EXHIBIT A
AMENDMENT TO INVESTMENT ADVISORY AGREEMENT
This Amendment to Investment Advisory Agreement (this "Amendment") amends the
Investment Advisory Agreement between ING Investment Management LLC ("IIM") and
ING Insurance Company of America, formerly known as Aetna Insurance Company of
America ("Client"). This Amendment is dated as of August 26, 2003.
1. BACKGROUND. IIM and Client are parties to an Investment Advisory Agreement,
dated March 31, 2001, as amended (the "Agreement"), pursuant to which IIM
provides Client with certain investment advisory services. IIM and Client
wish to clarify the limited circumstances under which IIM may have custody
of Client funds or securities under the Agreement. Although the parties do
not intend by this Amendment to address whether or not Original Mortgage
Documents (as defined below) are in fact securities, it is the intention of
IIM and Client that, except as may be otherwise agreed from time to time,
IIM will not have actual or constructive custody of Client funds or
securities other than Original Mortgage Documents.
2. AMENDMENT TO SECTION 3 OF THE AGREEMENT. Section 3 of the Agreement is
hereby amended to add the following to the end of such Section:
"Notwithstanding anything to the contrary in this Section 3, except with
regard such Original Mortgage Documents as are selected by IIM from time to
time, and as may otherwise be agreed between IIM and Client:
(a) IIM shall not maintain physical custody of Client funds or securities;
and
(b) IIM shall not have the power to direct any custodian or other third
party to transfer Client funds or securities, except in the case of
(i) transactions involving a delivery vs. payment or vice versa,
(ii) free receipts into Client Accounts, (iii) transfers between
Client's own accounts, (iv) transfers to satisfy margin or collateral
calls by brokers or other counterparties, and (v) other transactions
that would not reasonably be considered to result in actual or
constructive custody of Client funds or securities.
"Original Mortgage Documents" means original (a) mortgage notes,
(b) certificates of participation where more than one entity has invested in
the mortgage via a participation agreement, and (c) letters of credit, as
applicable, that are provided from time to time by borrowers as additional
security."
3. AMENDMENT TO SECTION 6 OF THE AGREEMENT. The second sentence of Section 6 of
the Agreement is hereby amended to add the language highlighted in italics
below:
"EXCEPT AS SPECIALLY CONTEMPLATED BY SECTION 3, IIM shall not MAINTAIN
CUSTODY OF CLIENT FUNDS OR SECURITIES OR OTHERWISE act as custodian for the
Account."
4. AMENDMENT TO SECTION 9 OF THE AGREEMENT. Section 9 of the Agreement is
hereby amended to read as follows:
SECTION 9. LIMITATION OF LIABILITY--In rendering services under this
Agreement, IIM will not be subject to any liability to Client or to any other
party for any act or omission of IIM except as a result of IIM's negligence,
misconduct or violation of applicable law. Nothing herein shall in any way
constitute a waiver or limitation of any rights of any party under applicable
Federal or State law.
5. AMENDED AGREEMENT. Except as specifically amended by this Amendment, each
and every term of this Agreement remains in full force and effect.
CLIENT: ING INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
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Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Secretary
IIM: ING INVESTMENT MANAGEMENT LLC
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President
