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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇-Eengelke
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Secretary
IIM: ING INVESTMENT MANAGEMENT LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
