Second Amended and Restated Services Agreement, dated as of March 1, 2019, between VRIAC, the affiliated companies and certain other affiliated companies in exhibit B of the Agreement

This Second Amended and Restated Services Agreement (this "Agreement") is made as of this 4^st day of March, 2019, by and among Voya Retirement Insurance and Annuity Company (“VRIAC”), an insurance company organized and existing under the laws of the state of Connecticut, the affiliated insurance companies specified in Exhibit B hereto and certain other affiliated companies specified in Exhibit B hereto.

    

    WHEREAS, certain of the parties to this Agreement entered into a Services Agreement (the “Original Agreement”), made January 1, 2001, as amended effective January 1, 2002, December 31, 2007 and October 1, 2008, by and among ING Life Insurance and Annuity Company (now known as VRIAC) and the affiliated insurance companies specified in Exhibit B to the Original Agreement (or successors by merger to such affiliated insurance companies).

WHEREAS, the Original Agreement was amended and restated effective April 1, 2015 (the “2015 Agreement”).

WHEREAS, the parties hereto wish to enter into this amendment and restatement to the 2015 Agreement, effective March 4, 2019, in order to expand and update the parties to this Agreement, to clarify the allocation and mechanism for payment of amounts owing hereunder related to broker-dealer related activities, to include the provision of cybersecurity and related services and to make certain other revisions to the Agreement.

WHEREAS, the parties are affiliates under the common control of Voya Financial, Inc.; and

WHEREAS, each party possesses certain resources, including experienced personnel, facilities and equipment, which enables it to provide certain administrative, management, professional, advisory, consulting and other services to the others ("Services"); and

WHEREAS, each party desires from time to time to perform certain Services on behalf of, and receive certain Services from, the others, as described with particularity in Exhibit A attached hereto; and

WHEREAS, each party contemplates that such an arrangement will achieve operating economies, synergies and expense savings, and improve services for its benefit and that of its account owners, policyholders or contractholders, as applicable; and

WHEREAS, the parties wish to identify the Services to be provided, to provide a method for identifying the charges to be assessed and the compensation to be paid for the Services, and to assure that all charges for the Services are reasonable and in accordance with the applicable laws and regulations of the states in which each of them is domiciled;

NOW, THEREFORE, in consideration of these premises and of the mutual promises set forth herein, and intending to be legally bound hereby, the parties agree as follows:

1.    Services.

(a)    Subject to the terms, conditions, and limitations of this Agreement, the party providing a service hereunder ("Service Provider") will perform for the party requesting a service hereunder ("Company") such of the Services

described in Exhibit A, attached hereto and incorporated herein by this reference, as the Company may from time to time request.

(b)    The Service Provider shall employ all operating and management personnel necessary to provide the Services required by this Agreement. The Service Provider shall also maintain such facilities and equipment as it deems reasonably necessary in order to provide the Services required by the Agreement. Subject to the terms (including any limitations and restrictions) of any applicable software or hardware licensing agreement then in effect between the Service Provider and any licensor, the Service Provider shall, upon termination of this Agreement, grant to the Company a perpetual license, without payment of any fee, in any electronic data processing software developed or used by the Service Provider in connection with the Services provided to the Company, if such software is not commercially available and is necessary, in the Company's reasonable judgment, for the Company to perform the functions provided by the Service Provider hereunder after termination of this Agreement.

(c)    The parties agree that all documents, reports, records, books, files and other materials relative to the Services performed for the Company under this Agreement shall be the sole property of the Company. The Service Provider shall keep and maintain or cause to be kept and maintained full and complete documentation and records related to the Services provided including the accounting necessary to support charges for Services for no less than the period of time required by applicable law and regulation. The Service Provider shall maintain custody of said documentation and records and shall make them available to the Company and the appropriate insurance or other regulator of the Company upon request.

