EXHIBIT 10.(n)
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."
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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/ ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Secretary
IIM: ING INVESTMENT MANAGEMENT, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
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