-Adviser shall not be liable under Paragraph (b) of
this Section 16 with respect to any claim made against a Manager
Indemnified Person unless such Manager Indemnified Person shall have
notified the Sub-Adviser in writing within a reasonable time after the
summons or other first legal process giving information of the nature of
the claim shall have been served upon such Manager Indemnified Person (or
after such Manager Indemnified Person shall have received notice of such
service on any designated agent), but failure to notify the Sub-Adviser of
any such claim shall not relieve the Sub-Adviser from any liability which
it may have to the Manager Indemnified Person against whom such action is
brought except to the extent the Sub-Adviser is prejudiced by the failure
or delay in giving such notice. In case any such action is brought against
the Manager Indemnified Person, the Sub-Adviser will be entitled to
participate, at its own expense, in the defense thereof or, after notice to
the Manager Indemnified Person, to assume the defense thereof, with counsel
satisfactory to the Manager Indemnified Person. If the Sub-Adviser assumes
the defense of any such action and the selection of counsel by the
Sub-Adviser to represent both the Sub-Adviser and the Manager Indemnified
Person would result in a conflict of interests and therefore, would not, in
the reasonable judgment of the Manager Indemnified Person, adequately
represent the interests of the Manager Indemnified Person, the Sub-Adviser
will, at its own expense, assume the defense with counsel to the
Sub-Adviser and, also at its own expense, with separate counsel to the
Manager Indemnified Person, which counsel shall be satisfactory to the
Sub-Adviser and to the Manager Indemnified Person. The Manager Indemnified
Person shall bear the fees and expenses of any additional counsel retained
by it, and the Sub-Adviser shall not be liable to the Manager Indemnified
Person under this Agreement for any legal or other expenses subsequently
incurred by the Manager Indemnified Person independently in connection with
the defense thereof other than reasonable costs of investigation. The
Sub-Adviser shall not have the right to compromise on or settle the
litigation without the prior written consent of the Manager Indemnified
Person if the compromise or settlement results, or may result in a finding
of wrongdoing on the part of the Manager Indemnified Person.
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17. DURATION AND TERMINATION.
(a) This Agreement shall become effective on the date first
indicated above, subject to the condition that the Trust's Board of
Trustees, including a majority of those Trustees who are not interested
persons (as such term is defined in the 0000 Xxx) of the Manager or the
Sub-Adviser, and the shareholders of each Series, shall have approved this
Agreement. Unless terminated as provided herein, this Agreement shall
remain in full force and effect until NOVEMBER 30, 2007 and continue on an
annual basis thereafter with respect to each Series covered by this
Agreement; provided that such annual continuance is specifically approved
each year by (i) the Board of Trustees of the Trust, or by the vote of a
majority of the outstanding voting securities (as defined in the 0000 Xxx)
of each Series, and (ii) the vote of a majority of those Trustees who are
not parties to this Agreement or interested persons (as such term is
defined in the 0000 Xxx) of any such party to this Agreement cast in person
at a meeting called for the purpose of voting on such approval. However,
any approval of this Agreement by the holders of a majority of the
outstanding shares (as defined in the 0000 Xxx) of a Series shall be
effective to continue this Agreement with respect to such Series
notwithstanding (i) that this Agreement has not been approved by the
holders of a majority of the outstanding shares of any other Series or (ii)
that this agreement has not been approved by the vote of a majority of the
outstanding shares of the Trust, unless such approval shall be required by
any other applicable law or otherwise.
Notwithstanding the foregoing, this Agreement may be terminated with
respect to any Series covered by this Agreement: (i) by the Manager at any
time, upon sixty (60) days' written notice to the Sub-Adviser and the
Trust, (ii) at any time without payment of any penalty by the Trust, by the
Trust's Board of Trustees or a majority of the outstanding voting
securities of each Series, upon sixty (60) days' written notice to the
Manager and the Sub-Adviser, or (iii) by the Sub-Adviser upon three (3)
months' written notice unless the Trust or the Manager requests additional
time to find a replacement for the Sub-Adviser, in which case the
Sub-Adviser shall allow the additional time requested by the Trust or
Manager not to exceed three (3) additional months beyond the initial
three-month notice period; provided, however, that the Sub-Adviser may
terminate this Agreement at any time without penalty, effective upon
written notice to the Manager and the Trust, in the event either the
Sub-Adviser (acting in good faith) or the Manager ceases to be registered
as an investment adviser under the Advisers Act or otherwise becomes
legally incapable of providing investment management services pursuant to
its respective contract with the Trust, or in the event the Manager becomes
bankrupt or otherwise incapable of carrying out its obligations under this
Agreement, or in the event that the Sub-Adviser does not receive
compensation for its services from the Manager or the Trust as required by
the terms of this Agreement.
In the event of termination for any reason, all records of each Series
for which the Agreement is terminated shall promptly be returned to the
Manager or the Trust, free from any claim or retention of rights in such
record by the Sub-Adviser, although the Sub-Adviser may, at its own
expense, make and retain a copy of such records. This Agreement shall
automatically terminate in the event of its assignment (as such term is
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described in the 1940 Act). In the event this Agreement is terminated or is
not approved in the manner described above, the Sections or Paragraphs
numbered 9, 10, 13, 14, 15 and 16 of this Agreement shall remain in effect,
as well as any applicable provision of this Section numbered 17 and, to the
extent that only amounts are owed to the Sub-Adviser as compensation for
services rendered while the Agreement was in effect, Section 6.
(b) NOTICES. Any notice must be in writing and shall be
sufficiently given (1) when delivered in person, (2) when dispatched by
telegram or electronic facsimile transfer (confirmed in writing by postage
prepaid first class air mail simultaneously dispatched), (3) when sent by
internationally recognized overnight courier service (with receipt
confirmed by such overnight courier service), or (4) when sent by
registered or certified mail, to the other party at the address of such
party set forth below or at such other address as such party may from time
to time specify in writing to the other party.
If to the Trust:
ING Investors Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, Xx.
If to the Sub-Adviser:
ING Clarion Real Estate Securities L.P.
000 X. Xxxxxx-Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000 Attention: Legal Department
18. AMENDMENTS. 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, and no amendment of this Agreement shall be effective
until approved as required by applicable law.
19. MISCELLANEOUS.
(a) This Agreement shall be governed by the laws of the State of
Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act, the Advisers Act or rules or orders of the
SEC thereunder, and without regard for the conflicts of laws principle
thereof. The term "affiliate" or "affiliated person" as used in this
Agreement shall mean "affiliated person" as defined in Section 2(a)(3) of
the 0000 Xxx.
(b) The Manager and the Sub-Adviser acknowledge that the Trust
enjoys the rights of a third-party beneficiary under this Agreement, and
the Manager acknowledges that the Sub-Adviser enjoys the rights of a third
party beneficiary under the Management Agreement.
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(c) The captions of this Agreement are included for convenience
only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
(d) To the extent permitted under Section 17 of this Agreement,
this Agreement may only be assigned by any party with the prior written
consent of the other parties.
(e) 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, and to this extent, the
provisions of this Agreement shall be deemed to be severable.
(f) Nothing herein shall be construed as constituting the
Sub-Adviser as an agent or co-partner of the Manager, or constituting the
Manager as an agent or co-partner of the Sub-Adviser.
(g) This Agreement may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ING INVESTMENTS, LLC
By:
--------------
Xxxx Xxxxx
Senior Vice President
ING CLARION REAL ESTATE SECURITIES L.P.
By:
--------------------------
Name:
--------------------------
Title:
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