2.    Charges for Services.

(a)    It is the intention of the parties that the charges for the Services provided under this Agreement be determined in accordance with fair and reasonable standards and that no party realize a profit nor incur a loss as a result of the Services rendered pursuant to this Agreement. The parties intend that the provision of Services hereunder shall have no impact on the surplus of the Company. All funds and invested assets of the Company are the exclusive property of the Company held for the benefit of the Company, and are subject to the control of the Company. Expenses incurred by the Service Provider and payment received by/from the Service Provider shall be allocated to the Service Provider in conformity with customary insurance accounting practices, consistently applied and in compliance with the National Association of Insurance Commissioner’s Accounting Practices and Procedures Manual. No Company that is an insurance company and is party to this Agreement shall advance any funds to the Service Provider except to pay for services hereunder.

(b)    The Company agrees to reimburse the Service Provider for all direct costs incurred on behalf of the Company and for all indirect costs, which may be charged to the Company as follows:

(i)    "Direct Costs" include costs incurred by the Service Provider for Services provided directly to the Company, including but not limited to: (a) All costs incident to any employee or employees who are employed in rendering Services to the Company, such as salary, payroll taxes, and benefits and (b) the cost of other reasonable and necessary business expenses incurred by employees who are employed in rendering Services to the Company such as training, travel and lodging. Direct Costs shall be charged in accordance with reasonable functional cost studies and/or other information and methodologies used by the Service Provider for internal cost distribution including, where appropriate, an analysis of time spent by each employee providing Services to the Company and/or the percentage of administrative systems utilized. Data for this analysis will be collected through tracking of unit costs of Services, through time studies conducted periodically, or through other methods consistent with customary insurance accounting practices consistently applied. Annually, the bases for determining direct costs shall be modified and adjusted by mutual agreement of the Service Provider and the Company, where necessary or appropriate, to fairly and equitably reflect the actual cost incurred by the Service Provider on behalf of the Company.

(ii)    "Indirect Costs" include all other costs incurred by the Service Provider in rendering Services to the Company, including but not limited to the cost of rent or depreciation of office space, utilities, office equipment, and supplies utilized by employees who are employed in rendering Services to the Company. Indirect costs shall be charged to the Company based on an acceptable allocation methodology in conformity with insurance accounting practices.

(c)    The charges for Direct Costs and Indirect Costs referred to above shall be made by the Service Provider on a monthly or quarterly basis as appropriate for the particular Service and shall be paid not later than forty-five days following the date of the charge. Charges paid by any party to the Service Provider may be net of charges for Direct and Indirect Costs charged by such party as Service Provider to the other party.

(d)    In the event the Service Provider or the Company should discover upon review of its accounting by its internal auditors, independent auditor, any state insurance department, or other regulatory agency, that an amount charged for Services provided hereunder was erroneous, the party discovering the error will give prompt notice of such error to the affected party under this Agreement. Such notice shall contain a description of the accounting error, corrective action and supporting documentation. Any amounts owing, as a result of the correction shall be paid within sixty (60) days after notice has been given.

(e)    The Company shall have the right to inspect and audit, upon reasonable notice to the Service Provider, all books and records of the Service Provider related to the provision of the Services so as to verify the accuracy of all expenses reimbursed under this Agreement. As used herein the “books and records” of a party shall be deemed to include all books and records developed or maintained under or related to this Agreement and such books and records are and shall remain the property and subject to the control of such party.

(f)    Voya Services Company shall be the party responsible for the execution of the allocation process for expenses incurred by the parties hereto and facilitating resulting payments among and between the parties hereto, in each case in strict accordance with Section 2(a) above.

3.    Costs Assumed on Behalf of Broker-Dealer

(a)    Pursuant to Exchange Act Rule 17a-3, the parties hereto acknowledge that a Company registered as a broker or a dealer pursuant to Section 15 of the Securities Exchange Act of 1934 (“Company Broker-Dealer”) will make a record reflecting each expense and corresponding liability incurred relating to its business regardless of whether the liability is joint or several with any entity and regardless of whether a third party has agreed to assume the expense or liability. Such a Company Broker-Dealer and Service Provider agree that Company Broker-Dealer will record all distribution-related expenses and administrative expenses and liabilities relating to its business on its books and records.  Any expense recorded will be based on allocation methods consistent with Section 2(a) above. Notwithstanding anything to the contrary contained herein, in no event will any insurance company that is a party to this Agreement assume any expense or liability of another party hereto.

