Exhibit A
THIRD AMENDMENT TO ASSET MANAGEMENT AGREEMENT
This Third Amendment to Asset Management Agreement (this "Amendment") amends the
Asset Management Agreement between ING Investment Management LLC ("ING-IM") and
Golden American Life Insurance Company ("Client"). This Amendment is dated as of
August 18, 2003.
1. Background. ING-IM and Client are parties to an Asset Management Agreement,
dated January 20, 1998, as amended (the "Agreement"), pursuant to which
ING-IM provides Client with certain investment advisory services. ING-IM
and Client wish to clarify the limited circumstances under which ING-IM 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 ING-IM and Client that, except as may be otherwise
agreed from time to time, ING-IM 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 ING-IM from time
to time, and as may otherwise be agreed between ING-IM and Client:
(a) ING-IM shall not maintain physical custody of Client funds or
securities; and
(b) ING-IM 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 7 of the Agreement. The second sentence of Section 7
of the Agreement is hereby amended to add the language highlighted in
italics below:
"Except as specially contemplated by Section 3, ING-IM shall not maintain
custody of Client funds or securities or otherwise act as custodian for the
Account."
4. Amendment to Section 10 of the Agreement. Section 10 of the Agreement is
hereby amended to read as follows:
Section 10. LIABILITY OF ING-IM - In rendering services under this
Agreement, ING-IM will not be subject to any liability to Client or to any
other party for any act or omission of ING-IM except as a result of
ING-IM'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 Golden American Life Insurance Company
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
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Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Secretary
ING-IM: ING INVESTMENT MANAGEMENT LLC
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Executive Vice President