    Subject to the final sentence of the preceding paragraph, where a Service Provider agrees to assume the costs for Services provided to a Company, such Company will not be obligated to reimburse the Service Provider, and the Service Provider will have no recourse to such Company, for the costs of such services. For any expenses that a Service Provider agrees to assume, the Service Provider and the Company agree to comply with the requirements specified in Section 3 of NASD Notice to Members 03-63 (Oct. 2003) (“NTM 03-63”).    

4.    Term.

This Agreement shall be effective as of the fourth day of March, 2019, and shall end on the 31st day of December, 2019. This Agreement shall be automatically renewed on the first day of each calendar year thereafter for a twelve-month period under the same terms and conditions, subject to the provisions for termination set forth herein.

5.    Termination.

This Agreement may be terminated, with or without cause, by the Service Provider or by the Company by providing thirty (30) days' written notice to that effect addressed to the other party. Each U.S. insurance company that is subject to state insurance holding company act provisions and is a party to the Agreement shall provide notice of termination of the Agreement to its domiciliary state insurance department not later than 30 days after termination of the Agreement. Any Services provided following the date of termination which, by their nature, continue after termination shall be provided under the same terms and conditions which prevailed at the time of such notice. No Service Provider shall have an automatic right to terminate this Agreement if the Company is an insurance company that is placed in receivership pursuant to applicable domiciliary state insurance insolvency laws. Any Services provided following the date of termination which, by their nature, continue after termination shall be provided under the same terms and conditions which prevailed at the time of such notice.

6.    Standard of Service.

The Service Provider shall perform the Services in a competent and professional manner according to standards agreed upon by the Service Provider and the Company. The Service Provider agrees that it will exercise due diligence to abide by and comply with all laws, statutes, rules, regulations, and orders of any governmental authority in the performance of its Services under this Agreement. The Service Provider will conduct its business and perform its obligations in a manner which will not cause the possible revocation or suspension of the Company's Certificate(s) of Authority or cause the Company to sustain any fines, penalties, or other disciplinary action of any nature whatsoever.

7.    Limitation of Authority.

The Company shall retain ultimate control and responsibility for all Services that it has delegated to the Service Provider under this Agreement and to the extent that the Company is an insurance company, it will maintain oversight for the Services provided to the Company by the Service Provider and will monitor the Services annually for quality assurance. In no event shall the Services involve control of the management of the business and affairs of the Company. The Service Provider shall provide Services hereunder as an independent contractor, and shall act hereunder so as to assure the separate operating identity of the Company. While rendering Services to the Company pursuant to this Agreement, the Service Provider, its officers and employees shall not at any time or for any purpose be considered agents of the Company unless otherwise expressly agreed to by the parties. Under no circumstances shall the Services provided pursuant to this Agreement be deemed to be those of a third party administrator pursuant to any applicable state statutes.

8.    Indemnification.

(a)    The Company hereby agrees to indemnify, defend and hold harmless the Service Provider, its officers, directors and employees, from and against any and all claims, demands, losses, liabilities, actions, lawsuits and other proceedings, judgements and awards, and costs and expenses (including reasonable attorneys' fees), arising directly or indirectly, in whole or in part out of any action taken by the Service Provider within the scope of its duties or authority hereunder, excluding only such of the foregoing as result from the negligence or willful acts or omissions of the Service Provider, its officers, directors, agents and employees. The provisions of this section shall survive termination of this Agreement.

(b)    The Service Provider hereby agrees to indemnify, defend and hold harmless the Company and its officers, directors and employees from and against any and all claims, demands, losses, liabilities, action, lawsuits and other proceedings, judgments and awards, fines and penalties, and costs and expenses (including reasonable attorneys' fees), arising directly or indirectly, in whole or in part, out of the negligence or any willful act or omission of the Service Provider or of any of its officers, directors, agents or employees, in connection with this Agreement or the performance of the Service Provider's Services hereunder, or out of any action taken by the Service Provider beyond the scope of the Service Provider's duties or authority hereunder. The provisions of this section shall survive termination of this Agreement.

9.    Notices.

All notices, requests, and communications required or permitted under this Agreement shall be in writing and deemed given when addressed to the applicable address set forth in Exhibit B attached hereto and (i) delivered by hand to an officer of the other party, (ii) deposited with the U.S. Postal Service, as first-class certified or registered mail, postage prepaid, or (iii) deposited with an overnight courier. Any notice of a change of address shall be given in the same manner.

10.    Cooperation.

Each party to this Agreement shall cooperate with the other party, and with appropriate governmental authorities (including, without limitation, the Securities and Exchange Commission, the National Association of Securities Dealers and state insurance regulators) and shall permit such authorities reasonable access to its books and records in connection with any investigation or inquiry relating to this Agreement or the transactions contemplated hereby.

11.    Arbitration.

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award maybe entered in any Court having jurisdiction thereof.

12.    Waiver.

No waiver of any provision of this Agreement shall be deemed, or shall constitute, waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver. Failure of any party to exercise or delay in exercising any right or power granted under this Agreement shall not operate as a waiver of any such right or power.

13.    Miscellaneous.

This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement constitutes the entire agreement of the parties hereto. Assignment by any party of all or a portion of its rights and obligations under this Agreement to an affiliate will (i) be subject to the state insurance holding company act provisions governing transfers and assignments of the domiciliary state insurance department of each insurance company that is a party to this Agreement and that will either receive services from, or provide services to, such affiliate assignee; (ii) be subject to the state insurance holding company act provisions governing transfers and assignments of the assignor’s domiciliary state, to the extent that the assignor is a U.S. insurance company; and (iii) requires notice of this assignment to the domiciliary state insurance department of any insurance company that is a party to this Agreement to the extent the assignment involves such insurance company. This Agreement may be amended only by a written instrument executed by all parties and with the prior approval of the domiciliary state insurance department of each U.S. insurance company that is a party to this Agreement. If any portion of

this Agreement is invalid under any applicable statute or rule of law, it shall not affect the remainder of this Agreement which shal1 remain valid and binding. This Agreement shall be binding on the parties, their legal representatives and successors. This Agreement shall be construed in accordance with and governed by the laws of the state in which the Services are provided, without regard to principles of conflict of laws.

14.    Receivership.

No party to this Agreement may automatically terminate this Agreement if another party to this Agreement that is a U.S. insurance company (the “Insurance Affiliate”) is placed in receivership or seized by its respective domiciliary state Insurance Commissioner (“Commissioner”) pursuant to applicable domiciliary state insurance receivership statutes. In the event the Insurance Affiliate is placed in receivership or seized by its domiciliary state Commissioner pursuant to applicable domiciliary state insurance receivership statutes, (i) all of the rights of the Insurance Affiliate, as applicable, under this Agreement will extend to the receiver or the Commissioner, as applicable, and (ii) all books and records related to the Services hereunder will be made available to the receiver or the Commissioner, as applicable, immediately upon request thereby. The Insurance Affiliate will continue to maintain any systems, programs or other infrastructure notwithstanding a seizure of the Insurance Affiliate by the Commissioner under the applicable domiciliary state insurance receivership statutes, and will make them available to the receiver for as long as the Insurance Affiliate continues to receive timely payment for services rendered.

15.    Entire Agreement.

This Agreement, as amended from time to time as described herein, represents the entire agreement between the parties. The parties may, from time to time, enter into additional or other written agreements relating to other aspects of this business relationship. Such agreements shall be considered part of this Agreement and incorporated by reference. Neither party shall have any duties or responsibilities other than as specified or incorporated herein by reference.

16.    Counterparts.

This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first above written.